Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CIV-80119-MARRA/JOHNSON JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. _______________ ./ Related cases: 08-80232, 08-08380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591,09-80656,09-80802,09-81092 --------------~/ Defendant, Jeffrey Epstein's Reply to Plaintifrs Response In Opposition To Defendant's Emergency Motion For Independent Examination Of Plaintiff, With Incorporated Memorandum Of Law Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN") by and through his undersigned attorneys, hereby files his Reply to Plaintiffs Response In Opposition To Defendant's Emergency Motion For Independent Examination Of Plaintiff, With Incorporated Memorandum Of Law (the "Emergency Motion"), and in support, states as follows: I. On July 29, 2009, Defendant, Jeffrey Epstein filed the Emergency Motion. 2. Since the filing of the Emergency Motion, the undersigned has learned and this court has been informed that Plaintiff is in the hospital. 3. On August 11, 2009, this court entered an order granting Plaintiffs Motion for Protective Order relative to her deposition based upon Plaintiffs medical status. Defendant understands that this court will make a similar ruling relative to Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 2 of 11 Plaintiffs independent medical evaluation and, thus, will not allow same to go forward while Plaintiff is in the hospital. In that specific regard, Defendant does not seek an alternative ruling; however, Defendant must address other aspects of Plaintiffs Response. 4. Plaintiff seems to forget that this court issued its trial order requiring various deadlines to be met. In fact, Plaintiffs counsel was in a three or four-week trial in Martin County and, therefore, an agreement regarding dates of availability for Plaintiffs deposition and IME could not be reached. As such, the undersigned had no option but to unilaterally set same and file the Emergency Motions addressing those events. 5. Up until May 20, 2009, Plaintiff refused to allow Defendant to identify her by name in various third-party subpoenas directed to Plaintiffs health care providers, past and current; basic personal injury discovery. If defendant could not use CMA's name, how could the provider have provided records from a "CMA" designation? Then, on May 20, 2009, C.M.A. capitulated and filed her Notice of Withdrawal of Previously Raised Objections to Epstein's Motion to Compel and/or Identify C.M.A. in the Style of this Case and Motion to Identify C.M.A. in Third-Party Subpoenas for Purposes of Discovery, or Alternatively, Motion to Dismiss Sue Sponte (DE 23)(the "Notice of Withdrawal"). Subsequent thereto, Defendant sought records by way of subpoena. However, on June 5, 2009, Plaintiff then filed a Motion for Protective Order Regarding Treatment Records From Parent-Child Center, Inc. and Dr. Serge Thys (DE 114). On June 17, 2009, Plaintiff filed a subsequent Motion for Protective Order Regarding Treatment Records From Palm Beach County School District, Good Samaritan Hospital, Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 3 of 11 St. Mary's Hospital Dr. Gloria C. Hakkarinen, and Florida Atlantic University (DE 121). Thus, while Plaintiff agreed to allow Defendant to identify her in various third-party subpoenas directed to her physicians, she utilized another delay tactic to prevent discovery of her past medical and psychological history from being discovered. After Plaintiff allowed Defendant to use her name in third party subpoenas, Defendant served subpoenas on: a. Palm Beach County School District b. Dr. Serge Thys c. Parent/Child Center d. Good Samaritan Hospital e. St. Mary's Hospital f. Dr. Gloria C. Hakkarinen g. Florida Atlantic University CMA then filed two (2) protective orders, and all records that were obtained ( or were to be obtained) went sent to her attorney, i.e. discovery was halted by CMA not the Defendant. Without the health care provider information, including psychological/ psychiatric records, Defendant contended that it would be impossible to have a meaningful compulsory psychological examination by a defense expert. For example, Defendant's attorneys recently took the deposition of Susan Pope, who counseled Plaintiff for the last 12 years. Significantly, Susan Pope could not identify anywhere in her records from 2003 through 2009 wherein Plaintiff ever mentioned Jeffrey Epstein. See Exhibit "A". Obviously, such information (or lack thereof) is telling and goes directly to the heart of Plaintiff's alleged damages claim and Defendant's defenses Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 4 of 11 thereto. As such, Plaintiffs continued requests for this court to allow her to assert allegations against Defendant and subsequently limit the discovery he seeks to disprove those allegations should be denied. 