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Filing # 95984353 E-Filed 09/19/2019 02:25:57 PM
IN THE CIRCUIT COURT OF THE
17 JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA.
CASE NO: CACE14014218 (04)
SEAN DOMNICK, as Guardian Ad Litem for the
minors, KYLIE NGUYEN and KADEN
NGUYEN, KHAI NGUYEN, individually and as
Personal Representative of the Estate of MAI
TUYET NGUYEN, deceased, and on behalf of
KRISTEN HUYNH, KYLIE NGUYEN, the
surviving children of MAl TUYET NGUYEN, and
as the natural parent of KADEN NGUYEN, a
minor,
Plaintiffs,
vs.
PLANTATION GENERAL HOSPITAL, L.P.,
d/bfa PLANTATION GENERAL HOSPITAL;
ALEX BIRMAN, M.D.; SUNLIFE OB/GYN
SERVICES OF FORT LAUDERDALE, P.A.;
GEORGES EDOUARD, M.D.; GEORGES
EDOUARD, M.D., P.A., d/b/a PLANTATION
PAVILION OB/GYN; MELISSA MACHAN,
ARNP; ROBERTA SANTINI, M.D.; DORI
RATHBUN; FLORIDA UNITED RADIOLOGY,
L.C.,
Defendants.
/
DEFENDANT, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION
GENERAL HOSPITAL'S MOTION FOR JUDGMENT IN ACCORDANCE WITH
MOTIONS FOR DIRECTED VERDICT AND ALTERNATIVE
MOTION FOR NEW TRIAL!
COMES NOW, Defendant, PLANTATION GENERAL HOSPITAL, L.P.A d/b/a
PLANTATION GENERAL HOSPITAL, (PGH) pursuant to Florida Rules of Civil Procedure
1.480 and 1.530, and moves this Court for the following relief: (1) entry of a judgment in
1 PGH has separately filed a Motion requesting a hearing on its post-trial motions.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/19/2019 02:25:56 PM.****accordance with Defendant's Motions for Directed Verdict; and (2) alternatively, for a new
trial on all issues.2 In support, PGH would show:
1. This is a Medical Malpractice/Wrongful death case by SEAN DOMNICK, as
Guardian Ad Litem for the minors, KYLIE NGUYEN and KADEN NGUYEN, KHAI
NGUYEN, individually and as Personal Representative of the Estate of MAl TUYET
NGUYEN, deceased, and on behalf of KRISTEN HUYNH, KYLIE NGUYEN, the surviving
children of MAl TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor
and against PLANTATION GENERAL HOSPITAL, L.P., d/b/a PLANTATION GENERAL
HOSPITAL (hereinafter PGH).
2. Plaintiff alleges PGH was negligent regarding the care and treatment of Mai
Tuyet Nguyen and that its negligence caused her death as well as injuries to her son,
Kaden Nguyen.
3. The case was tried before a jury between August 12, 2019 through
September 4, 2019.
4. The jury returned its verdict on September 4, 2019 finding that PGH was
negligent and that negligence was a legal cause of the death of Mai Tuyet Nguyen and
for injuries to Kaden Nguyen.
The jury apportioned liability as follows:
Plantation General Hospital 98%
George Edouard, MD 1%
Roberta Santini, MD 1%
2 PGH has separately filed a Motion for Set Off and Motion to Reduce Judgment pursuant
to section 766.118(6), Florida Statutes. By filing this motion, PGH does not waive its rights
as set forth in those motions.5. The jury found that Dr. Edouard was an agent of and in a partnership with
Plantation General Hospital.
6. The jury found that Dr. Santini was an agent of and in partnership with
Plantation General Hospital.
