Preview
Filing # 190093306 E-Filed 01/19/2024 10:33:40 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA
ASBEL ALEXANDER LLERENA, CASE NO.: 2020 CA 002872 AN
Plaintiff,
v.
ADRIAN RODRIGUEZ CHAVEZ AND
GRANNY'S GARDEN II, INC.,
Defendants.
_______________________________/
DEFENDANTS’ MOTION IN LIMINE TO PREVENT TREATING
PHYSICIANS FROM TESTIFYING AS EXPERT WITNESSES
COMES NOW Defendants, Adrian Rodriguez Chavez And Granny's Garden Ii, Inc.
by and through undersigned counsel, and pursuant to the Florida Rule of Civil Procedure
hereby files this Motion in Limine to prevent Treating Physicians from Testifying as Expert
Witnesses, and as grounds state as follows:
1. Plaintiff has filed a lawsuit seeking recovery of damages for an injury that
Plaintiff relates to an automobile accident on December 3, 2019.
2. Plaintiff’s Amended Disclosure of Expert Witnesses identifies numerous
Treating Physicians.” See Exhibit “A”.
3. The treating physicians are not proper experts and should be excluded from
testifying as such under Daubert.
MEMORANDUM OF LAW
Defendant’s Motion in Limine or, in the alternative, Daubert Motion seeks to
exclude improper expert opinions from non-expert treating physicians—namely on the
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020 CA 002872 AN
issues of causation, severity, and permanency. The Florida Supreme Court recently
clarified the distinction between a treating physician and an expert witness for purposes
of providing testimony at trial. E.g. Gutierrez v. Vargas, 239 So. 3d 615 (Fla. 2018). In
Vargas, the court explained “[w]hile an expert witness assists the jury to understand the
facts, a treating physician testifies as a fact witness ‘concerning his or her own medical
performance on a particular occasion and is not opining about the medical performance
of another.’” Id. at 622 (citation omitted).
As it relates to expert witnesses, Section 90.702, Fla. Stat., provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact in understanding the evidence or in
determining a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify
about it in the form of an opinion or otherwise, if the testimony
is based upon sufficient facts or data, the testimony is the
product of reliable principles and methods, and the witness
has applied the principles and methods reliably to the facts of
the case.
The Florida Supreme Court has noted that “[t]estimony given by treating
physicians blurs the boundary between fact testimony and expert testimony because
treating physicians and expert medical witnesses both possesses scientific, technical, or
otherwise specialized knowledge which informs their testimony.” Gutierrez, 239 So. 3d at
622 (citing § 90.702, Fla. Stat.).
Regarding opinions, “[t]reating physicians are limited to their medical opinions as
they existed at the time they were treating the plaintiff[.]” Id. (citation omitted). Although
treating physicians may have specialized knowledge like an expert, “treating physicians
form medical opinions in the course of rendering treatment and may therefore testify to
the fact that they formed those opinions, and explain why they did so, provided such
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testimony is otherwise admissible.” Id. at 622-623. However, “[a] witness’s ability to testify
as a treating physician is predicated on the witness’s having provided the plaintiff with the
medical treatment which is the subject of the witness’s testimony.” Id. at 623.
Although the Vargas court acknowledged the permissibility of opinions provided by
treating physicians, the court also recognized “[n]ot all medical opinions formed by a
treating physician are automatically admissible, however[,] [as] [i]t is entirely possible that
even a treating physician’s testimony could cross the line into expert testimony.” Id. at 624
(internal quotations and citation omitted) (emphasis added). The court set forth the
following test:
Again, the determination turns on the role played by the
witness: if the treating physician gives a medical opinion
formed during the course and scope of treatment in fulfillment
of their obligation as a physician, then the physician is a fact
witness, albeit a highly qualified one. If, however, the treating
physician gives an opinion formed based on later review of
medical records for the purpose of assisting a jury to evaluate
the facts in controversy, the physician acts as an expert
witness, and should be considered as such.
Id. (citation omitted). The treating physicians cannot offer an opinion as to causation. The
treating physician does not have personal knowledge of the subject incident, which they
will likely opine to as the cause of Plaintiff’s subsequent injuries. Nor does an opinion as
to causation constitute a fact of their treatment of Plaintiff to which they can testify to as
treating physicians. Id. at 622. Specifically, the treating physicians did not need to develop
a causation opinion to provide treatment to Plaintiff.
The court distinguished the two types of witnesses by noting “[w]hile an expert
witness assists the jury to understand facts, a treating physician testifies as a fact witness
‘concerning his or own medical performance on a particular occasion and is not opining
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about the medical performance of another.’” Gutierrez, 239 So. 3d at 622 (citing Fittipaldi
USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005). The expert’s
testimony “involves testifying as to the treating physician’s specialized medical knowledge
as applied to other facts of the case, namely the plaintiff’s symptoms.” Id. at 622. On the
other hand, a treating physician is a fact witness and testifies to past facts based on
personal knowledge. “The treating physician’s perception of the plaintiff’s symptoms,
their diagnostic opinion, and their recommendation of a particular treatment are all facts
in issue.” Id. Thus, the main distinction the court draws between the two types of
witnesses is that:
[a]n expert witness testifies with the benefit of hindsight,
whereas a treating physician does not, [and] . . . . [t]reating
physicians are limited to their medical opinions as they existed
at the time they were treating the [patient], while an expert
may help the trier of fact decide the case.
Id.
Although the Vargas decision is new Florida law, federal courts have previously
recognized and applied the same distinctions between treating physicians and expert
witnesses. See, e.g. Bach-Tuyet Chau v. NCL (Bah.) Ltd., 2017 U.S. Dist. LEXIS 68330
(S.D. Fla. May 3, 2017); Schneider v. Hertz Corp., 2007 U.S. Dist. LEXIS 33294 (M.D.
Fla. May 7, 2007); United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005). Each of
these cases recognized that although the treating physician could testify as a lay witness
regarding the treatment provided and the diagnosis, the physician could not provide a
causation opinion because the opinion was not necessary to provide treatment. See
Bach-Tuyet Chau, 2017 U.S. Dist. LEXIS 68330, at *20-22 (orthopedic surgeon needed
to diagnose a fracture, but did not need to know the plaintiff’s prior fall caused the
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fracture); Schneider, 2007 U.S. Dist. LEXIS 33294, at *3 (“testimony regarding causation
will not be permitted ‘unless the determination of causation was necessary for treatment’
and the doctor's opinion is helpful to a clear understanding of his/her testimony.”) (citation
omitted); Henderson, 409 F.3d at 1300 (treating physician’s “opinion regarding the cause
of [the plaintiff]’s injuries was not helpful to a clear understanding of her decision making
process, nor did it pertain to [the plaintiff]'s treatment.”).
If an expert is qualified, the expert must have a sufficient factual predicate
underlying those opinions. This issue has been addressed in Trinidad v. Moore, where
the court noted that “[t]he Eleventh Circuit has explained that the testimony of treating
physicians presents special evidentiary problems that require great care and
circumspection by the trial court.” Civil Action No. 2:15cv323-WHA, 2016 U.S. Dist.