6. In furtherance of Plaintiffs continued efforts to delay and prevent discovery, Plaintiff now asks this court in her Response Motion to: a. limit the time for conducting the examination, including any testing to six (6) hours; b. limit the scope of the examination to preclude Plaintiff from being subjected to repeated questioning on multiple occasions regarding personal and highly sensitive areas including Plaintiffs' medical history, psychiatric history, sexual history social history, sexual abuse history, substance abuse history, etc .. and c. authorizing the presence of a representative from Plaintiffs counsel's office to attend the examination. Defendant Should Be Afforded Between 6-8 Hours To Conduct The IME And The Examination Proposed By Defendant's Expert Should Not Be Limited Since Such A Limitation Would Unduly Prejudice Defendant's Expert's Analysis Of Plaintiff 7. Fed.R.Civ.P. 35(a). Rule 35(a) provides, in pertinent part: When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, condition, and scope of the examination and the person or persons by whom it is to be made. ( emphasis added) 8. A Cursory review of the Amended Complaint shows that Plaintiff has alleged 31 Counts against the Defendant. Limiting the IME to only 6 hours would allow for Defendant's expert to dedicate only 12 minutes of his time and evaluation to each count in Plaintiffs complaint. Accordingly, the full six to eight (8) hours is required, as Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 5 of 11 requested by Dr. Hall. While different, Rule 30 governing depositions allows for seven (7) hours - this court has the discretion to enter an order allowing for 8 hours relative to an IME. See infra. Furthermore, Defendant's expert has provided an affidavit consistent with Rule 3 5 stating the scope of his examination and the time needed to complete same. See (DE 228) Dr. Hall has adequately set forth his need to conduct his evaluation, and his analysis would suffer should this court restrict same in time or scope. Lahr v. Fullbright & Jaworski, LLP., 164 F.R.D 196, 202-204 (N.D. Texas 1995)(refusing to limit examination); Morton v. Haskell Co., No. 94-976-CIV-J-20, 1995 WL 819182, at *3 (N.D.Fla. Sept.12, 1995) (declining to limit duration of examination); See also Affidavit of Dr. Hall, Exhibit "B". Mann v. Newport Tankers Corp., 96 F.R.D. 31, 33 (S.D.N.Y. 1982)(requiring Plaintiff to submit to 2 day examination). 9. As to the scope of the deposition, see supra, Plaintiff once again seeks to have this court enter an order protecting her from discovery (i.e., from filling out the applicable questionnaire required by Defendant's expert and from answering questions relative to her damages). This is simply specious. 10. CMA is seeking millions of dollars in personal injury damages. In fact, Plaintiffs allegations place her mental, emotional and psychological states at issue. For instance, in her answers to interrogatory nos. 9 and l 0, which seek information about C.M.A.'s damage claims, Plaintiff answered that: I have bi-polar disorder and manic depression. I lost my self-esteem. I began cutting myself on my arms and legs and developed drug problems. Permanent injuries are psychological. (Interrog. No. 9). I am claiming compensation for mental anguish, mental pain, psychic trauma, and loss of enjoyment of life. These damages will be evaluated by a jury who will provide their own methods of computation in an amount of at Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 6 of 11 least the statutory minimum established by 18 U.S.C.A. §2255. (Interrog. No. 10). 