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Filing # 142368294 E-Filed 01/20/2022 05:18:05 PM
IN THE CIRCUIT COURT OF THE
19th JUDICIAL CIRCUIT IN AND
OR MARTIN COUNTY, FLORIDA
FREDERIC CHARLES GREER, III, and
MELISSA ANNE GREER, as Husband and
Wife, and FREDERIC CHARLES GREER, III CASE NO: 2019-CA-000015
and MELISSA ANNE GREER, individually,
Plaintiffs,
vs.
MARTIN MEMORIAL MEDICAL CENTER,
INC. d/b/a MARTIN MEDICAL CENTER, a
Florida Corporation; KUNAL CHAUDHRY, M.D.;
and CARDIOLOGY ASSOCIATES OF STUART,
Y
P.A., a Florida profit corporation,
Defendants.
O P
DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER's d/b/a MARTIN
C
MEDICAL CENTER MOTION IN LIMINE TO PRECLUDE REFERENCE TO CO-
DEFENDANTS' SETTLEMENT
Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN MEDICAL
CENTER ("MMMC"), by and through the undersigned counsel moves for an order in limine to
preclude Plaintiffs' counsel from referencing, implying or admitting evidence of Plaintiffs'
settlement with Co-Defendants, KUNAL CHAUDHRY, M.D. and CARDIOLOGY
ASSOCIATES OF STUART, P.A. ("Co-Defendants"). In support of its motion, MMMC states as
follows:
1. This is a medical malpractice action in which it is alleged that MMMC by and
through its nursing care and the actions of its alleged agent Dr. Kunal Chaudry was negligent in
the care and treatment of Plaintiff, Frederic Charles Greer, III ("Mr. Greer").
2. Although Dr. Chaudhry and his professional organization were named defendants
in this action, they settled with Plaintiffs prior to trial.
1
3. Evidence of, reference to, or implication that Plaintiffs settled with Co-Defendants
is highly prejudicial to MMMC and prohibited by statute. Therefore Plaintiffs' counsel must be
precluded from making or eliciting such statements.
4. Florida Statute § 768.041(3) expressly prohibits anyone from disclosing the fact of
a party's settlement to the jury: "The fact of such a release or covenant not to sue, or that any
defendant has been dismissed by order of the court shall not be made known to the jury." Fla. Stat.
§ 768.041(3). "The unambiguous language of the statute admits no exceptions . . . ." Holmes v.
Area Glass, Inc., 117 So. 3d 492 (Ha. 1st DCA 2013) (citing Saleeby v. Rocky Elson Const., Inc.,
3 So. 2d 1078 (Fla. 2009)).
5.
P Y
Florida case law has interpreted Section 768.041(3) and consistently held that a
C O
party may not disclose to the jury that a settlement has been made with an "empty chair" or a
nonparty responsible for a plaintiff's injuries. Muhammad v. Toys R Us, Inc., 668 So. 2d 254 (Fla.
1st DCA 1996). "Though it may be permissible to point to an `empty chair' and imply that a
nonparty is liable, it is not permissible to point out that the empty chair was once a defendant in
the case." Webb v. Priest, 413 So. 2d 43, 46 (Fla. 3d DCA 1982).
6. A violation of the statutory prohibition is reversible error or grounds for a mistrial.
Holmes, 177 So. 3d at 495; Henry v. Beacon Ambulance Service, Inc., 424 So. 2d 914 (Fla. 4th
DCA 1982) ("Testimony as to the fact of a settlement is inadmissible and if allowed warrants a
new trial."); Vunich v. Ross, 893 So. 2d 690 (Fla. 5th DCA 2005) (affirming the trial court's grant
of a mistrial for reference to co-defendant's settlement).
7. Florida courts have held that it is improper to even imply or suggest that parties
have settled. In Vucinich, 893 So. 2d at 692, the First District affirmed a trial court who granted a
mistrial based on the following statements made when discussing the verdict form, which implied
2
settlement: "it's not an issue of you apportioning damages whether you care or don't care for what
[the settling defendant] did; whether you draw any conclusions or don't draw any conclusions
from his absence here or that of his partner. That's not for your consideration. No portion of
the verdict will ever be paid by them." (Emphasis added). Similarly in Ricks, 822 So. 2d 502
(Fla. 2002), Florida's Supreme Court quashed the decision of the Fourth District and affirmed the
trial court judge who granted a mistrial where a party implied settlement of a former defendant by
saying the following: "It will not be something that you need to consider as to why they aren't in
this courtroom, although you might want to ask yourself that question." (Emphasis added).
8.