LEXIS 130258, at *7 (M.D. Ala. Sep. 23, 2016) (quoting Williams v. Mast Biosurgery USA,
Inc., 644 F.3d 1312 (11th Cir. 2011)). The Court further noted that the Williams Court
held: “a treating physician is not considered an expert witness if he or she testifies about
observations based on personal knowledge, including the treatment of the party, but when
a "treating physician's testimony is based on a hypothesis, not the experience of treating
the patient, it crosses the line from lay to expert testimony.” Trinidad at *7.
“Specifically with regard to causation testimony by treating physicians, courts
addressing the issue after 2010 have concluded that where a plaintiff offers a treating
physician's testimony as to causation, the offering party is required to comply with Rule
26(a)(2)(C)).” Id. at *8. Florida courts have applied similar reasoning in construing the
hearsay exception, provided in § 90.803(4), Fla. Stat., for statements made for purposes
of medical diagnosis or treatment. Specifically, “statements which relate to cause of the
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fall are not statements made for the purpose of medical diagnosis or treatment and are,
therefore, not admissible under section 90.803(4).” Andreaus v. Impact Pest Mgmt., 157
So. 3d 442, 445 (Fla. 2d DCA 2015).
Further, in Daubert, the Supreme Court explained that a trial court has a
responsibility to act as a gatekeeper, “ensuring that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 589; see
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (clarifying that the trial court's
gatekeeping function extends to not only “scientific” experts, but also those with
“technical” or “other specialized” knowledge); see also Perez, 138 So. 3d at 499. The
purpose of the court’s gatekeeper role “is to make certain that an expert, whether basing
testimony on professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the relevant
field.” Kumho Tire, 526 U.S. at 152. This role is important because an expert’s opinion
“can be both powerful and quite misleading because of the difficulty in evaluating it.”
Daubert, 509 U.S. at 595.
The determination of whether to admit expert testimony “entails a preliminary
assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be applied
to the facts in issue.” Daubert, 509 U.S. at 592-93. Daubert identified several factors that
may bear on the inquiry of whether a particular expert’s testimony should be admitted:
whether a theory or technique can or has been tested, whether a theory or technique has
been subject to peer review, the known or potential error rate of a technique, and the
degree to which a theory or technique has been accepted within the relevant scientific
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community. Id. at 593-94. This list, however, is “flexible,” and “neither necessarily nor
exclusively applies to all experts or in every case.” Kumho Tire, 526 U.S. at 141. Indeed,
courts have identified other factors that might be relevant to whether particular expert
testimony should be admitted. These factors include whether an expert proposes to testify
about matters growing directly and naturally out of research he has conducted
independent of the litigation as opposed to developing opinions expressly for the
purposes of testifying, and whether the expert has adequately accounted for obvious
alternative explanations causing a plaintiff’s injury. See Rule 702, Fed. R. Evid., Advisory
Committee’s Notes to 2000 Amendments (identifying, with care citations, other factors
that courts have utilized).
The burden of demonstrating the admissibility of an expert’s testimony is on the
party offering the expert, and admissibility must be shown by a preponderance of the
evidence. Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264, 1268 (Fla.
2003); see also Kilpatrick v. Breg, Inc., 613 F. 3d 1329, 1335 (11th Cir. 2010); Allison v.
McGhan Med. Corp., 184 F. 3d 1300, 1306 (11th Cir. 1999).
Like any other expert opinion, causation opinions by an expert must be the product
of a reliable method or process. In an opinion after remand from the Supreme Court, the
Ninth Circuit in Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F. 3d 1311 (1995),
rejected proffered testimony from a medical expert who was unable to articulate what
recognized methodology he used in arriving at a causation opinion. The Third Circuit
upheld exclusion of causation testimony where the district court found that the witness
was really providing “only a hypothesis which he had yet to attempt to verify or disprove
by subjecting it to the rigors of scientific testing.” In re Paoli R.R. Yard PCB Litigation, 35
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F. 3d 717, 764 (1994). Similarly, the Seventh Circuit affirmed rejection of proposed
causation opinions where the expert witnesses could not distinguish their opinions from
mere subjective belief. Porter v. Whitehall Laboratories, Inc., 9 F. 3d 607, 615 (1993)
(affirming exclusion of expert).
In this case, the potential causation opinions from Plaintiff’s treating physicians, as
a whole, regarding Plaintiff’s medical conditions and causation of his injuries, would rely
solely on Plaintiff’s subjective statements regarding what occurred on the date of the
incident and the medical history (or lack thereof) relayed to the physicians. Plaintiff’s
physicians rely on speculation, conjecture, and facts not established on the record to
prepare their causation opinions. For example, the physicians determined the causation
of the injuries based on Plaintiff’s subjective narrative as to the severity of the impact of
the crash and the motions of Plaintiff’s body in the vehicle at the time of the crash. None
of this evidence was established through a biomechanical expert. It is wholly improper for
any treating physician to rely on the unproven word of Plaintiff.
Furthermore, there is no indication that any of the physicians attempted to
eliminate any other possible causes of Plaintiff’s conditions. It is reasonable to conclude
that the doctors wanted to identify their conditions for treatment purposes rather than to
determine their exact cause. See generally, Turner v. Iowa Fire Equipment, Co., 229 F.3d
1202, 1205 (8th Cir. 2000). None of Plaintiff’s medical records reveal information to
demonstrate any of the doctors made any “attempt to consider all the possible causes, or
to exclude each potential cause until only one remained, or to consider which of two or
more non-excludable causes was the more likely to have caused the condition.” Id. at
1208.
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CASE NO.: 2020 CA 002872 AN
There is nothing to suggest the treating physicians needed to develop a causation
opinion to treat Plaintiff presently. Nor are there any records indicating they previously
developed such an opinion. As treating physicians, they cannot provide an opinion
developed solely to help the jury understand the facts at issue. Vargas, 239 So. 3d. at
624. Only expert witnesses can provide such opinions. See id.; cf. BachTuyet Chau, 2017
U.S. Dist. LEXIS 68330, at *20-22; Schneider, 2007 U.S. Dist. LEXIS 33294, at *3;
Henderson, 409 F.3d at 1300.