11. In her 1st Amended Complaint, relevant to her damages claims, Plaintiff alleges: ... C.M.A., has in the past suffered, and will in the future suffer, physical injury, pain and suffering, emotional distress, psychological trauma, mental anguish, humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion of her privacy and other damages . . . . The then minor Plaintiff incurred medical and psychological expenses ... and will in the future suffer additional medical and psychological expenses. The Plaintiff C.M.A. has suffered loss of income, a loss of the capacity to earn income in the future, and a loss of capacity to enjoy life. These injuries are permanent in nature and the Plaintiff, C.M.A., will continue to suffer these losses in the future. (1 st Am. Complaint, Counts I - XXX (18 U.S.C. §2255), ,i,i25, 31, 37, 43, 49, 55, 61, 67, 73, 79, 85, 91, 97, 103, 109, 115, 121, 127, 133, 139, 145, 151, 157, 163, 169, 175, 181, 187, 193; Count XXXI (Sexual Battery), iJl99.) See Fajardo v. Pierce County, 2009 WL 1765756 (W.D. Wash. 2009)(allegations of specific disorders amount to more than garden variety disorders and thus Plaintiff waived physician-patient privilege as it involved a complex medical issue); Alexander v. City of Bellingham, 2008 WL 2077970 (W.D. Wash. 2008); Grit v. Target Corp., 2008 WL 1777744 (M.D. Fla. 2008); Trenary v. Bush Entertainment Corp., 2006 WL 3333621 (M.D. Fla. 2006)(responses to interrogatories placed plaintiffs mental condition at issue); Tracey P. v. Sarasota County, 2006 WL 1678908 (M.D. Fla. 2006)(responses to interrogatories delineating depression and bi-polar disorder are more than simple allegations of emotional distress thus placing plaintiffs mental condition at issue). 12. Next, the following represents conduct and events that had to have had a substantial effect on CMA's life and emotional/psychological makeup. These are merely examples and just the tip of the iceberg, but are necessary for Defendant's expert to cover due to the damages Plaintiff seeks. Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 7 of 11 • On March 27, 2000, in Palm Beach County Sheriffs Office Case #00-54914, CMA threw a cinder block at her mother's boyfriend's car. • On April 11, 2000, in Palm Beach County Sheriffs Office Case #00-61772, officers responded to the house in reference to child abuse involving CMA, her brothers, and her mother. • On June 29, 2000, in Palm Beach County Sheriffs Office Case #00-95746, CMA' s mother contacted the police after hearing CMA 's friends threaten to kill her(CMA). • On July 26, 2000, in Palm Beach County Sheriffs Office Case #00-106500, officers responded in reference to Criminal Mischief. CMA was a victim of having her window broken at her house by a Tonya White. White stated she went to CMA's house to confront CMA about CMA having sexual relations with her boyfriend. CMA would have been thirteen (13) years old at this time. • On August 24, 2000, in Palm Beach County Sheriffs Office Case #00-118442, CMA was arrested/or aggravated assault after chasing her brother around the house with a knife. • On September 5, 2001, in Palm Beach County Sheriffs Office Case #01-119103, CMA's mother reported her missing. At the time CMA was on house detention for previous crimes and for being truant from school. A pick-up order was in effect and CMA was subsequently detained. • On November 24, 2001, in Palm Beach County Sheriffs Office Case #01- 15023 7, officers responded in reference to a Battery. CMA and her brother witnessed their mother being beaten by her then boyfriend, Lance Bell. • On March 26, 2002, in Palm Beach County Sheriffs Office Case #02-48096, officers responded to the house in reference to child abuse involving CMA, her brothers, and her mother. • On April 6, 2002, in Palm Beach County Sheriffs Office Case #02-571, CMA's mother was arrested for possession of crack cocaine and CMA and her brothers were removed from their home. • On October 8, 2002, in Palm Beach County Case #02MH1402, CMA's mother filed a Marchman Act Petition naming CMA after she told a judge that she was hospitalized for overdosing on Xanax and Marijuana, was truant from school, has anger issues, mental disabilities, and needs treatment for self inflicting wounds. The case was closed on October 31, 2002, because CMA was to be in court the following day for a probation violation. Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 8 of 11 • On July 27, 2004, in Palm Beach County Case #04MH1530, CMA's mother filed a Marchman Act Petition naming CMA after she told a judge that she was constantly testing positive for cocaine and marijuana. • On August 16, 2004, in Palm Beach County Case #04MH1676, CMA's mother filed a Marchman Act Petition naming CMA after she told a judge that treatment at home was not working and a residential facility would be needed. • On August 22, 2004, in Palm Beach County Case #05MH1934, CMA's mother filed a case naming CMA for a Petition for Involuntary Assessment for Substance Abuse. CMA's mother stated that CMA was homeless, unclean, and prostituting herself. • On August 22, 2005, in Palm Beach County Case #05MH1667, CMA's mother filed a case naming CMA for a Petition for Involuntary Assessment for Substance Abuse. CMA's mother claimed that CMA was homeless, unclean, has been prostitution herself for crack cocaine, is addicted to Xanax, is a cutter and self mutilator, living in a hotel, and has been diagnosed as Bipolar and Schizophrenic. 