7. The jury awarded damages as follows:
Kristin Huynh-loss of support $ 46,000
Kristen Huynh- pain and suffering $ 5,000,000
Kylie Nguyen-loss of support $ 112,000
Kylie Nguyen-pain and suffering $ 5,000,000
Kaden Nguyen-loss of support $ 158,000
Kaden Nguyen-pain and suffering $ 5,000,000
Kaden Nguyen-past/future medical expenses $ 1,400,000
Kaden Nguyen-loss of earning capacity $ 500,000
Kaden Nguyen-pain and suffering $ 1,000,000
TOTAL $ 18,216,000
8. Pursuant to Florida Rule of Civil Procedure 1.480, PGH moves to set aside
the verdict and any judgment thereon and to enter judgment in accordance with its
Motions for Directed Verdict.
9. Alternatively, pursuant to Florida Rule of Civil Procedure 1.530, PGH moves
for a new trial on all issues.
MOTION FOR JUDGMENT IN ACCORDANCE
WITH MOTIONS FOR DIRECTED VERDICT
PGH is entitled to judgment in its favor for the following reasons:
1. PGH adopts its oral and written Motions for Directed Verdict and Summary
Judgment and arguments made at the hearings on those motions. For the reasons stated
in those motions, judgment should be entered in favor of PGH.
2. There is no legal or competent evidence on the issues of fact raised by the
pleadings from which the jury could legally render a verdict in Plaintiffs’ favor.3. The testimony presented by Plaintiffs was speculative and inadmissible. A
verdict cannot be based on speculation. Absent this speculative testimony, Plaintiffs failed
to establish breach of a duty which was a legal cause of the death of Mai Tuyet Nguyen
or injury to Kaden Nguyen.
4. There is no evidence that PGH was responsible for the actions of Dr.
Edouard or Dr. Santini.
5. PGH did not owe a nondelegable duty to Plaintiffs.
6. There is no evidence, or the evidence is insufficient, to support the jury's
findings that Dr. Edouard or Dr. Santini were actual or apparent agents of PGH, or in a
partnership. The evidence affirmatively establishes that Dr. Edouard or Dr. Santini were
not actual or apparent agents and were not in a partnership with PGH.
7. Actual agency exists where a principal authorizes another to act on his or
her behalf. See Fla. Std. Jury Instr. (Civ.) 402.9.
8. Apparent agency exists only if each of the three elements are present: (a) a
representation by the purported principal; (b) a reliance on that representation by a third
party; and (c) a change in position by the third party in reliance on the representation.
Mobil Oil Corp. v. Bransford, 648 So. 2d 119 (Fla. 1995); see also Fla. Std. Jury Instr.
(Civ.) 402.9.
9. There was no evidence from which the jury could find an actual or apparent
agency relationship as to Dr. Edouard. The evidence established that Dr. Edouard was in
private practice and delivered Mai Tuyet Nguyen's first child, as well as her second child.
Mai Tuyet Nguyen saw Dr. Edouard at his private office which was located in an officebuilding that was not affiliated with Plantation General Hospital and then he sent her to
Plantation General Hospital for induction of labor.
10. There was no evidence from which the jury could find an actual or apparent
agency relationship as to Dr. Santini. See Fla. Std. Jury Instr. 402.9. The evidence
established that Dr. Santini was an employee of Florida United Radiology, L.C. when she
read the ultrasound in question.
11. The law is clear that the granting of staff privileges to a physician by a
hospital to a particular healthcare provider, without more, is insufficient as a matter of law
to create jury questions on whether the hospital impliedly represented to the public that
the healthcare provider was the hospital's apparent agent. Stone v. Palms West Hosp.,
941 So. 2d 514 (Fla. 4th DCA 2006); see also, Liberatore v. N.M.E. Hosps., Inc., 711
So. 2d 1364 (Fla. 4th DCA 1998) ("As a general rule, hospitals are not vicariously liable
for negligence of a physician on its staff’) (citation omitted). In Quesada v. Mercy Hospital
Inc., 41 So. 3d 930 (Fla. 3d DCA 2010), the court held that an affidavit submitted by the
plaintiff in which he stated that he did not select the surgeon involved in the case, but
rather accepted that person provided by the hospital and that it was his impression that
the surgeon was a hospital employee, were insufficient to create genuine issues of
material fact as to whether or not the surgeon was an apparent agent of the hospital. Id.
at 931.