Because Plaintiff’s physicians failed to apply standard techniques of differential
diagnosis by eliminating other possible causes, any opinions regarding injury causation
should be excluded. Id. at 1205-06, 1208 (holding that the trial court did not abuse its
discretion in excluding treating physicians’ causation opinion, based exclusively upon the
medical history obtained from the plaintiff, which indicated no prior respiratory problems,
and the temporal relationship between the incident and the onset of symptoms); see also,
e.g., State Div. of Risk Mgmt. v. Martin, 690 So. 2d 651 (Fla. 1st DCA 1997) (holding that
a doctor's testimony did not constitute competent substantial evidence as to causation
because it was based on speculation, made without knowledge of claimant's relevant
medical history, and based "virtually entirely" upon claimant's false report of causal
connection between accident and subsequent surgery); In re Paoli R.R. Yard PCB
Litigation, 35 F.3d 717 (3d Cir. 1994) (holding that for purposes of determining
admissibility of expert medical testimony, part of differential diagnosis is using standard
techniques to rule out alternative causes and, thus, where defendant points to a plausible
alternative cause and the doctor offers no explanation for why he or she has concluded
that was not the sole cause, doctor's methodology is unreliable); cf. Berry v. CSX Transp.,
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Inc., 709 So. 2d 552, 571 (Fla. 1st DCA 1998) (holding that an expert witness' testimony
regarding causation of a railroad employee's malady was admissible in toxic tort litigation,
as the expert employed a scientifically acceptable differential diagnosis method in attempt
to eliminate other possible causes of symptoms and his opinion was not only based upon
the employee's personal history, medical records, physical examinations and medical
tests, but was also based upon sufficient epidemiological data, facts, and personal
observations); David v. Nat'l R.R. Passenger Corp., 801 So. 2d 223, 227 (Fla. 2d DCA
2001) (holding that if upon remand, physicians could demonstrate that they relied upon
the differential diagnosis method to arrive at their theories of causation, the trial court
should permit the physicians to testify that repetitive hand motion may have led to carpal
tunnel syndrome, noting that the physicians had performed a physical exam on the
patient; obtained a medical history from the patient; performed tests on the patient;
assessed the existence of occupational and non-occupational risk factors; and excluded
non-occupational causes before testifying that the plaintiff’s injuries were related to his
employment).
To the extent Plaintiff’s treating physicians base any causation opinion exclusively
on the history provided by Plaintiff, they do not have an adequate factual foundation for
their opinions. “To be admissible, an expert's opinion must be based on valid underlying
data which has a proper factual basis.” Carnival Corp. v. Stowers, 834 So. 2d 386, 387
(Fla. 3d DCA 2003). Such testimony must be excluded.
Nor can the treating physicians provide an opinion as to the permanent nature or
need for future medical care, if any, of Plaintiff’s injuries, because there is no indication
from Plaintiff’s treatment records that they ever formed such an opinion during their
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treatment of Plaintiff. There is also no indication that a permanency opinion is an opinion
that a treating physician usually forms when treating a patient. Florida law provides that
“[a] plaintiff can establish a prima facie case of permanency by presenting expert
testimony of permanency.” Wald v. Grainger, 64 So. 3d 1201, 1204-05 (Fla. 2011). In the
absence of any indication of a prior permanency opinion or that such an opinion is usually
formed in the course of treating a patient, it is clear that any opinions regarding
permanency will be provided solely for purposes of Plaintiff’s claim against Defendants.
However, treating physicians cannot do this. See Vargas, 239 So. 3d. at 624 (“If a treating
physician testified to a medical opinion formed for the purpose of litigation rather than
treatment, then the mere fact that the physician once treated the plaintiff would not
prevent that doctor from being considered an expert witness.”)
Overall, treating physicians cannot provide testimony beyond the facts of their
treatment of Plaintiff. Therefore, this Court should prohibit the treating physicians from
providing any opinion not made in the course of treating Plaintiff, including opinions
concerning the causation of any injuries and the potential permanency of any injuries.
Without such prohibition, Plaintiff will elicit expert testimony from a fact witness, to the
severe prejudice of Defendant.
REQUESTED RELIEF
Defendant respectfully requests this Court grant Defendant’s Motion in
Limine or, in the alternative, Daubert Challenge, limiting causation, severity, and
permanency testimony from Plaintiff’s non-expert, treating physician and hybrid-witness
who has failed to submit responses to expert discovery, and all other relief this Court
deems just and proper.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th day of January, 2024, a true and correct
copy of the foregoing was filed with the Clerk of Osceola County by using the Florida
Courts e-Filing Portal, which will send an automatic e-mail message to the following
parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan &
Morgan, P.A., malzate@forthepeople.com; imerlos@forthepeople.com;
anajera@forthepeople.com, 198 Broadway Avenue, Kissimmee, FL 34741, (407) 452-
1597/(407) 452-1623 (F), Attorney for Plaintiff, Asbel Alexander Llerena.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant ADRIAN RODRIGUEZ
CHAVEZ AND GRANNY'S GARDEN II, INC.
Tower Place, Suite 400
1900 Summit Tower Boulevard
Orlando, Florida 32810
Telephone (321) 972-0011
Facsimile (321) 972-0099
Primary e-mail: scott.shelton@csklegal.com
Secondary e-mail: gary.lewis@csklegal.com
Alternate e-mail:
sandra.mcintosh@csklegal.com
By: s/ Gary L. Lewis
SCOTT A. SHELTON
Florida Bar No.: 36486
GARY L. LEWIS
Florida Bar No.: 158887
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EXHIBIT “A”
Filing # 187800598 E-Filed 12/11/2023 05:06:34 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR OSCEOLA COUNTY, FLORIDA
ASBEL ALEXANDER LLERENA, CASE NO.: 2020-CA-002872-AN
Plaintiff,
vs.
ADRIAN RODRIGUEZ CHAVEZ and
GRANNY’S GARDEN II, INC.,
Defendants. /
PLAINTIFF'S AMENDED DISCLOSURE OF EXPERT WITNESSES TO ADD
REBUTTAL EXPERT
COMES NOW, the Plaintiff, ASBEL ALEXANDER LLERENA, by and through the
undersigned counsel and files Plaintiff’s Amended Disclosure of Expert Witnesses to Add Rebuttal
Expert, and provides the following disclosure of expert witnesses anticipated to testify at the trial of
this action:
1. Any and all medical providers/personnel at:
Joint Maneuvers Chiropractic
Brett E. Petty, D.C.
4797 Old Canoe Creek Road
St. Cloud, FL 34769
Speciality/expertise: Chiropractic
Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and
permanency of injuries, including future treatment needed.
This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding
its care and treatment of the plaintiff, and offer opinions on causation and/or damages,
including, but not limited to, diagnoses, prognosis, impairment, permanency, disability,
aggravation of any pre-existing conditions, costs, reasonableness, necessity, and
relationship of past and future medical care, as well as any other relevant matters
customarily testified to by treating physicians and other medical care providers within a
reasonable degree of medical probability.
For further explanation, please see medical records chronicling treatment of Plaintiff,
already in Defendant’s possession. However, Plaintiff does not intend to limit this treating
physician’s testimony to the verbatim language contained in the medical records.
None of these medical records were prepared in anticipation of litigation.
2. Any and all medical providers/personnel at:
Spine and Orthopedics Specialist
Aaron Smith, D.O.
Sandeep Pillarisetty, M.D.
814 North John Young Parkway
Kissimmee FL USA 34741
Speciality/expertise: Orthopedic Surgeon, Orthopedics, Neurosurgeon, Pain Management
Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and
permanency of injuries, including future treatment needed.
This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding
its care and treatment of the plaintiff, and offer opinions on causation and/or damages,
including, but not limited to, diagnoses, prognosis, impairment, permanency, disability,
aggravation of any pre-existing conditions, costs, reasonableness, necessity, and
relationship of past and future medical care, as well as any other relevant matters
customarily testified to by treating physicians and other medical care providers within a
reasonable degree of medical probability.
For further explanation, please see medical records chronicling treatment of Plaintiff,
already in Defendant’s possession. However, Plaintiff does not intend to limit this treating
physician’s testimony to the verbatim language contained in the medical records.