P Y
This Court should prohibit any mention of settlement or reference or implication
that Dr. Chaudhry is absent as it is expressly prohibited by statute and case law and irrelevant to
C O
the issues at trial. Any reference to the fact that Co-Defendants settled would be particularly
prejudicial to MMMC in this case as Plaintiffs allege that MMMC is vicariously liable for the acts
of Dr. Chaudhry. See Vunich, 893 So. 2d at 694 ("The harm done by mentioning settlements is
that the jury may believe that where there has been a payment there must have been liability.");
accord City of Coral Gables v. Jordan, 186 So. 2d 60 (Fla. 3d DCA 1966), aff'd, 191 So. 2d 39
(Fla. 1966).
WHEREFORE Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN
MEDICAL CENTER requests this Court grant this Motion in Limine to Preclude Plaintiffs'
counsel from referencing, implying, or admitting evidence of Plaintiffs' settlement with Co-
Defendants, KUNAL CHAUDHRY, M.D. and CARDIOLOGY ASSOCIATES OF STUART,
P.A., and any other relief this Court deems just and proper.
3
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 20th day of January, 2022, a copy of the foregoing
was served via the Florida E-Filing Portal to the parties on the attached service list.
STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
Attorneys for Martin Memorial Medical Center, Inc.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
Phone: (954) 462-9500
Fax: (954) 462-95
B
THO , ESQUIRE
FB . 008060
Y
taubin@stearnsweaver.com
MATTHEW S. PODOLNICK, ESQUIRE
O P
FBN: 112126
mpodolnick@steamsweaver.com
C
4
SERVICE LIST
Peter J. Somera Jr., Esq. Geoffrey N. Fieger, Esq.
Paul M. Silva, M.D., Esq. Fieger Law
Somera & Silva, LLP 19390 West Ten Mile Road
2255 Glades Road, Suite 232W Southfield, MI 48075
Boca Raton, FL 33431 Phone: (248) 355-5555
Phone: (561) 981-8881 Fax: (248) 355-5148
Fax: (561) 981-8887 G.Fieger@Fiegerlaw.com
pleadings@somerasilva.com S.Teal@Fiegerlaw.com
litigation@somerasilva.com Co-Attorneysfor Plaintiffs
Attorneysfor Plaintiffs
Adam Richardson, Esq.
Bard D. Rockenbach, Esq.
Burlington & Rockenbach, P.A.
444 West Railroad Avenue
West Palm Beach, FL 33401
Tel: 561-721-0400
P Y
O
ajr@FLAppellateLaw.com
bdr@FLAppellateLaw.com
C
fa@FLAppellateLaw.com
Appellate attorneysfor Plaintiffs
Preview
Filing # 142368294 E-Filed 01/20/2022 05:18:05 PM IN THE CIRCUIT COURT OF THE 19th JUDICIAL CIRCUIT IN AND OR MARTIN COUNTY, FLORIDA FREDERIC CHARLES GREER, III, and MELISSA ANNE GREER, as Husband and Wife, and FREDERIC CHARLES GREER, III CASE NO: 2019-CA-000015 and MELISSA ANNE GREER, individually, Plaintiffs, vs. MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN MEDICAL CENTER, a Florida Corporation; KUNAL CHAUDHRY, M.D.; and CARDIOLOGY ASSOCIATES OF STUART, Y P.A., a Florida profit corporation, Defendants. O P DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER's d/b/a MARTIN C MEDICAL CENTER MOTION IN LIMINE TO PRECLUDE REFERENCE TO CO- DEFENDANTS' SETTLEMENT Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN MEDICAL CENTER ("MMMC"), by and through the undersigned counsel moves for an order in limine to preclude Plaintiffs' counsel from referencing, implying or admitting evidence of Plaintiffs' settlement with Co-Defendants, KUNAL CHAUDHRY, M.D. and CARDIOLOGY ASSOCIATES OF STUART, P.A. ("Co-Defendants"). In support of its motion, MMMC states as follows: 1. This is a medical malpractice action in which it is alleged that MMMC by and through its nursing care and the actions of its alleged agent Dr. Kunal Chaudry was negligent in the care and treatment of Plaintiff, Frederic Charles Greer, III ("Mr. Greer"). 2. Although Dr. Chaudhry and his professional organization were named defendants in this action, they settled with Plaintiffs prior to trial. 1 3. Evidence of, reference to, or implication that Plaintiffs settled with Co-Defendants is highly prejudicial to MMMC and prohibited by statute. Therefore Plaintiffs' counsel must be precluded from making or eliciting such statements. 4. Florida Statute § 768.041(3) expressly prohibits anyone from disclosing the fact of a party's settlement to the jury: "The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury." Fla. Stat. § 768.041(3). "The unambiguous language of the statute admits no exceptions . . . ." Holmes v. Area Glass, Inc., 117 So. 3d 492 (Ha. 1st DCA 2013) (citing Saleeby v. Rocky Elson Const., Inc., 3 So. 2d 1078 (Fla. 2009)). 