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IN THE CIRCUIT COURT OF THE
THIRTEENTH JUDICIAL CIRCUIT, IN
AND FOR HILLSBOROUGH COUNTY,
FLORIDA, CIVIL DIVISION
THERESA QUINTANA, CASE NO.: 15-CA-005665
Plaintiff, DIVISION: H
vs.
DWIC OF TAMPA BAY, INC., a Florida
for-profit corporation d/b/a
MEDEXPRESS URGENT CARE -
NORTHSIDE, a registered fictitious
name, LESLIE KIDD, M.D., STEVEN J.
AUGUSTINE, D.C., STEVEN J.
AUGUSTINE, M.S., D.C., P.A., d/b/a
AUGUSTINE CHIROPRACTIC
OFFICES, and RAMON SANTIAGO,
M.D.,
Defendants.
/
PLAINTIFF’S SECOND MOTION IN LIMINE
REGARDING MEDICAL MALPRACTICE TRIAL MATTERS
COMES NOW the Plaintiff, THERESA QUINTANA, by and through her
undersigned attorneys, and moves this Honorable Court to exclude certain evidence she
anticipates the Defendants will offer and to prohibit the Defendants, their witnesses and
attorneys from mentioning, directly or indirectly, in any manner whatsoever, any of the
matters hereinafter set forth in this Motion.
Plaintiff asserts that these matters are not relevant and thus inadmissible pursuant
to §90.402 and §90.404, Florida Statutes, or if relevant, should be excluded pursuant to
§90.403, Florida Statutes, as the probative value of such matters is substantially
outweighed by the danger of unfair prejudice, confusion of issues and potential tomislead or confuse the jury. Further, the sustaining of an objection to questions
attempting to elicit these matters, or arguments discussing such matters, with or without
an instruction to the jury to ignore such matters, would not cure the prejudice but would
rather reinforce the impact of such prejudice.
MATTERS TO BE EXCLUDED
Based on matters raised during discovery and/or experiences in similar cases,
Plaintiff's counsel anticipates the Defendants’ potential request to offer in evidence or the
attempt to argue the following matters which are not properly placed before the jury in
this case:
A. CHARACTER EVIDENCE FAVORABLE TO THE DEFENDANT
This is a medical malpractice case. The essential elements which must be proven
by Plaintiff on her affirmative claims, or those which must be proven by the Defendants
on their affirmative defenses do not include the character or reputation of the Defendant
doctors. The Florida Evidence Code is explicit on this point. §90.404(1) provides:
"Evidence of a person’s character or a trait of his character is inadmissible
to prove that he acted in conformity with it on a particular occasion . . ."
This rule of rejection takes into account strong policy considerations which have been
explored by the major treatise writers and by the courts in virtually all jurisdictions. The
probative value of evidence of the possession or non-possession of some character trait,
or of a sterling or blemished reputation, is vastly outweighed by the prejudicial risks its
introduction into evidence provide. Specifically, Florida applies the general rule that the
character of a party in a civil case, where the character is not directly in issue (as in a
defamation case) is immaterial and is hence, inadmissible.
(1) Plaintiff anticipates that the Defendant physicians and/or their counsel may
seek to argue that Dr. Santiago, Dr. Kidd and/or Dr. Augustine has been practicing for anumber of years and “has never hurt anyone” or “had any claims brought against
him/her.” Even if these allegations are true, they clearly are not probative of any issue in
this case, and is expressly prohibited by §90.404(1). Obviously, if the Defendant had, in
fact, injured several other patients or had several paid claims on his record, Plaintiff
would not be able to use such information against him to argue that he, therefore, must
have injured the decedent in this action.
(2) The effect of this lawsuit on the reputation of Defendant is inadmissible, be it
through direct testimony or through argument by defense counsel. Even before the
enactment of the Evidence Code, the long-standing rule in Florida, relative to a party's
reputation in a lawsuit, was that evidence of good character or reputation is not relevant
and is inadmissible in a civil action where the reputation of the party has not been first
attacked by evidence of that character. General Telephone Company v. Wallace, 417
So.2d 1022 (Fla. 2d DCA 1982); Pandula v. Fonseca, 199 So. 358 (Fla. 1940).