None of these medical records were prepared in anticipation of litigation.
3. Any and all medical providers/personnel at:
Integrity Medical Group
Thomas Cooper, M.D.
Rafael Romero, PA-C
Terel Newton, M.D.
Donald Behrmann, M.D.
Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and
permanency of injuries, including future treatment needed.
This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding
its care and treatment of the plaintiff, and offer opinions on causation and/or damages,
including, but not limited to, diagnoses, prognosis, impairment, permanency, disability,
aggravation of any pre-existing conditions, costs, reasonableness, necessity, and
relationship of past and future medical care, as well as any other relevant matters
customarily testified to by treating physicians and other medical care providers within a
reasonable degree of medical probability.
For further explanation, please see medical records chronicling treatment of Plaintiff,
already in Defendant’s possession. However, Plaintiff does not intend to limit this treating
physician’s testimony to the verbatim language contained in the medical records.
None of these medical records were prepared in anticipation of litigation.
4. Any and all medical providers/personnel at:
AKUMIN
Jose Pizzaro, M.D.
1503 W Oak St.
Kissimmee, FL 34744
Speciality/expertise: Radiology/Diagnostics
Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and
permanency of injuries, including future treatment needed.
This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding
its care and treatment of the plaintiff, and offer opinions on causation and/or damages,
including, but not limited to, diagnoses, prognosis, impairment, permanency, disability,
aggravation of any pre-existing conditions, costs, reasonableness, necessity, and
relationship of past and future medical care, as well as any other relevant matters
customarily testified to by treating physicians and other medical care providers within a
reasonable degree of medical probability.
For further explanation, please see medical records chronicling treatment of Plaintiff,
already in Defendant’s possession. However, Plaintiff does not intend to limit this treating
physician’s testimony to the verbatim language contained in the medical records.
None of these medical records were prepared in anticipation of litigation.
5. Timonthy Bundy, D.O., CLCP, ATC (Treating Physician/Retained Expert)
324 S. Hyde Park Avenue, Ste 275
Tampa, FL 33606
Specialty/expertise: Rehabilitation, Vocational Rehabilitation and Life Care Planning
Testifying Subject: Causation and permanency of injuries, including future treatment
needed as detailed in a Life Care Plan, review of past medical records and treatment
records.
Dates: January 9, 2024, January 16, 2024, January 18, 2024.
This physician is a treating physician and retained expert who is expected to testify on
behalf of the Plaintiff regarding his care and treatment of the Plaintiff, and offer opinions
on causation and/or damages, including, but not limited to, diagnoses, prognosis,
impairment, permanency, disability, aggravation of any pre-existing conditions, costs,
reasonableness, necessity, and relationship of past and future medical care, as well as any
other relevant matters customarily testified to by treating physicians and other medical care
providers within a reasonable degree of medical probability/certainty. This non-retained
expert has reviewed any and all medical records pertaining to the care and treatment
received by the Plaintiff.
For further explanation please see the medical records chronicling the treatment of
Plaintiff, already in Defendant’s possession. However, Plaintiff does not intend to limit this
treating physician’s testimony to the verbatim language contained in the medical records.
This physician has rendered reports of the medical treatment and/or radiological reads, and
Plaintiff defers to the reports and/or testimony as to a summary of the subject matter of the
testimony, as well as the substance of the facts and opinions this physician may have. None
of these medical records were prepared in anticipation of litigation.
In addition, this physician, based upon education, training and experience, based upon
treatment of the Plaintiff, based upon the history obtained, based upon the medical records
reviewed, and based upon the diagnostic studies reviewed, will testify that the trauma
sustained by Plaintiff in the subject motor vehicle crash caused injuries which are
permanent in nature. He will also offer opinions as to life care plan, rehabilitation and any
other relevant expert opinions within the course and scope of his expertise.
6. Any and all medical providers/personnel at:
BudDocs
Marino A. Chanlatte, M.D.
917 Rinehart Rd. #2061
Lake Mary, FL 32746
Speciality/expertise: Medical Marijuana
Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and
permanency of injuries, including future treatment needed.
This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding
its care and treatment of the plaintiff, and offer opinions on causation and/or damages,
including, but not limited to, diagnoses, prognosis, impairment, permanency, disability,
aggravation of any pre-existing conditions, costs, reasonableness, necessity, and
relationship of past and future medical care, as well as any other relevant matters
customarily testified to by treating physicians and other medical care providers within a
reasonable degree of medical probability.
For further explanation, please see medical records chronicling treatment of Plaintiff,
already in Defendant’s possession. However, Plaintiff does not intend to limit this treating
physician’s testimony to the verbatim language contained in the medical records.
None of these medical records were prepared in anticipation of litigation.
7. Michael Freeman Ph.D. (Retained Expert)
Forensic Research & Analysis
4500 Kruse Way, Plaza I, Suite 385
Lake Oswego, Oregon 97035
Will discuss: Dr. Freeman is a retained expert and rebuttal witness who is expected to
testify on behalf of the Plaintiff regarding injury causation, crash reconstruction, injury
biomechanics, injury risk, and any other relevant expert opinions within the course and
scope of his expertise.
Deposition dates have been requested and C.V. will be provided upon receipt.
8. Farhad Booeshaghi, Ph.D., P.E. (Retained Expert)
Global Engineering & Scientific Solutions
2777 Miccosukee Road, Suite 1
Tallahassee, FL 32308
Specialty/Expertise: Accident Reconstruction/Engineering/Human Factors/Biomechanics
Testifying Subject: Accident Reconstruction/Mechanism of Injury/Human Factors, as well
as authentication of mechanism of injury animation.
Deposition dates have been requested and C.V. will be provided upon receipt.
The said above-listed experts are expected to testify in their respective fields of expertise
as to their medical care, treatment and or services rendered to Plaintiff; including but not limiting
their testimony to the issues of the injuries suffered from the subject incident, reasonableness and
necessity of care and treatment in the past and into the future, cost for future care, diagnosis and
prognosis, as well as the issue of causation and permanency of the injury(ies). The curriculum
vitae of each above-listed retained expert witness has been requested and will be furnished, if not
already received and attached as composite exhibit hereto, to Defendant as soon as the same has
been made available to counsel for Plaintiff.
** Please contact Plaintiff’s counsel at (407) 563-3694 to coordinate scheduling of any of the
above noted providers/expert witnesses.
1. As both Plaintiff’s treatment for her incident-related injuries and discovery are ongoing,
Plaintiff reserves the right to identify, as expert witnesses, any additional health care
providers who render(ed) treatment to Plaintiff for accident-related injuries that become
known prior to the discovery cut-off date in this action.
2. Any expert witnesses discovered in formal discovery prior to the discovery cut-off date in
this action.
3. Any other applicable expert witness necessary to authenticate any item of evidence or exhibit
listed on the Plaintiff’s Exhibit List.
4. Any applicable records custodian for any record or document listed on the Plaintiff’s Exhibit
List.
5. Any witness listed by the Defendants to this cause in their Expert Witness Lists previously
filed or to be filed.
6. Any expert witness who rendered deposition testimony in the discovery of this cause of action.
7. Any expert witness necessary to rebut testimony provided by any witness disclosed by the
Defendant in its Expert Witness lists previously filed or yet to be filed.