12. Further, a partnership exists when two or more persons join together or
agree to join together in a business or venture for their common benefit, each contributing
property, money or services and each having an interest in any profits. See also Fla. Std.
Jury Instr. (Civ.) 401.14d.13. There is no evidence in the record to support a finding that PGH and either
of these doctors was engaged in a partnership. In fact, the evidence was to the contrary.
WHEREFORE, PGH respectfully requests this Court set aside the verdict and
enter judgment in its favor, or, at a minimum, find that as a matter of law, that neither Dr.
Edouard or Dr. Santini were actual or apparent agents of PGH or were in a partnership
with PGH.%
MOTION FOR NEW TRIAL*
Alternatively, PGH is entitled to a new trial because the verdict as to liability and
damages is contrary to the manifest weight of the evidence including, but not limited to
its finding of agency and partnership, and its determination that any negligence on the
part of PGH was a cause of injury to Kaden. Additionally, the verdict is not supported by
competent, substantial evidence and the verdict is contrary to the law.
Further, PGH submits that the Court erred and/or abused its discretion with respect
to certain evidentiary rulings, resulting in it being deprived of a fair trial. Most significantly,
the misconduct of Plaintiffs’ counsel throughout the trial resulted in a verdict that was
based on passion and prejudice rather than the evidence. The singular of combined
prejudicial effect of these errors warrants a new trial. These will be described more fully
below.
A. Refusal to Strike Juror Isaac
The Court erred and/or abused its discretion in failing to strike Juror Isaac after
Defense counsel witnessed her interacting with Kai Nguyen, the personal representative
3 In all events, in their closing, Plaintiffs' counsel conceded that any judgment must be
reduced by the percentage of fault allocated to Drs. Edouard and Santini.
4PGH adopts all arguments made before and during trial on the issues set forth herein.of the Estate. Defense counsel brought this to the Court's attention and requested that
the juror be stricken. The failure to do so caused unfair prejudice to PGH.
Compounding the prejudice, the Court brought juror Isaac into the courtroom and
questioned her. Because juror Isaac had made eye contact with defense counsel, it was
apparent that she knew that the defense attorneys informed the Court of the interaction.
This served to further prejudice PGH because the juror may well have been hostile to
PGH for reporting her to the Court.
There were alternates available that could have taken her place and the case could
have proceeded.
B. Improprieties in Opening Statement
The Court erred and/or abused its discretion in overruling PGH's objections and
denying PGH's motion for mistrial made during Plaintiffs' opening statement. The purpose
of opening statement is for counsel to tell the jury what they believe the evidence will
show and not to argue the evidence. Here, the opening was repetitive, argumentative and
inflammatory.
As one example, instead of focusing on the issue to be tried—whether PGH's
conduct fell below the standard of care—Plaintiffs' counsel repeatedly argued that PGH
put profits over patient care. Emboldened by the Court's denial of PGH's motion for
mistrial, this became a theme of Plaintiffs‘ case, and became a theme in closing argument.
Counsel also improperly argued that PGH perpetrated a coverup by not producing
evidence and counsel tried to blame prior defense counsel. This was highly inflammatory
and improper.c. Undisclosed Opinion Testimony
The Court erred and/or abused its discretion in admitting opinion testimony from
expert witnesses whose opinions were not previously disclosed.
The law is well settled that a party may not conduct trial by ambush. Binger v. King
Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981). Indeed, this Plaintiffs' counsel has had
a verdict overturned on this basis. See Doctors Co. v. Plummer, 210 So. 3d 711, 718 (Fla.
5th DCA 2017) (court applied Binger and concluded the trial court erred in admitting
surprise expert testimony that prejudiced defendant). See also Perryman v. Crawford,
968 So. 2d 83, 85 (Fla. 4th DCA 2007) (affirming new trial order for plaintiff where
defendant's expert presented medical opinion testimony that had not been previously
disclosed).