Accordingly, the effect of this lawsuit on the reputation of the Defendant is clearly
inadmissible, be it through direct testimony or through argument or suggestion by
defense counsel. The harmful effect of arguments and implications as to how
detrimental a malpractice lawsuit may be to a Defendant's reputation have been directly
addressed and rejected by the Florida Supreme Court. In Stauf v. Holden, 94 So.2d 361
(Fla. 1957), the court held an instruction that the professional character and reputation of
a physician was the most important matter at stake and, hence the doctor should not be
condemned by evidence that did not point to his negligence was held to constitute
reversible error. In so doing, they said that any evidence offered to establish such
asserted fact would have been clear error.(3) Irrelevant and prejudicial testimony by doctors, family members or others
concerning family, personal habits, etc. of the Defendant physicians. Defendant doctors,
themselves or through surrogates, often attempt to testify about their family and children,
support of church or charities, family reaction to charges raised in the lawsuit and
personal anger at these charges, their view that “people will do anything for money’, the
supposed effects of the claims in the suit on the physician, the treatment by the
physicians of numerous patients for free or at reduced rates, and socially-prominent
persons the doctor supposedly treats. Such information has no relevance to any issues in
this case and is used improperly to elicit sympathy from the jury. §90.404.
(4) Attempts to build good character by current or former patients or employees or
by any physicians, nurses or other healthcare providers in this case. Defendant
physicians often attempt to introduce testimony that they are compassionate, kind,
concerned, friendly; that they are one of the “best” doctors in the community, that they
“try to help people,” that they have won or never lost a prior malpractice case, or that no
one has ever complained of inappropriate medical care in the past. Such evidence is an
improper attempt to build good character when the issue of character is clearly not
properly before the jury in a negligence case. §90.404; §90.609.
B. COLLATERAL IMPEACHMENT AND OTHER PREJUDICIAL MATTERS
1. Any attempt to argue or suggest an adverse effect this action or a verdict for
the Plaintiff may have upon the availability of medical treatment on residents of
Hillsborough County should be prohibited. Such an argument is an appeal to prejudice
and thus improper. Norman v. Gloria Farms, 668 So. 2d 1016 (Fla. 4" DCA 1996)
2. Any evidence that the Plaintiff was a plaintiff in a motor vehicle accident injury
lawsuit and that she has a long and complicated history arising from the motor vehicleaccident and/or a work-related back injury. Her involvement in a prior motor vehicle
accident claim and/or worker's compensation claim has no relevance to the issues in this
case; however, some of the facts of the earlier injuries are so intertwined as to be
inseparable. Whether or not a person has filed claims, or has claims for compensation
before any tribunal, is considered prejudicial and irrelevant. See, e.g., Zabner v. Howard
Johnson's, Inc., 227 So.2d 543 (4" DCA 1969); Colvin v. Williams, 564 So.2d 1249 (4
DCA 1990).
3. Any commentary by one expert on the qualifications of another expert. It is
improper to impeach an expert witness by eliciting from another expert witness what he
thinks of that expert, and allowing one expert to give his opinion as to the ability of
another constitutes clear reversible error. Carver v. Orange County, 444 So.2d 452 (Fla.
5" DCA 1993).
4. That Plaintiff has not called to testify any witness equally available to both
parties in this cause. Weeks v. Atlantic Coast L. Ry. Co., 132 So.2d 315 (Fla. 1 DCA
1961).
5. Any opinion testimony on the duty or standard of care of a lay person, or
outside the expert’s expertise.
6. The defense experts not be permitted to express any opinions at trial that
were not previously disclosed in their depositions. Office Depot, Inc. v. Miller, 584S0.2d
587 (4 DCA 1991); Binger v. King Pest Control, 401 So.2d 1319 (Fla. 1981)’
Department of Health and Rehabilitative Services v. J.B., 675 So,2d 241 (4! DCA 1996);
Garcia v. Emerson Electric Co., 677 So.2d 20 (3 DCA 1996); Grau _v. Branham, 626
So.2d 1059 (4"" DCA 1993); Southern Bell Telephone and Telegraph Co. v. Kaminester,400 So2d 804 (3 DCA 1981); Auto Owners Insurance Co. v. Clark, 675 So.2d 3 (4th
DCA 1996).
7. Any statement or inference that Plaintiff, Plaintiffs attorneys, or any of
Plaintiff's witnesses are insulting the intelligence of the jury or otherwise attempting to
mislead the jury. Walt Disney World Company v. Blalock, 640 So.2d 1156 (5 DCA
1994).
WHEREFORE, the Plaintiff respectfully requests this Court enter an Order in
limine precluding admission into evidence or arguments or comment at the Jury Trial of
this cause, any of the matters set forth herein, as matters are irrelevant and introduction
of evidence or argument/comment by counsel as to these matters would be unduly
prejudicial to the Plaintiff.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing has been filed by
using the E-Filing Portal which will furnish notice to: William Bonezzi, Esquire,
wbonezzi@bsphlaw.com; gvance@bsphlaw.com; and dbonezzi@bsphlaw.com, Kenneth
A. Scaz, Esquire, kscaz@gsgfirm.com and asmith@gsgfirm.com; and Richard M. Sebek,
Esquire, service-rsebek@bankerlopez.com and pwright@bankerlopez.com; this 23nd
day of February, 2017.
