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Filing # 105345399 E-Filed 03/24/2020 12:04:27 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 PRECLUDE CUMULATIVE EXPERT
TESTIMONY
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 cumulative expert testimony by Plaintiffs’ retained expert witnesses, Dr. Andrew
Selwyn, Dr. George Tolis, and Dr. Eli Gelfand. In support of its motion, Defendant states as
follows.
Plaintiffs’ retained experts - Dr. Andrew Selwyn, Dr. George Tolis, and Dr. Eli Gelfand -
have offered standard of care opinions regarding Dr. Kunal Chaudhry’s care in this case!
Permitting Plaintiffs’ expert physicians to offer testimony regarding the standard of care would
result in cumulative, duplicative and prejudicial testimony.
! Because Dr. Tolis and Dr. Gelfand are of a different sub-specialty than Dr. Chaudhry, they are precluded entirely
from offering standard of care opinions regarding Dr. Chaudhry’s care. This is addressed in a separate motion in
limine.
Electronically Filed Martin 03/24/2020 12:04 PM
GREER V MMMC, et. al.
2019-CA-00015
Expert testimony, even if relevant, is inadmissible if its probative value is substantially
outweighed by the danger of “unfair prejudice” and “needless presentation of cumulative
evidence.” § 90.403, Fla. Stat. See, e.g., DeLibero v. O Clubs, Inc., 956 So. 2d 1286, 1288 (Fla.
4th DCA 2007) (affirming exclusion of cumulative expert testimony from second cardiologist);
Nicholson v. Hospital Corp. of America, 725 So. 2d 1264 (Fla. 4th DCA 1999) (expert was
properly excluded as his proffered testimony was cumulative of two other experts who essential
testified to the same opinion); Gavin v. Promo Brands USA, Inc., 578 So. 2d 518, 519 (Fla. 4th
DCA 1991) (affirming exclusion of cumulative expert witness testimony concerning blood test
results); Smith v. Coastal Emergency Sves., Inc., 538 So, 2d 946, 948 (Fla. 4th DCA 1989)
(affirming trial court’s limitation precluding expert from testifying as to standard of care where
testimony “would simply have been cumulative....”); Stager v. Florida East Coast Ry. Co., 163
So. 2d 15, 17 (Fla. 3d DCA 1964) (affirming exclusion of testimony of treating physician that
would have been duplicative of testimony of previous two treating physicians).
It is well established that “[a] limitation on the number of experts per side is allowed as a
mechanism to prevent the 'needless presentation of cumulative evidence.’” Lion Plumbing
Supply, Inc. v. Suarez, 844 So. 2d 768, 770 (Fla. 3d DCA 2003); see also Woodson v. Go, 166
So. 3d 231 (Fla. 5th DCA 2015); Gonzalez v. Martinez, 897 So. 2d 525, 527 (Fla. 3d DCA 2005)
(“{A] trial judge has the discretion to limit the number of witnesses who[m] the parties may call
to testify at trial, and there is no abuse of discretion when the trial judge excludes additional
medical testimony that would have been cumulative in nature”). Additionally, this Court has
discretion to limit the presentation of evidence to “[a]void needless consumption of time.” §
90.612(1)(b), Fla. Stat.
The admission of cumulative expert testimony from experts who are not even in the same
GREER V MMMC, et. al.
2019-CA-00015
sub-specialty, and on the same topic will unfairly prejudice Defendant because the testimony will
improperly bolster Plaintiffs’ expert witnesses. The jury may mistakenly give less weight to the
opinions of Defendant’s standard of care expert simply because Plaintiffs have presented
multiple expert witnesses on the issues of standard of care. Furthermore, the presentation of this
duplicative testimony will unnecessarily prolong the trial and waste judicial resources.
Injecting cumulative testimony by eliciting testimony from multiple specialists about the
standard of care as it relates to the procedure in question will mislead and confuse the jury and is
extremely prejudicial to Defendants. See Nicholson v. Hospital Corp. of America, 725 So. 2d
1264 (Fla. 4th DCA 1999) (expert was properly excluded as his proffered testimony was
cumulative of two other experts who essentially testified to the same opinion.).
Allowing Plaintiffs’ expert physicians to testify regarding the standard of care would
result in cumulative and duplicative testimony. As such, the Court should preclude Plaintiffs’
expert physicians from offering standard of care opinions as it relates to Dr. Kunal Chaudhry’s
care and treatment of Plaintiff Frederic Greer, III, and for any further relief as the Court deems
just.
WHEREFORE, Defendant respectfully requests that Plaintiffs’ retained experts,
including but not limited to Dr. Selwyn, Dr. Tolis, and Dr. Gelfand, be prohibited from offering
cumulative standard of care testimony against Dr. Chaudhry at the time of trial.
GREER V MMMC , et. al.