8. Any and all expert witnesses listed or retained by the Defendants, whether formally listed,
withdrawn as expert witnesses and regardless of whether called at trial by the Defendants, or
later withdrawn by the Defendants.
9. Any and all compulsory medical examiners of the Defendants and/or any and all later or
additionally disclosed compulsory medical examiners, whether formally listed on
Defendants’ expert witness list and/or withdrawn as expert witnesses by the Defendants.
10. Any appropriate expert rebuttal witness necessitated by the proof of these issues.
11. Representatives of any alleged collateral source as raised by the Defendant. Such witnesses
may or may not be considered expert, but rather informational within their field of interest.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 11, 2023, I electronically filed the forgoing with
the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify that Pursuant
to Rule 2051(b)(1) I forwarded the foregoing this same day via Email to: Scott A. Shelton, Esq.
Gary L. Lewis, Esq., of Cole, Scott & Kissane, P.A., scott.shelton@csklegal.com;
gary.lewis@csklegal.com; sanra.mcintosh@csklegal.com.
/s/ Melissa Alzate
Melissa Alzate, Esquire
FBN 1013530
Morgan & Morgan Orlando P.A.
198 Broadway Avenue
Kissimmee, Florida 34741
Telephone: (407) 452-1597
Facsimile: (407) 452-1623
Primary Email: MAlzate@forthepeople.com
Secondary Email: MCoriano-Lopez@forthepeople.com
Tertiary Email: VPagan @forthepeople.com
Attorney for Plaintiff
Preview
Filing # 190093306 E-Filed 01/19/2024 10:33:40 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA ASBEL ALEXANDER LLERENA, CASE NO.: 2020 CA 002872 AN Plaintiff, v. ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC., Defendants. _______________________________/ DEFENDANTS’ MOTION IN LIMINE TO PREVENT TREATING PHYSICIANS FROM TESTIFYING AS EXPERT WITNESSES COMES NOW Defendants, Adrian Rodriguez Chavez And Granny's Garden Ii, Inc. by and through undersigned counsel, and pursuant to the Florida Rule of Civil Procedure hereby files this Motion in Limine to prevent Treating Physicians from Testifying as Expert Witnesses, and as grounds state as follows: 1. Plaintiff has filed a lawsuit seeking recovery of damages for an injury that Plaintiff relates to an automobile accident on December 3, 2019. 2. Plaintiff’s Amended Disclosure of Expert Witnesses identifies numerous Treating Physicians.” See Exhibit “A”. 3. The treating physicians are not proper experts and should be excluded from testifying as such under Daubert. MEMORANDUM OF LAW Defendant’s Motion in Limine or, in the alternative, Daubert Motion seeks to exclude improper expert opinions from non-expert treating physicians—namely on the COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN issues of causation, severity, and permanency. The Florida Supreme Court recently clarified the distinction between a treating physician and an expert witness for purposes of providing testimony at trial. E.g. Gutierrez v. Vargas, 239 So. 3d 615 (Fla. 2018). In Vargas, the court explained “[w]hile an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness ‘concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another.’” Id. at 622 (citation omitted). As it relates to expert witnesses, Section 90.702, Fla. Stat., provides: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. The Florida Supreme Court has noted that “[t]estimony given by treating physicians blurs the boundary between fact testimony and expert testimony because treating physicians and expert medical witnesses both possesses scientific, technical, or otherwise specialized knowledge which informs their testimony.” Gutierrez, 239 So. 3d at 622 (citing § 90.702, Fla. Stat.). Regarding opinions, “[t]reating physicians are limited to their medical opinions as they existed at the time they were treating the plaintiff[.]” Id. (citation omitted). Although treating physicians may have specialized knowledge like an expert, “treating physicians form medical opinions in the course of rendering treatment and may therefore testify to the fact that they formed those opinions, and explain why they did so, provided such 2 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN testimony is otherwise admissible.” Id. at 622-623. However, “[a] witness’s ability to testify as a treating physician is predicated on the witness’s having provided the plaintiff with the medical treatment which is the subject of the witness’s testimony.” Id. at 623. Although the Vargas court acknowledged the permissibility of opinions provided by treating physicians, the court also recognized “[n]ot all medical opinions formed by a treating physician are automatically admissible, however[,] [as] [i]t is entirely possible that even a treating physician’s testimony could cross the line into expert testimony.” Id. at 624 (internal quotations and citation omitted) (emphasis added). The court set forth the following test: Again, the determination turns on the role played by the witness: if the treating physician gives a medical opinion formed during the course and scope of treatment in fulfillment of their obligation as a physician, then the physician is a fact witness, albeit a highly qualified one. If, however, the treating physician gives an opinion formed based on later review of medical records for the purpose of assisting a jury to evaluate the facts in controversy, the physician acts as an expert witness, and should be considered as such. Id. (citation omitted). The treating physicians cannot offer an opinion as to causation. The treating physician does not have personal knowledge of the subject incident, which they will likely opine to as the cause of Plaintiff’s subsequent injuries. Nor does an opinion as to causation constitute a fact of their treatment of Plaintiff to which they can testify to as treating physicians. Id. at 622. Specifically, the treating physicians did not need to develop a causation opinion to provide treatment to Plaintiff. The court distinguished the two types of witnesses by noting “[w]hile an expert witness assists the jury to understand facts, a treating physician testifies as a fact witness ‘concerning his or own medical performance on a particular occasion and is not opining 3 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN about the medical performance of another.’” Gutierrez, 239 So. 3d at 622 (citing Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005). The expert’s testimony “involves testifying as to the treating physician’s specialized medical knowledge as applied to other facts of the case, namely the plaintiff’s symptoms.” Id. at 622. On the other hand, a treating physician is a fact witness and testifies to past facts based on personal knowledge. “The treating physician’s perception of the plaintiff’s symptoms, their diagnostic opinion, and their recommendation of a particular treatment are all facts in issue.” Id. Thus, the main distinction the court draws between the two types of witnesses is that: [a]n expert witness testifies with the benefit of hindsight, whereas a treating physician does not, [and] . . . . [t]reating physicians are limited to their medical opinions as they existed at the time they were treating the [patient], while an expert may help the trier of fact decide the case. Id. Although the Vargas decision is new Florida law, federal courts have previously recognized and applied the same distinctions between treating physicians and expert witnesses. See, e.g. Bach-Tuyet Chau v. NCL (Bah.) Ltd., 2017 U.S. Dist. LEXIS 68330 (S.D. Fla. May 3, 2017); Schneider v. Hertz Corp., 2007 U.S. Dist. LEXIS 33294 (M.D. Fla. May 7, 2007); United States v. Henderson, 409 F.3d 1293 (11th Cir. 2005). Each of these cases recognized that although the treating physician could testify as a lay witness regarding the treatment provided and the diagnosis, the physician could not provide a causation opinion because the opinion was not necessary to provide treatment. See Bach-Tuyet Chau, 2017 U.S. Dist. LEXIS 68330, at *20-22 (orthopedic surgeon needed to diagnose a fracture, but did not need to know the plaintiff’s prior fall caused the 4 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN fracture); Schneider, 2007 U.S. Dist. LEXIS 33294, at *3 (“testimony regarding causation will not be permitted ‘unless the determination of causation was necessary for treatment’ and the doctor's opinion is helpful to a clear understanding of his/her testimony.”) (citation omitted); Henderson, 409 F.3d at 1300 (treating physician’s “opinion regarding the cause of [the plaintiff]’s injuries was not