,
2 :
kee
JENNIFER GENTRY FERNANDEZ
Florida Bar oo ner
THE FERNANDEZ FIRM
. Swann Avenue
Tampa, FL 33609
Telephone: (813) 228-6313
eserve@fernandezfirm.com
Attorney for Plaintiff
Preview
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA, CIVIL DIVISION THERESA QUINTANA, CASE NO.: 15-CA-005665 Plaintiff, DIVISION: H vs. DWIC OF TAMPA BAY, INC., a Florida for-profit corporation d/b/a MEDEXPRESS URGENT CARE - NORTHSIDE, a registered fictitious name, LESLIE KIDD, M.D., STEVEN J. AUGUSTINE, D.C., STEVEN J. AUGUSTINE, M.S., D.C., P.A., d/b/a AUGUSTINE CHIROPRACTIC OFFICES, and RAMON SANTIAGO, M.D., Defendants. / PLAINTIFF’S SECOND MOTION IN LIMINE REGARDING MEDICAL MALPRACTICE TRIAL MATTERS COMES NOW the Plaintiff, THERESA QUINTANA, by and through her undersigned attorneys, and moves this Honorable Court to exclude certain evidence she anticipates the Defendants will offer and to prohibit the Defendants, their witnesses and attorneys from mentioning, directly or indirectly, in any manner whatsoever, any of the matters hereinafter set forth in this Motion. Plaintiff asserts that these matters are not relevant and thus inadmissible pursuant to §90.402 and §90.404, Florida Statutes, or if relevant, should be excluded pursuant to §90.403, Florida Statutes, as the probative value of such matters is substantially outweighed by the danger of unfair prejudice, confusion of issues and potential tomislead or confuse the jury. Further, the sustaining of an objection to questions attempting to elicit these matters, or arguments discussing such matters, with or without an instruction to the jury to ignore such matters, would not cure the prejudice but would rather reinforce the impact of such prejudice. MATTERS TO BE EXCLUDED Based on matters raised during discovery and/or experiences in similar cases, Plaintiff's counsel anticipates the Defendants’ potential request to offer in evidence or the attempt to argue the following matters which are not properly placed before the jury in this case: A. CHARACTER EVIDENCE FAVORABLE TO THE DEFENDANT This is a medical malpractice case. The essential elements which must be proven by Plaintiff on her affirmative claims, or those which must be proven by the Defendants on their affirmative defenses do not include the character or reputation of the Defendant doctors. The Florida Evidence Code is explicit on this point. §90.404(1) provides: "Evidence of a person’s character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion . . ." This rule of rejection takes into account strong policy considerations which have been explored by the major treatise writers and by the courts in virtually all jurisdictions. The probative value of evidence of the possession or non-possession of some character trait, or of a sterling or blemished reputation, is vastly outweighed by the prejudicial risks its introduction into evidence provide. Specifically, Florida applies the general rule that the character of a party in a civil case, where the character is not directly in issue (as in a defamation case) is immaterial and is hence, inadmissible. (1) Plaintiff anticipates that the Defendant physicians and/or their counsel may seek to argue that Dr. Santiago, Dr. Kidd and/or Dr. Augustine has been practicing for anumber of years and “has never hurt anyone” or “had any claims brought against him/her.” Even if these allegations are true, they clearly are not probative of any issue in this case, and is expressly prohibited by §90.404(1). Obviously, if the Defendant had, in fact, injured several other patients or had several paid claims on his record, Plaintiff would not be able to use such information against him to argue that he, therefore, must have injured the decedent in this action. (2) The effect of this lawsuit on the reputation of Defendant is inadmissible, be it through direct testimony or through argument by defense counsel. Even before the enactment of the Evidence Code, the long-standing rule in Florida, relative to a party's reputation in a lawsuit, was that evidence of good character or reputation is not relevant and is inadmissible in a civil action where the reputation of the party has not been first attacked by evidence of that character. General Telephone Company v. Wallace, 417 So.2d 1022 (Fla. 2d DCA 1982); Pandula v. Fonseca, 199 So. 358 (Fla. 1940). Accordingly, the effect of this lawsuit on the reputation of the Defendant is clearly inadmissible, be it through direct testimony or through argument or suggestion by defense counsel. The harmful effect of arguments and implications as to how detrimental a malpractice lawsuit may be to a Defendant's reputation have been directly addressed and rejected by the Florida Supreme Court. In Stauf v. Holden, 94 So.2d 361 (Fla. 1957), the court held an instruction that the professional character and reputation of a physician was the most important matter at stake and, hence the doctor should not be condemned by evidence that did not point to his negligence was held to constitute reversible error. In so doing, they said that any evidence offered to establish such asserted fact would have been clear error.