2019-CA-00015
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this gf ¢, 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:
THOMAS G. AUBIN, ESQUIRE
FBN: 008060
taubin@stearnsweaver.com
MATTHEW S. PODOLNICK, ESQUIRE
FBN; 112126
mpodolnick@stearnsweaver.com
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
pleadings@somerasilva.com eservice@puyalaw.com
litigation@somerasilva.com Attorneys for Defendants Kunal Chaudhry,
Attorneys for Plaintiffs M.D. and Cardiology Associates of Stuart,
PA,
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 ajr@FLAppellateLaw.com
Attorneys for Defendants Kunal Chaudhry, fa@FLA\ ellateLaw.com
M.D. and Cardiology Associates of Stuart, | Appellate attorneys for Plaintiffs
P.A,
#8268784 v1
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Filing # 105345399 E-Filed 03/24/2020 12:04:27 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 PRECLUDE CUMULATIVE EXPERT TESTIMONY 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 cumulative expert testimony by Plaintiffs’ retained expert witnesses, Dr. Andrew Selwyn, Dr. George Tolis, and Dr. Eli Gelfand. In support of its motion, Defendant states as follows. Plaintiffs’ retained experts - Dr. Andrew Selwyn, Dr. George Tolis, and Dr. Eli Gelfand - have offered standard of care opinions regarding Dr. Kunal Chaudhry’s care in this case! Permitting Plaintiffs’ expert physicians to offer testimony regarding the standard of care would result in cumulative, duplicative and prejudicial testimony. ! Because Dr. Tolis and Dr. Gelfand are of a different sub-specialty than Dr. Chaudhry, they are precluded entirely from offering standard of care opinions regarding Dr. Chaudhry’s care. This is addressed in a separate motion in limine. Electronically Filed Martin 03/24/2020 12:04 PM GREER V MMMC, et. al. 2019-CA-00015 Expert testimony, even if relevant, is inadmissible if its probative value is substantially outweighed by the danger of “unfair prejudice” and “needless presentation of cumulative evidence.” § 90.403, Fla. Stat. See, e.g., DeLibero v. O Clubs, Inc., 956 So. 2d 1286, 1288 (Fla. 4th DCA 2007) (affirming exclusion of cumulative expert testimony from second cardiologist); Nicholson v. Hospital Corp. of America, 725 So. 2d 1264 (Fla. 4th DCA 1999) (expert was properly excluded as his proffered testimony was cumulative of two other experts who essential testified to the same opinion); Gavin v. Promo Brands USA, Inc., 578 So. 2d 518, 519 (Fla. 4th DCA 1991) (affirming exclusion of cumulative expert witness testimony concerning blood test results); Smith v. Coastal Emergency Sves., Inc., 538 So, 2d 946, 948 (Fla. 4th DCA 1989) (affirming trial court’s limitation precluding expert from testifying as to standard of care where testimony “would simply have been cumulative....”); Stager v. Florida East Coast Ry. Co., 163 So. 2d 15, 17 (Fla. 3d DCA 1964) (affirming exclusion of testimony of treating physician that would have been duplicative of testimony of previous two treating physicians). It is well established that “[a] limitation on the number of experts per side is allowed as a mechanism to prevent the 'needless presentation of cumulative evidence.’” Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 770 (Fla. 3d DCA 2003); see also Woodson v. Go, 166 So. 3d 231 (Fla. 5th DCA 2015); Gonzalez v. Martinez, 897 So. 2d 525, 527 (Fla. 3d DCA 2005) (“{A] trial judge has the discretion to limit the number of witnesses who[m] the parties may call to testify at trial, and there is no abuse of discretion when the trial judge excludes additional medical testimony that would have been cumulative in nature”). Additionally, this Court has discretion to limit the presentation of evidence to “[a]void needless consumption of time.” § 90.612(1)(b), Fla. Stat. The admission of cumulative expert testimony from experts who are not even in the same GREER V MMMC, et. al. 2019-CA-00015 sub-specialty, and on the same topic will unfairly prejudice Defendant because the testimony will improperly bolster Plaintiffs’ expert witnesses. The jury may mistakenly give less weight to the opinions of Defendant’s standard of care expert simply because Plaintiffs have presented multiple expert witnesses on the issues of standard of care. Furthermore, the presentation of this duplicative testimony will unnecessarily prolong the trial and waste judicial resources. Injecting cumulative testimony by eliciting testimony from multiple specialists about the standard of care as it relates to the procedure in question will mislead and confuse the jury and is extremely prejudicial to Defendants. See Nicholson v. Hospital Corp. of America, 725 So. 2d 1264 (Fla. 4th DCA 1999) (expert was properly excluded as his proffered testimony was cumulative of two other experts who essentially testified to the same opinion.). Allowing Plaintiffs’ expert physicians to testify regarding the standard of care would result in cumulative and duplicative testimony. As such, the Court should preclude Plaintiffs’ expert physicians from offering standard of care opinions as it relates to Dr. Kunal Chaudhry’s care and treatment of Plaintiff Frederic Greer, III, and for any further relief as the Court deems just. WHEREFORE, Defendant respectfully requests that Plaintiffs’ retained experts, including but not limited to Dr. Selwyn, Dr. Tolis, and Dr. Gelfand, be prohibited from offering cumulative standard of care testimony against Dr. Chaudhry at the time of trial. GREER V MMMC , et. al. 2019-CA-00015 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this gf ¢, 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: THOMAS G. AUBIN, ESQUIRE FBN: 008060 taubin@stearnsweaver.com MATTHEW S. PODOLNICK, ESQUIRE FBN; 112126 mpodolnick@stearnsweaver.com 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 pleadings@somerasilva.com eservice@puyalaw.com litigation@somerasilva.com Attorneys for Defendants Kunal Chaudhry, Attorneys for Plaintiffs M.D. and Cardiology Associates of Stuart, PA, 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 ajr@FLAppellateLaw.com Attorneys for Defendants Kunal Chaudhry, fa@FLA\ ellateLaw.com M.D. and Cardiology Associates of Stuart, | Appellate attorneys for Plaintiffs P.A, #8268784 v1