13. Clearly, Plaintiff has alleged specific psychological disorders (bi-polar and manic depression), and seeks to recover medical expenses associated with those complex medical issues. Moreover, she has alleged and seeks to recover personal injury damages including, but not limited to, physical injury, pain and suffering, emotional distress, psychological trauma, mental anguish, humiliation, embarrassment, loss of self-esteem, loss of dignity, invasion of her privacy and other damages. As such, full knowledge of Plaintiffs past and present medical and psychological histories is not only permitted under the law, but is necessary to arrive at a full level of damages. To hold otherwise will result in reversible error, and will prevent Epstein from defending himself and this case, thereby violating his due process rights. Further, this court has already entered similar orders allowing for such discovery - this matter should not be treated any differently. Accordingly, Plaintiffs request to limit the time or scope of the IME should be denied. Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 9 of 11 14. As for Plaintiffs request to have a representative in the room with her during the !ME, same should be denied. See Affidavit of Dr. Hall, Ex. "B". First, consistent with the related cases, Plaintiff may have the IME videotaped. However, the operator of the video-camera may not be present. Second, the undersigned will agree that an agent may be present at the undersigned's firm during the IME; however, that person may not be present in the room where the examination is taking place. However, that person shall be permitted to sit right outside the office where the examination is taking place. Third, Plaintiff has failed to specify which representative she intends to be present at the IME . • As the court is well aware, IMEs are adversarial in nature. Therefore, having an attorney and/or Plaintiffs expert in the room would create an adversarial forum that would undoubtedly interfere with the IME. Finally, Plaintiff has failed to cite any case law supporting her request to have someone present in the room with her during the IME. Accordingly, same should be denied. WHEREFORE, Epstein, through his counsel, requests that this court enter an Order: a. requiring that Plaintiffs counsel keep the undersigned updated as to Plaintiffs medical condition and provide Plaintiffs counsel with a date to conduct the IME within 2 weeks after her release from the hospital; b. refusing to limit the time and scope of CMA's !ME and requiring her to fill-out the necessary questionnaire provided to her counsel; and c. instructing Plaintiff that she may videotape the IME but she may not have someone present in the room with her, which includes an operator of the video camera; and d. for such other and further relief as this c s just and proper. MICH L J. , ESQ. Florida Bar #617296 Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009

Page 10 of 11 being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this fl day of µt'f3f- , 2009 By:_.:::::..-f--:,,L..::::::::::_---=:::=-::-- ROBER . CRITTON, JR., ESQ. Florida Bar No. 224162 [email protected] MICHAEL J. PIKE, ESQ. Florida Bar #617296 [email protected] BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 561/842-2820 Phone 561/515-3148 Fax (Counsel for Defendant Jeffrey Epstein) Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRA/JOHNSON Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mermelstein & Horowitz, P.A. 18205 Biscayne Boulevard Suite 2218 Miami, FL 33160 305-931-2200 Fax: 305-931-0877 [email protected] [email protected] Counsel for Plaintiffs In related Cases Nos. 08-80069, 08-80119, 08-80232, 08-80380, 08-80381, 08-80993, 08-80994 Richard Horace Willits, Esq. Richard H. Willits, P.A. 2290 10th Avenue North Brad Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard Suite 1650 Fort Lauderdale, FL 33301 Phone: 954-522-3456 Fax: 954-527-8663 [email protected] Counsel for Plaintiff in Related Case No. 08-80893 Paul G. Cassell, Esq. Pro Hae Vice 332 South 1400 E, Room 101 Salt Lake City, UT 84112 801-585-5202 801-585-6833 Fax Case 9:08-cv-80119-KAM Document 273 Entered on FLSD Docket 08/17/2009