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Filing # 105351198 E-Filed 03/24/2020 01:02:03 PM
IN THE CIRCUIT COURT OF THE
19 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,
P.A., a Florida profit corporation,
Defendants.
/
DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER’s d/b/a MARTIN
MEDICAL CENTER MOTION IN LIMINE TO PROHIBIT COUNSEL FROM
MAKING REMARKS WHICH BOLSTER OR DIMINISH THE CREDIBILITY
OF WITNESSES OR AUTHORITATIVENESS OF TEXTS
Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN
MEDICAL CENTER, by and through its undersigned counsel, moves for an order in limine to
preclude any remarks by counsel for Plaintiffs intended to bolster or diminish the credibility of
witnesses in the eyes of the jury or to bolster the alleged authoritativeness of texts or treatises
upon which Plaintiffs rely.
Rule 4-3.4(e) of the Rules of Professional Responsibility provides, in pertinent part as
follows:
A lawyer shall not:
(e) in trial, state a personal opinion about the credibility of a witness unless
the statement is authorized by current rule or case law, allude to any matter
that the lawyer does not reasonably believe is relevant or that will not be
supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to
Electronically Filed Martin 03/24/2020 01:02 PM
GREER V MMMC, et. al.
2019-CA-00015
the justness of a cause, the culpability of a civil litigant, or the guilt or
innocence of an accused;
Rule 4-3.4(e), Rules Regulating the Florida Bar (2013).
Defendant seeks an order prohibiting Plaintiffs’ counsel from making comments or
remarks in the presence of the jury designed or intended to bolster or diminish the credibility of
any witness or to bolster the authoritativeness of any text, treatise, or medical literature upon
which Plaintiffs rely. Commenting on the authoritativeness of a text or treatise, such as a passing
reference that a treatise is the leading book in the field, is no different from commenting on the
credibility of a witness and is equally improper. Commenting on the authoritativeness of a
medical text refers to extra-testimonial facts. See Ryan v. State of Florida, 457 So. 2d 1084,
1090 (Fla. 4th DCA 1984). Statements regarding the credibility of witnesses are also improper
under the Rules of Professional Responsibility and Florida precedent. See Bocher v. Glass, 874
So. 2d 701 (Fla. 1st DCA 2004); Muhammad v. Toys “R” Us, Inc., 668 So, 2d 254 (Fla. lst DCA
1996).
As stated in Muhammad:
An attorney should not assert in argument his personal belief in his
client nor in the justice of his cause. (Citations omitted.) By doing
so, an attorney removes himself from his position as an advocate
and as an officer of the court and, in effect, becomes an additional
witness for his client, not subject to cross examination. His
knowledge of the case is purely hearsay or opinion evidence and
would not be admissible from any witness.
Id. at 258, quoting, Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227, 229 (Fla. 3d DCA
1967). The First DCA also cautioned in Bocher: “If we are interested in the integrity of the
process by which a jury determines disputed facts, including damages in personal injury cases,
GREER V MMMC, et. al.
2019-CA-00015
we must not allow this instruction [Fla. Std. Jury Instr. (Civ.) 7.1]! to become mere window
dressing for a procedure that, without proper demarcation by a trial judge, can be steered all too
easily into a morass of prejudice, sympathy, bias, and emotion.” Bocher, 874 So. 2d at 705.
WHEREFORE, Defendant respectfully requests the Court to prohibit counsel for
Plaintiffs from making any remarks or comments in the presence of the jury designed or intended
to bolster or diminish the credibility of any witness or to bolster the authoritativeness of any text,
treatise, or medical literature upon which Plaintiffs rely.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this. ‘day of March, 2020, 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) 462-9567
By: Mews 2
THOMAS G. AUBIN, ESQUIRE
FBN: 008060
taubin@stearnsweaver.com
MATTHEW S. PODOLNICK, ESQUIRE
FBN: 112126
mpodolnick@stearnsweaver.com
' The Bocher court cited to Florida Standard Jury Instruction (Civil) 7.1 as follows: “In reaching your verdict[s],
you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or
against a party. Your verdict[s] must be based on the evidence that has been received and the law on which I have
instructed you.” Bocher, 874 So.2d at 705.
GREER V MMMC, et. al.
2019-CA-00015
SERVICE LIST
Peter J. Somera Jr., Esq. Keith J. Puya, Esq.
Paul M. Silva, M.D., Esq. Hector R. Buigas, Esq.
Somera & Silva, LLP Law Offices of Keith J. Puya, P.A.
2255 Glades Road, Suite 232W 4880 Donald Ross Road, Suite 225
Boca Raton, FL 33431 Palm Beach Gardens, FL 33418
Phone: (561) 981-8881 Phone: (561) 408-3772
Fax: (561) 981-8887 Fax: (561) 408-3759
leadings somerasilva.com service@puyalaw.com
litigation@somerasilva.com Attorneys for Defendants Kunal Chaudhry,
Attorneys for Plaintiffs M.D. and Cardiology Associates of Stuart,
P.A.
Dinah Stein, Esq. Adam Richardson, Esq.
Hicks, Poerter, Ebenfeld & Stein Burlington & Rockenbach, P.A.