(3) Irrelevant and prejudicial testimony by doctors, family members or others concerning family, personal habits, etc. of the Defendant physicians. Defendant doctors, themselves or through surrogates, often attempt to testify about their family and children, support of church or charities, family reaction to charges raised in the lawsuit and personal anger at these charges, their view that “people will do anything for money’, the supposed effects of the claims in the suit on the physician, the treatment by the physicians of numerous patients for free or at reduced rates, and socially-prominent persons the doctor supposedly treats. Such information has no relevance to any issues in this case and is used improperly to elicit sympathy from the jury. §90.404. (4) Attempts to build good character by current or former patients or employees or by any physicians, nurses or other healthcare providers in this case. Defendant physicians often attempt to introduce testimony that they are compassionate, kind, concerned, friendly; that they are one of the “best” doctors in the community, that they “try to help people,” that they have won or never lost a prior malpractice case, or that no one has ever complained of inappropriate medical care in the past. Such evidence is an improper attempt to build good character when the issue of character is clearly not properly before the jury in a negligence case. §90.404; §90.609. B. COLLATERAL IMPEACHMENT AND OTHER PREJUDICIAL MATTERS 1. Any attempt to argue or suggest an adverse effect this action or a verdict for the Plaintiff may have upon the availability of medical treatment on residents of Hillsborough County should be prohibited. Such an argument is an appeal to prejudice and thus improper. Norman v. Gloria Farms, 668 So. 2d 1016 (Fla. 4" DCA 1996) 2. Any evidence that the Plaintiff was a plaintiff in a motor vehicle accident injury lawsuit and that she has a long and complicated history arising from the motor vehicleaccident and/or a work-related back injury. Her involvement in a prior motor vehicle accident claim and/or worker's compensation claim has no relevance to the issues in this case; however, some of the facts of the earlier injuries are so intertwined as to be inseparable. Whether or not a person has filed claims, or has claims for compensation before any tribunal, is considered prejudicial and irrelevant. See, e.g., Zabner v. Howard Johnson's, Inc., 227 So.2d 543 (4" DCA 1969); Colvin v. Williams, 564 So.2d 1249 (4 DCA 1990). 3. Any commentary by one expert on the qualifications of another expert. It is improper to impeach an expert witness by eliciting from another expert witness what he thinks of that expert, and allowing one expert to give his opinion as to the ability of another constitutes clear reversible error. Carver v. Orange County, 444 So.2d 452 (Fla. 5" DCA 1993). 4. That Plaintiff has not called to testify any witness equally available to both parties in this cause. Weeks v. Atlantic Coast L. Ry. Co., 132 So.2d 315 (Fla. 1 DCA 1961). 5. Any opinion testimony on the duty or standard of care of a lay person, or outside the expert’s expertise. 6. The defense experts not be permitted to express any opinions at trial that were not previously disclosed in their depositions. Office Depot, Inc. v. Miller, 584S0.2d 587 (4 DCA 1991); Binger v. King Pest Control, 401 So.2d 1319 (Fla. 1981)’ Department of Health and Rehabilitative Services v. J.B., 675 So,2d 241 (4! DCA 1996); Garcia v. Emerson Electric Co., 677 So.2d 20 (3 DCA 1996); Grau _v. Branham, 626 So.2d 1059 (4"" DCA 1993); Southern Bell Telephone and Telegraph Co. v. Kaminester,400 So2d 804 (3 DCA 1981); Auto Owners Insurance Co. v. Clark, 675 So.2d 3 (4th DCA 1996). 7. Any statement or inference that Plaintiff, Plaintiffs attorneys, or any of Plaintiff's witnesses are insulting the intelligence of the jury or otherwise attempting to mislead the jury. Walt Disney World Company v. Blalock, 640 So.2d 1156 (5 DCA 1994). WHEREFORE, the Plaintiff respectfully requests this Court enter an Order in limine precluding admission into evidence or arguments or comment at the Jury Trial of this cause, any of the matters set forth herein, as matters are irrelevant and introduction of evidence or argument/comment by counsel as to these matters would be unduly prejudicial to the Plaintiff. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been filed by using the E-Filing Portal which will furnish notice to: William Bonezzi, Esquire, wbonezzi@bsphlaw.com; gvance@bsphlaw.com; and dbonezzi@bsphlaw.com, Kenneth A. Scaz, Esquire, kscaz@gsgfirm.com and asmith@gsgfirm.com; and Richard M. Sebek, Esquire, service-rsebek@bankerlopez.com and pwright@bankerlopez.com; this 23nd day of February, 2017. , 2 : kee JENNIFER GENTRY FERNANDEZ Florida Bar oo ner THE FERNANDEZ FIRM . Swann Avenue Tampa, FL 33609 Telephone: (813) 228-6313 eserve@fernandezfirm.com Attorney for Plaintiff