At trial, over objection, Plaintiffs expert, Dr. Silverstein was allowed to express
Opinions, which Plaintiffs conceded were new and previously undisclosed. Specifically,
Dr. Silverstein told the jury that he did not have all of the audit trails, and therefore, the
medical records were unreliable and “corrupted.” This was the first time this issue was
every raised by Dr. Silverstein or anyone else. This new opinion allowed Plaintiffs to argue
that the defense was “made up,” and that it was relying on a record that could not be
trusted. This served to undermine the credibility of the defense.
D. Plaintiffs‘ Counsel's Misconduct
From the commencement of the trial, Plaintiffs' counsel, Maria Tejedor and Carlos
Diez Arguelles, engaged in a course of conduct which was improper and highly
prejudicial. As referenced supra, it began in opening, and, as discussed infra, it continued
all the way through closing.Counsel repeatedly spoke too loudly to each other while in close proximity to the
jury while PGH counsel was cross-examining witnesses, and at sidebars. Counsel
engaged in repeated, disruptive and improper speaking objections. Counsel used leading
questions such that counsel was in effect testifying rather than the witness. Counsel made
editorial comments before asking questions and routinely interrupted witnesses while they
were trying to respond.
PGH's counsel objected to this type of conduct on multiple occasions and moved
for a mistrial based on this highly egregious conduct, but that motion was denied.
Counsel’s conduct continued, forcing the defense to continually assert objections
resulting in unfair prejudice to PGH. In short, counsel's overall conduct in the courtroom
conduct deprived PGH of its right to a fair trial and deprived the jury of a calm and
considerate atmosphere in which to determine its verdict.
In addition, the trial was tainted by the following improprieties:
1. Improper comments during the testimony of defense expert,
Chalhub: Counsel's conduct was particularly egregious during the cross examination of
defense expert, Dr. Chalhub. (A copy of Dr. Chalhub's cross examination is attached as
Exhibit A). Counsel repeatedly asked improper questions and made improper comments
which led to PGH's counsel moving for a mistrial (Id. at 65). The examination included the
following:
(a) Improper attacks on the expert:
Counsel made improper comments attacking Dr. Chalhub including:
Q: Okay Doctor, first of all, | would never have you review a case for me, even.
A: I know, but you did—
Q: Ever?—Ms. Tejedor.
Doctor, let's make this clear, | would never have you review a case for a
cat.
A: Well, you need to look at your records, because—
The Court: next question
Ms. Tejedor: That's wishful thinking.
(Exhibit A at 18) (emphasis added).
Q: You can keep making things up during your depo, during your
testimony?
A: Ms. Tejador, I'm under oath.
(Id. at 20).
Q: No, you don't get—you see, here's the good thing about this. This is
called cross exam.
Okay.
You've done this before. In fact, you've done it for almost as long as |
have been alive. So, here is the way it goes. | ask the questions and
you answer.
(Id. at 27).
Q. Who's confused now? You are.
(Id. at 121).
(b) Repeated interruptions:
Ms. Tejedor repeatedly interrupted Dr. Chalhub thereby preventing him from
completely answering the questions. In fact, Dr. Chalhub asked if he could answer the
question and Plaintiffs’ counsel refused to allow him to finish. Examples of this conduct
include:
Witness: May | explain it? Yes.
10(Id. at 29).
A:
Q
A:
Q
(Id. at 39).
Q:
A
Q
A
| don't know need an explanation.
You know, | don't have any problem with that. He just—
No, no, no.
Wait a minute.
Here's my question. My question is: Do you know that he is a licensed
physician licensed to practice medicine in the state of Florida?
I'm not asking you about the training.
Wait listen.
I'm not asking you about the training.
Listen Mrs. Tejedor, you are credentialed to do that.
Mr. LaCava: He's in the middle of answering that question.
Ms.
Tejedor: I'm not asking—
The Court: Excuse Me.
Ms. Tejedor: It's a simple question.
(Id. at 43).
A:
2 >.
9 > Oe
Well wait a minute.
Perinatal asphyxia can cause hypotonia, correct?
Yes, but | need to explain that.
Okay. Let me ask you this question: You would agree that this little boy
was hypotonic after he was born?