5. P Y Florida case law has interpreted Section 768.041(3) and consistently held that a C O party may not disclose to the jury that a settlement has been made with an "empty chair" or a nonparty responsible for a plaintiff's injuries. Muhammad v. Toys R Us, Inc., 668 So. 2d 254 (Fla. 1st DCA 1996). "Though it may be permissible to point to an `empty chair' and imply that a nonparty is liable, it is not permissible to point out that the empty chair was once a defendant in the case." Webb v. Priest, 413 So. 2d 43, 46 (Fla. 3d DCA 1982). 6. A violation of the statutory prohibition is reversible error or grounds for a mistrial. Holmes, 177 So. 3d at 495; Henry v. Beacon Ambulance Service, Inc., 424 So. 2d 914 (Fla. 4th DCA 1982) ("Testimony as to the fact of a settlement is inadmissible and if allowed warrants a new trial."); Vunich v. Ross, 893 So. 2d 690 (Fla. 5th DCA 2005) (affirming the trial court's grant of a mistrial for reference to co-defendant's settlement). 7. Florida courts have held that it is improper to even imply or suggest that parties have settled. In Vucinich, 893 So. 2d at 692, the First District affirmed a trial court who granted a mistrial based on the following statements made when discussing the verdict form, which implied 2 settlement: "it's not an issue of you apportioning damages whether you care or don't care for what [the settling defendant] did; whether you draw any conclusions or don't draw any conclusions from his absence here or that of his partner. That's not for your consideration. No portion of the verdict will ever be paid by them." (Emphasis added). Similarly in Ricks, 822 So. 2d 502 (Fla. 2002), Florida's Supreme Court quashed the decision of the Fourth District and affirmed the trial court judge who granted a mistrial where a party implied settlement of a former defendant by saying the following: "It will not be something that you need to consider as to why they aren't in this courtroom, although you might want to ask yourself that question." (Emphasis added). 8. P Y This Court should prohibit any mention of settlement or reference or implication that Dr. Chaudhry is absent as it is expressly prohibited by statute and case law and irrelevant to C O the issues at trial. Any reference to the fact that Co-Defendants settled would be particularly prejudicial to MMMC in this case as Plaintiffs allege that MMMC is vicariously liable for the acts of Dr. Chaudhry. See Vunich, 893 So. 2d at 694 ("The harm done by mentioning settlements is that the jury may believe that where there has been a payment there must have been liability."); accord City of Coral Gables v. Jordan, 186 So. 2d 60 (Fla. 3d DCA 1966), aff'd, 191 So. 2d 39 (Fla. 1966). WHEREFORE Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN MEDICAL CENTER requests this Court grant this Motion in Limine to Preclude Plaintiffs' counsel from referencing, implying, or admitting evidence of Plaintiffs' settlement with Co- Defendants, KUNAL CHAUDHRY, M.D. and CARDIOLOGY ASSOCIATES OF STUART, P.A., and any other relief this Court deems just and proper. 3 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 20th day of January, 2022, a copy of the foregoing was served via the Florida E-Filing Portal to the parties on the attached service list. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Attorneys for Martin Memorial Medical Center, Inc. 200 East Las Olas Blvd., Suite 2100 Fort Lauderdale, FL 33301 Phone: (954) 462-9500 Fax: (954) 462-95 B THO , ESQUIRE FB . 008060 Y taubin@stearnsweaver.com MATTHEW S. PODOLNICK, ESQUIRE O P FBN: 112126 mpodolnick@steamsweaver.com C 4 SERVICE LIST Peter J. Somera Jr., Esq. Geoffrey N. Fieger, Esq. Paul M. Silva, M.D., Esq. Fieger Law Somera & Silva, LLP 19390 West Ten Mile Road 2255 Glades Road, Suite 232W Southfield, MI 48075 Boca Raton, FL 33431 Phone: (248) 355-5555 Phone: (561) 981-8881 Fax: (248) 355-5148 Fax: (561) 981-8887 G.Fieger@Fiegerlaw.com pleadings@somerasilva.com S.Teal@Fiegerlaw.com litigation@somerasilva.com Co-Attorneysfor Plaintiffs Attorneysfor Plaintiffs Adam Richardson, Esq. Bard D. Rockenbach, Esq. Burlington & Rockenbach, P.A. 444 West Railroad Avenue West Palm Beach, FL 33401 Tel: 561-721-0400 P Y O ajr@FLAppellateLaw.com bdr@FLAppellateLaw.com C fa@FLAppellateLaw.com Appellate attorneysfor Plaintiffs