799 Brickell Plaza, 9°" Floor 444 West Railroad Avenue
Miami, FL 33131 West Palm Beach, FL 33401
Phone: (305) 375-8171 Tel: 561-721-0400
dstein@mhickslaw.com it@FLAppellateLaw.com
Attorneys for Defendants Kunal Chaudhry, fa@FLAppellateLaw.com
M.D. and Cardiology Associates of Stuart, Appellate attorneys for Plaintiffs
PA,
#8268367 vi
Preview
Filing # 105351198 E-Filed 03/24/2020 01:02:03 PM IN THE CIRCUIT COURT OF THE 19 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, P.A., a Florida profit corporation, Defendants. / DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER’s d/b/a MARTIN MEDICAL CENTER MOTION IN LIMINE TO PROHIBIT COUNSEL FROM MAKING REMARKS WHICH BOLSTER OR DIMINISH THE CREDIBILITY OF WITNESSES OR AUTHORITATIVENESS OF TEXTS Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN MEDICAL CENTER, by and through its undersigned counsel, moves for an order in limine to preclude any remarks by counsel for Plaintiffs intended to bolster or diminish the credibility of witnesses in the eyes of the jury or to bolster the alleged authoritativeness of texts or treatises upon which Plaintiffs rely. Rule 4-3.4(e) of the Rules of Professional Responsibility provides, in pertinent part as follows: A lawyer shall not: (e) in trial, state a personal opinion about the credibility of a witness unless the statement is authorized by current rule or case law, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to Electronically Filed Martin 03/24/2020 01:02 PM GREER V MMMC, et. al. 2019-CA-00015 the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused; Rule 4-3.4(e), Rules Regulating the Florida Bar (2013). Defendant seeks an order prohibiting Plaintiffs’ counsel from making comments or remarks in the presence of the jury designed or intended to bolster or diminish the credibility of any witness or to bolster the authoritativeness of any text, treatise, or medical literature upon which Plaintiffs rely. Commenting on the authoritativeness of a text or treatise, such as a passing reference that a treatise is the leading book in the field, is no different from commenting on the credibility of a witness and is equally improper. Commenting on the authoritativeness of a medical text refers to extra-testimonial facts. See Ryan v. State of Florida, 457 So. 2d 1084, 1090 (Fla. 4th DCA 1984). Statements regarding the credibility of witnesses are also improper under the Rules of Professional Responsibility and Florida precedent. See Bocher v. Glass, 874 So. 2d 701 (Fla. 1st DCA 2004); Muhammad v. Toys “R” Us, Inc., 668 So, 2d 254 (Fla. lst DCA 1996). As stated in Muhammad: An attorney should not assert in argument his personal belief in his client nor in the justice of his cause. (Citations omitted.) By doing so, an attorney removes himself from his position as an advocate and as an officer of the court and, in effect, becomes an additional witness for his client, not subject to cross examination. His knowledge of the case is purely hearsay or opinion evidence and would not be admissible from any witness. Id. at 258, quoting, Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227, 229 (Fla. 3d DCA 1967). The First DCA also cautioned in Bocher: “If we are interested in the integrity of the process by which a jury determines disputed facts, including damages in personal injury cases, GREER V MMMC, et. al. 2019-CA-00015 we must not allow this instruction [Fla. Std. Jury Instr. (Civ.) 7.1]! to become mere window dressing for a procedure that, without proper demarcation by a trial judge, can be steered all too easily into a morass of prejudice, sympathy, bias, and emotion.” Bocher, 874 So. 2d at 705. WHEREFORE, Defendant respectfully requests the Court to prohibit counsel for Plaintiffs from making any remarks or comments in the presence of the jury designed or intended to bolster or diminish the credibility of any witness or to bolster the authoritativeness of any text, treatise, or medical literature upon which Plaintiffs rely. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this. ‘day of March, 2020, 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) 462-9567 By: Mews 2 THOMAS G. AUBIN, ESQUIRE FBN: 008060 taubin@stearnsweaver.com MATTHEW S. PODOLNICK, ESQUIRE FBN: 112126 mpodolnick@stearnsweaver.com ' The Bocher court cited to Florida Standard Jury Instruction (Civil) 7.1 as follows: “In reaching your verdict[s], you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against a party. Your verdict[s] must be based on the evidence that has been received and the law on which I have instructed you.” Bocher, 874 So.2d at 705. GREER V MMMC, et. al. 2019-CA-00015 SERVICE LIST Peter J. Somera Jr., Esq. Keith J. Puya, Esq. Paul M. Silva, M.D., Esq. Hector R. Buigas, Esq. Somera & Silva, LLP Law Offices of Keith J. Puya, P.A. 2255 Glades Road, Suite 232W 4880 Donald Ross Road, Suite 225 Boca Raton, FL 33431 Palm Beach Gardens, FL 33418 Phone: (561) 981-8881 Phone: (561) 408-3772 Fax: (561) 981-8887 Fax: (561) 408-3759 leadings somerasilva.com service@puyalaw.com litigation@somerasilva.com Attorneys for Defendants Kunal Chaudhry, Attorneys for Plaintiffs M.D. and Cardiology Associates of Stuart, P.A. Dinah Stein, Esq. Adam Richardson, Esq. Hicks, Poerter, Ebenfeld & Stein Burlington & Rockenbach, P.A. 799 Brickell Plaza, 9°" Floor 444 West Railroad Avenue Miami, FL 33131 West Palm Beach, FL 33401 Phone: (305) 375-8171 Tel: 561-721-0400 dstein@mhickslaw.com it@FLAppellateLaw.com Attorneys for Defendants Kunal Chaudhry, fa@FLAppellateLaw.com M.D. and Cardiology Associates of Stuart, Appellate attorneys for Plaintiffs PA, #8268367 vi