He was.
He was diagnosed with hypotonia at Joe DiMaggio, correct?
Correct but that's—
And ten months later...
11(Id. at 55). See also Id. at 7.
(c) | Comments on Socio-Economic Disparity:
When discussing the Early Steps Program with Dr. Chalhub, Plaintiffs’ counsel told
the jury that the program was for "kids who aren't rich.” (Id. at 60). This was clearly
irrelevant and only served to create sympathy for Plaintiffs based on their economic
status.
(d) Improper racial comments:
During cross examination, Ms. Tejedor told the jury that Dr. Chalhub had another
case in which he examined an "African American" client and claimed she was not brain
damaged. (Id. at 158). Again, the comment was totally irrelevant and could only serve to
inflame the jury.
2. Improper Use of Funeral Photograph: In complete disregard of the
Court's ruling, that Plaintiff could not show the jury a photograph of Mai Tuyet Nguyen in
a casket, Plaintiff counsel displayed the photograph on the screens so the jury could see
the prejudicial photograph. Defendant's motion for mistrial was denied.
E. Rulings with Respect to Plaintiffs’ Experts and Evidence
The Court erred or abused its discretion with respect to its ruling as to Plaintiffs’
experts and evidence including the following:
1. Dr. Lichtblau: The Court erred and/or abused its discretion in
allowing Plaintiffs' expert, Dr. Lichtblau to talk about Kaden's 2019 school records when
precluding defense expert, Dr. Chalhub from talking about it.
2. Dr. Gubernick: First, the Court erred or abused its discretion in
allowing Dr. Gubernick, Plaintiffs’ OB/GYN expert to testify as to nursing standard of care
in contravention of Florida law. Second, Dr. Gubernick continuously utilized an improper
12standard of care by testifying about "safe care” rather than the legal definition. Third, Dr.
Gubemick's trial testimony was split up with a week in between the initial direct, the
completed direct and cross examination. On the second day, Plaintiff rehashed practically
every question, answer and opinion which overemphasized Plaintiffs’ theory of the case
and was therefore unfairly prejudicial to the defense. Fourth, in his testimony, he acted
as an advocate, rather than an expert, continually using inflammatory phrases to describe
the care that was rendered and put PGH in a negative light.
3. Nurse MahIimeister: The Court erred or abused its discretion in
allowing Plaintiffs nursing expert, Mahlmeister to testify regarding causation and
specifically that the breach of the standard of care caused Mai Tuyet Nguyen's death and
Kaden's injuries. The Court allowed Plaintiffs’ attorneys to tag team, one attorney
performed the direct examination while the other redirected the witness. Further the Court
allowed repeated leading questions.
4. Dr. Miranda: Prior to trial, PGH filed a Daubert motion directed to the
use of qualitative EEG studies, which the many courts had found to be inadmissible. The
Court denied that motion. Thereafter, Plaintiffs did not call Dr. Miranda as a witness, nor
was his deposition transcript read to the jury. Yet, the Court allowed the jury to hear about
the qualitative EEG and impermissibly used it to show that Kayden Nguyen "may develop
seizures" in the future and that he has brain damage. The Court also abused its discretion
in denying PGH’s motion to strike Dr. Miranda's records because his conclusions in those
records was based on the unreliable, unscientific qualitative EEG studies.
5. References to prior defense counsel's actions: Counsel referred
to the actions of prior defense counsel during the litigation including his failure to produce
13autopsy photographs, canceling Dr. Price's deposition at the last minute after Plaintiffs’
counsel drove from Orlando Florida and was sitting in the next room, failing to produce a
complete medical chart and audit trail and discarding the placenta without photographing
it or producing it to Dr. Price for examination. This allowed Plaintiffs to suggest to the jury
that there was a cover-up to prevent the family from finding out what "really" happened.
6. Improper use of depositions: Witnesses, including expert
witnesses, were permitted to testify about the content of other witnesses' depositions.