helpful to a clear understanding of her decision making process, nor did it pertain to [the plaintiff]'s treatment.”). If an expert is qualified, the expert must have a sufficient factual predicate underlying those opinions. This issue has been addressed in Trinidad v. Moore, where the court noted that “[t]he Eleventh Circuit has explained that the testimony of treating physicians presents special evidentiary problems that require great care and circumspection by the trial court.” Civil Action No. 2:15cv323-WHA, 2016 U.S. Dist. LEXIS 130258, at *7 (M.D. Ala. Sep. 23, 2016) (quoting Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312 (11th Cir. 2011)). The Court further noted that the Williams Court held: “a treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party, but when a "treating physician's testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony.” Trinidad at *7. “Specifically with regard to causation testimony by treating physicians, courts addressing the issue after 2010 have concluded that where a plaintiff offers a treating physician's testimony as to causation, the offering party is required to comply with Rule 26(a)(2)(C)).” Id. at *8. Florida courts have applied similar reasoning in construing the hearsay exception, provided in § 90.803(4), Fla. Stat., for statements made for purposes of medical diagnosis or treatment. Specifically, “statements which relate to cause of the 5 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN fall are not statements made for the purpose of medical diagnosis or treatment and are, therefore, not admissible under section 90.803(4).” Andreaus v. Impact Pest Mgmt., 157 So. 3d 442, 445 (Fla. 2d DCA 2015). Further, in Daubert, the Supreme Court explained that a trial court has a responsibility to act as a gatekeeper, “ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 589; see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (clarifying that the trial court's gatekeeping function extends to not only “scientific” experts, but also those with “technical” or “other specialized” knowledge); see also Perez, 138 So. 3d at 499. The purpose of the court’s gatekeeper role “is to make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. This role is important because an expert’s opinion “can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 595. The determination of whether to admit expert testimony “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93. Daubert identified several factors that may bear on the inquiry of whether a particular expert’s testimony should be admitted: whether a theory or technique can or has been tested, whether a theory or technique has been subject to peer review, the known or potential error rate of a technique, and the degree to which a theory or technique has been accepted within the relevant scientific 6 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN community. Id. at 593-94. This list, however, is “flexible,” and “neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire, 526 U.S. at 141. Indeed, courts have identified other factors that might be relevant to whether particular expert testimony should be admitted. These factors include whether an expert proposes to testify about matters growing directly and naturally out of research he has conducted independent of the litigation as opposed to developing opinions expressly for the purposes of testifying, and whether the expert has adequately accounted for obvious alternative explanations causing a plaintiff’s injury. See Rule 702, Fed. R. Evid., Advisory Committee’s Notes to 2000 Amendments (identifying, with care citations, other factors that courts have utilized). The burden of demonstrating the admissibility of an expert’s testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence. Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264, 1268 (Fla. 2003); see also Kilpatrick v. Breg, Inc., 613 F. 3d 1329, 1335 (11th Cir. 2010); Allison v. McGhan Med. Corp., 184 F. 3d 1300, 1306 (11th Cir. 1999). Like any other expert opinion, causation opinions by an expert must be the product of a reliable method or process. In an opinion after remand from the Supreme Court, the Ninth Circuit in Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F. 3d 1311 (1995), rejected proffered testimony from a medical expert who was unable to articulate what recognized methodology he used in arriving at a causation opinion. The Third Circuit upheld exclusion of causation testimony where the district court found that the witness was really providing “only a hypothesis which he had yet to attempt to verify or disprove by subjecting it to the rigors of scientific testing.” In re Paoli R.R. Yard PCB Litigation, 35 7 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN F. 3d 717, 764 (1994). Similarly, the Seventh Circuit affirmed rejection of proposed causation opinions where the expert witnesses could not distinguish their opinions from mere subjective belief. Porter v. Whitehall Laboratories, Inc., 9 F. 3d 607, 615 (1993) (affirming exclusion of expert). In this case, the potential causation opinions from Plaintiff’s treating physicians, as a whole, regarding Plaintiff’s medical conditions and causation of his injuries, would rely solely on Plaintiff’s subjective statements regarding what occurred on the date of the incident and the medical history (or lack thereof) relayed to the physicians. Plaintiff’s physicians rely on speculation, conjecture, and facts not established on the record to prepare their causation opinions. For example, the physicians determined the causation of the injuries based on Plaintiff’s subjective narrative as to the severity of the impact of the crash and the motions of Plaintiff’s body in the vehicle at the time of the crash. None of this evidence was established through a biomechanical expert. It is wholly improper for any treating physician to rely on the unproven word of Plaintiff. Furthermore, there is no indication that any of the physicians attempted to eliminate any other possible causes of Plaintiff’s conditions. It is reasonable to conclude that the doctors wanted to identify their conditions for treatment purposes rather than to determine their exact cause. See generally, Turner v. Iowa Fire Equipment, Co., 229 F.3d 1202, 1205 (8th Cir. 2000). None of Plaintiff’s medical records reveal information to demonstrate any of the doctors made any “attempt to consider all the possible causes, or to exclude each potential cause until only one remained, or to consider which of two or more non-excludable causes was the more likely to have caused the condition.” Id. at 1208. 8 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN There is nothing to suggest the treating physicians needed to develop a causation opinion to treat Plaintiff presently. Nor are there any records indicating they previously developed such an opinion. As treating physicians, they cannot provide an opinion developed solely to help the jury understand the facts at issue. Vargas, 239 So. 3d. at 624. Only expert witnesses can provide such opinions. See id.; cf. BachTuyet Chau, 2017 U.S. Dist. LEXIS 68330, at *20-22; Schneider, 2007 U.S. Dist. LEXIS 33294, at *3; Henderson, 409 F.3d at 1300. Because Plaintiff’s physicians failed to apply standard techniques of differential diagnosis by eliminating other possible causes, any opinions regarding injury causation should be excluded. Id. at 1205-06, 1208 (holding that the trial court did not abuse its discretion in excluding treating physicians’ causation opinion, based exclusively upon the medical history obtained from the plaintiff, which indicated no prior respiratory problems, and the temporal relationship between the incident and the onset of symptoms); see also, e.g., State Div. of Risk Mgmt. v. Martin, 690 So. 2d 651 (Fla. 1st DCA 1997) (holding that a doctor's testimony did not constitute competent substantial evidence as to causation because it was based on speculation, made without knowledge of claimant's relevant medical history, and based "virtually entirely" upon claimant's false report of causal connection between accident and subsequent surgery); In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994) (holding that for purposes of determining admissibility of expert medical testimony, part of differential diagnosis is using standard techniques to rule out alternative causes and, thus, where defendant points to a plausible alternative cause and the doctor offers no explanation for why he or she has concluded that was not the sole cause, doctor's methodology is unreliable); cf. Berry v. CSX Transp., 9 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN Inc., 709 So. 2d 552, 571 (Fla. 1st DCA 1998) (holding that an expert witness' testimony regarding causation of a railroad employee's malady was admissible in toxic tort litigation, as the expert employed a scientifically acceptable differential diagnosis method in attempt to eliminate other possible causes of symptoms and his opinion was not only based upon the employee's personal history, medical records, physical examinations and medical tests, but was also based upon sufficient epidemiological data, facts, and personal observations); David v. Nat'l R.R. Passenger Corp., 801 So. 2d 223, 227 (Fla. 2d DCA 2001) (holding that if upon remand, physicians could demonstrate that they relied upon the differential diagnosis method to arrive at their theories of causation, the trial court should permit the physicians to testify that repetitive hand motion may have led to carpal tunnel syndrome, noting that the physicians had performed a physical exam on the patient; obtained a medical history from the patient; performed tests on the patient; assessed the existence of occupational and non-occupational risk factors; and excluded non-occupational causes before testifying that the plaintiff’s injuries were related to his employment). To the extent Plaintiff’s treating physicians base any causation opinion exclusively on the history provided by Plaintiff, they do not have an adequate factual foundation for their opinions. “To be admissible, an expert's opinion must be based on valid underlying data which has a proper factual basis.” Carnival Corp. v. Stowers, 834 So. 2d 386, 387 (Fla. 3d DCA 2003). Such testimony must be excluded. Nor can the treating physicians provide an opinion as to the permanent nature or need for future medical care, if any, of Plaintiff’s injuries, because there is no indication from Plaintiff’s treatment records that they ever formed such an opinion during their 10 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN treatment of Plaintiff. There is also no indication that a permanency opinion is an opinion that a treating physician usually forms when treating a patient. Florida law provides that “[a] plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency.” Wald v. Grainger, 64 So. 3d 1201, 1204-05 (Fla. 2011). In the absence of any indication of a prior permanency opinion or that such an opinion is usually formed in the course of treating a patient, it is clear that any opinions regarding permanency will be provided solely for purposes of Plaintiff’s claim against Defendants. However, treating physicians cannot do this. See Vargas, 239 So. 3d. at 624 (“If a treating physician testified to a medical opinion formed for the purpose of litigation rather than treatment, then the mere fact that the physician once treated the plaintiff would not prevent that doctor from being considered an expert witness.”) Overall, treating physicians cannot provide testimony beyond the facts of their treatment of Plaintiff. Therefore, this Court should prohibit the treating physicians from providing any opinion not made in the course of treating Plaintiff, including opinions concerning the causation of any injuries and the potential permanency of any injuries. Without such prohibition, Plaintiff will elicit expert testimony from a fact witness, to the severe prejudice of Defendant. REQUESTED RELIEF Defendant respectfully requests this Court grant Defendant’s Motion in Limine or, in the alternative, Daubert Challenge, limiting causation, severity, and permanency testimony from Plaintiff’s non-expert, treating physician and hybrid-witness who has failed to submit responses to expert discovery, and all other relief this Court deems just and proper. 11 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020 CA 002872 AN CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 19th day of January, 2024, a true and correct copy of the foregoing was filed with the Clerk of Osceola County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan & Morgan, P.A., malzate@forthepeople.com; imerlos@forthepeople.com; anajera@forthepeople.com, 198 Broadway Avenue, Kissimmee, FL 34741, (407) 452- 1597/(407) 452-1623 (F), Attorney for Plaintiff, Asbel Alexander Llerena. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC. Tower Place, Suite 400 1900 Summit Tower Boulevard Orlando, Florida 32810 Telephone (321) 972-0011 Facsimile (321) 972-0099 Primary e-mail: scott.shelton@csklegal.com Secondary e-mail: gary.lewis@csklegal.com Alternate e-mail: sandra.mcintosh@csklegal.com By: s/ Gary L. Lewis SCOTT A. SHELTON Florida Bar No.: 36486 GARY L. LEWIS Florida Bar No.: 158887 12 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX EXHIBIT “A” Filing # 187800598 E-Filed 12/11/2023 05:06:34 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA ASBEL ALEXANDER LLERENA, CASE NO.: 2020-CA-002872-AN Plaintiff, vs. ADRIAN RODRIGUEZ CHAVEZ and GRANNY’S GARDEN II, INC., Defendants. / PLAINTIFF'S AMENDED DISCLOSURE OF EXPERT WITNESSES TO ADD REBUTTAL EXPERT COMES NOW, the Plaintiff, ASBEL ALEXANDER LLERENA, by and through the undersigned counsel and files Plaintiff’s Amended Disclosure of Expert Witnesses to Add Rebuttal Expert, and provides the following disclosure of expert witnesses anticipated to testify at the trial of this action: 1. Any and all medical providers/personnel at: Joint Maneuvers Chiropractic Brett E. Petty, D.C. 4797 Old Canoe Creek Road St. Cloud, FL 34769 Speciality/expertise: Chiropractic Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and permanency of injuries, including future treatment needed. This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding its care and treatment of the plaintiff, and offer opinions on causation and/or damages, including, but not limited to, diagnoses, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care, as well as any other relevant matters customarily testified to by treating physicians and other medical care providers within a reasonable degree of medical probability. For further explanation, please see medical records chronicling treatment of Plaintiff, already in Defendant’s possession. However, Plaintiff does not intend to limit this treating physician’s testimony to the verbatim language contained in the medical records. None of these medical records were prepared in anticipation of litigation. 2. Any and all medical providers/personnel at: Spine and Orthopedics Specialist Aaron Smith, D.O. Sandeep Pillarisetty, M.D. 814 North John Young Parkway Kissimmee FL USA 34741 Speciality/expertise: Orthopedic Surgeon, Orthopedics, Neurosurgeon, Pain Management Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and permanency of injuries, including future treatment needed. This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding its care and treatment of the plaintiff, and offer opinions on causation and/or damages, including, but not limited to, diagnoses, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care, as well as any other relevant matters customarily testified to by treating physicians and other medical care providers within a reasonable degree of medical probability. For further explanation, please see medical records chronicling treatment of Plaintiff, already in Defendant’s possession. However, Plaintiff does not intend to limit this treating physician’s testimony to the verbatim language contained in the medical records. None of these medical records were prepared in anticipation of litigation. 3. Any and all medical providers/personnel at: Integrity Medical Group Thomas Cooper, M.D. Rafael Romero, PA-C Terel Newton, M.D. Donald Behrmann, M.D. Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and permanency of injuries, including future treatment needed. This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding its care and treatment of the plaintiff, and offer opinions on causation and/or damages, including, but not limited to, diagnoses, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care, as well as any other relevant matters customarily testified to by treating physicians and other medical care providers within a reasonable degree of medical probability. For further explanation, please see medical records chronicling treatment of Plaintiff, already in Defendant’s possession. However, Plaintiff does not intend to limit this treating physician’s testimony to the verbatim language contained in the medical records. None of these medical records were prepared in anticipation of litigation. 4. Any and all medical providers/personnel at: AKUMIN Jose Pizzaro, M.D. 1503 W Oak St. Kissimmee, FL 34744 Speciality/expertise: Radiology/Diagnostics Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and permanency of injuries, including future treatment needed. This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding its care and treatment of the plaintiff, and offer opinions on causation and/or damages, including, but not limited to, diagnoses, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care, as well as any other relevant matters customarily testified to by treating physicians and other medical care providers within a reasonable degree of medical probability. For further explanation, please see medical records chronicling treatment of Plaintiff, already in Defendant’s possession. However, Plaintiff does not intend to limit this treating physician’s testimony to the verbatim language contained in the medical records. None of these medical records were prepared in anticipation of litigation. 5. Timonthy Bundy, D.O., CLCP, ATC (Treating Physician/Retained Expert) 324 S. Hyde Park Avenue, Ste 275 Tampa, FL 33606 Specialty/expertise: Rehabilitation, Vocational Rehabilitation and Life Care Planning Testifying Subject: Causation and permanency of injuries, including future treatment needed as detailed in a Life Care Plan, review of past medical records and treatment records. Dates: January 9, 2024, January 16, 2024, January 18, 2024. This physician is a treating physician and retained expert who is expected to testify on behalf of the Plaintiff regarding his care and treatment of the Plaintiff, and offer opinions on causation and/or damages, including, but not limited to, diagnoses, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care, as well as any other relevant matters customarily testified to by treating physicians and other medical care providers within a reasonable degree of medical probability/certainty. This non-retained expert has reviewed any and all medical records pertaining to the care and treatment received by the Plaintiff. For further explanation please see the medical records chronicling the treatment of Plaintiff, already in Defendant’s possession. However, Plaintiff does not intend to limit this treating physician’s testimony to the verbatim language contained in the medical records. This physician has rendered reports of the medical treatment and/or radiological reads, and Plaintiff defers to the reports and/or testimony as to a summary of the subject matter of the testimony, as well as the substance of the facts and opinions this physician may have. None of these medical records were prepared in anticipation of litigation. In addition, this physician, based upon education, training and experience, based upon treatment of the Plaintiff, based upon the history obtained, based upon the medical records reviewed, and based upon the diagnostic studies reviewed, will testify that the trauma sustained by Plaintiff in the subject motor vehicle crash caused injuries which are permanent in nature. He will also offer opinions as to life care plan, rehabilitation and any other relevant expert opinions within the course and scope of his expertise. 6. Any and all medical providers/personnel at: BudDocs Marino A. Chanlatte, M.D. 917 Rinehart Rd. #2061 Lake Mary, FL 32746 Speciality/expertise: Medical Marijuana Testifying Subject: Treating physician(s)/provider(s) of Plaintiff; causation and permanency of injuries, including future treatment needed. This is a non-retained expert who is expected to testify on behalf of the plaintiff regarding its care and treatment of the plaintiff, and offer opinions on causation and/or damages, including, but not limited to, diagnoses, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care, as well as any other relevant matters customarily testified to by treating physicians and other medical care providers within a reasonable degree of medical probability. For further explanation, please see medical records chronicling treatment of Plaintiff, already in Defendant’s possession. However, Plaintiff does not intend to limit this treating physician’s testimony to the verbatim language contained in the medical records. None of these medical records were prepared in anticipation of litigation. 7. Michael Freeman Ph.D. (Retained Expert) Forensic Research & Analysis 4500 Kruse Way, Plaza I, Suite 385 Lake Oswego, Oregon 97035 Will discuss: Dr. Freeman is a retained expert and rebuttal witness who is expected to testify on behalf of the Plaintiff regarding injury causation, crash reconstruction, injury biomechanics, injury risk, and any other relevant expert opinions within the course and scope of his expertise. Deposition dates have been requested and C.V. will be provided upon receipt. 8. Farhad Booeshaghi, Ph.D., P.E. (Retained Expert) Global Engineering & Scientific Solutions 2777 Miccosukee Road, Suite 1 Tallahassee, FL 32308 Specialty/Expertise: Accident Reconstruction/Engineering/Human Factors/Biomechanics Testifying Subject: Accident Reconstruction/Mechanism of Injury/Human Factors, as well as authentication of mechanism of injury animation. Deposition dates have been requested and C.V. will be provided upon receipt. The said above-listed experts are expected to testify in their respective fields of expertise as to their medical care, treatment and or services rendered to Plaintiff; including but not limiting their testimony to the issues of the injuries suffered from the subject incident, reasonableness and necessity of care and treatment in the past and into the future, cost for future care, diagnosis and prognosis, as well as the issue of causation and permanency of the injury(ies). The curriculum vitae of each above-listed retained expert witness has been requested and will be furnished, if not already received and attached as composite exhibit hereto, to Defendant as soon as the same has been made available to counsel for Plaintiff. ** Please contact Plaintiff’s counsel at (407) 563-3694 to coordinate scheduling of any of the above noted providers/expert witnesses. 1. As both Plaintiff’s treatment for her incident-related injuries and discovery are ongoing, Plaintiff reserves the right to identify, as expert witnesses, any additional health care providers who render(ed) treatment to Plaintiff for accident-related injuries that become known prior to the discovery cut-off date in this action. 2. Any expert witnesses discovered in formal discovery prior to the discovery cut-off date in this action. 3. Any other applicable expert witness necessary to authenticate any item of evidence or exhibit listed on the Plaintiff’s Exhibit List. 4. Any applicable records custodian for any record or document listed on the Plaintiff’s Exhibit List. 5. Any witness listed by the Defendants to this cause in their Expert Witness Lists previously filed or to be filed. 6. Any expert witness who rendered deposition testimony in the discovery of this cause of action. 7. Any expert witness necessary to rebut testimony provided by any witness disclosed by the Defendant in its Expert Witness lists previously filed or yet to be filed. 8. Any and all expert witnesses listed or retained by the Defendants, whether formally listed, withdrawn as expert witnesses and regardless of whether called at trial by the Defendants, or later withdrawn by the Defendants. 9. Any and all compulsory medical examiners of the Defendants and/or any and all later or additionally disclosed compulsory medical examiners, whether formally listed on Defendants’ expert witness list and/or withdrawn as expert witnesses by the Defendants. 10. Any appropriate expert rebuttal witness necessitated by the proof of these issues. 11. Representatives of any alleged collateral source as raised by the Defendant. Such witnesses may or may not be considered expert, but rather informational within their field of interest. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 11, 2023, I electronically filed the forgoing with the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify that Pursuant to Rule 2051(b)(1) I forwarded the foregoing this same day via Email to: Scott A. Shelton, Esq. Gary L. Lewis, Esq., of Cole, Scott & Kissane, P.A., scott.shelton@csklegal.com; gary.lewis@csklegal.com; sanra.mcintosh@csklegal.com. /s/ Melissa Alzate Melissa Alzate, Esquire FBN 1013530 Morgan & Morgan Orlando P.A. 198 Broadway Avenue Kissimmee, Florida 34741 Telephone: (407) 452-1597 Facsimile: (407) 452-1623 Primary Email: MAlzate@forthepeople.com Secondary Email: MCoriano-Lopez@forthepeople.com Tertiary Email: VPagan @forthepeople.com Attorney for Plaintiff