This resulted in the experts serving as a conduit for inadmissible evidence. For example,
counsel improperly used Dr. Edouard's deposition. Counsel also made comments about
witnesses' testimony even though the witness had not testified (e.g. Dori Rathburn).
7. Hearsay from Mr. Nyugen: The court allowed hearsay testimony
from Mr. Nyugen regarding agency issues.
F. Improper_Comments Suggesting PGH Was _ Hiding, Altering Or
Destroying Evidence
There was no claim for spoliation of evidence pled in this case and there was no
evidence in the record to support a claim that any evidence had been altered, destroyed
or not properly preserved. Despite this, throughout the trial, Plaintiffs created the
impression that PGH was hiding evidence, altering evidence and even destroying
evidence.
First, over objection, Plaintiffs suggested that PGH did not produce complete audit
trails for May Tuyet Nguyen, even though there was never any evidence that anything
was missing prior to the trial. Plaintiffs showed the jury prior counsel's response to a
request for production enclosing the audit trails. Plaintiffs then had their expert, Silverstein
14tell the jury that there were other audit trails that should have been produced.® In fact,
however, Plaintiff never made any attempt during the litigation to obtain any additional
audit trails from the hospital. There was no evidence PGH was hiding any audit trails. In
short, there was no evidence that PGH destroyed any audit trails.
Second, Plaintiffs impermissibly suggested that PGH altered Dr. Edouard's record
of the last pre-natal office visit. Several times, Plaintiffs’ counsel told the jury that her
“office received records from Dr. Edouard's office" and those records were different than
the records in the original chart and were different than the records in the Plantation
General Hospital chart. In fact, however, there was no evidence to support that the record
plaintiff said was "altered" came from Dr. Edouard's office. Plaintiffs argued that Dr.
Edouard "destroyed" the original notes from his office visits with Mai Nguyen because
they were "photocopies." There was no evidence to support this statement.
Third, Plaintiffs suggested that the placenta should have been preserved, and
suggested that PGH acted improperly by failing to do so. Plaintiffs made this argument,
in an attempt to support their unsupported claim that PGH was hiding evidence. This
argument was being made in spite of their own experts’ admission that sending the
placenta to the laboratory where it was described appropriately and sectioned
appropriately is what is typically done in every hospital around the country.
G. Rulings with Respect to Defense Experts and Evidence
The Court erred and/or abused its discretion by:
1. Allowing evidence of income that defense expert, Elias Chalhub
earned throughout his career through his expert consulting or expert witness work, as
5 As set forth above, not only was this factually unsupported, but it was a new opinion.
15impeachment evidence when the proper method of impeachment does not allow this type
of information. (Exhibit A at 13-17, 25).
2. Allowing Plaintiff to ask Dr. Chalhub about the number of licensed
Florida neurologists (Id. at 47- 48, 62-64) which allowed the jury to infer that the hospital
had to go "out of state" to retain an expert.
3. Refusing to allow Dr. Chalhub to testify regarding school records he
received after his deposition even though there was no change in opinion.
4. Allowing Plaintiffs’ counsel to question Dr. Chalhub about his
examination about another of Plaintiffs’ counsel's clients and comparing the
examinations.
5. The Court erred in excluding Dr. Price's autopsy report, concluding
in error as it was "an expert report." Dr. Price was hired by the Nguyen family and could
not afford to pay for the autopsy. PGH paid Dr. Price for the autopsy. Dr. Price testified
that she performed an independent autopsy. However, because PGH paid Dr. Price, the
Court improperly excluded the autopsy report.
H. Improper References to Agency Relationship
As set forth above, the Court erred in allowing the jury to consider an alleged
agency or partnership relationship between PGH and Drs. Edouard and Santini. Once it
allowed those claims to proceed, the jury was allowed to consider the acts of these
doctors as a basis for imposing liability on PGH. The unfair prejudice on this issue was
compounded by the fact that in closing, Plaintiffs focused extensively on the alleged
agency relationship as the basis to impose liability on PGH. For example, counsel focused
on the issue of informed consent which was an issue that only related to Dr. Edouard.
The issue was further confused by the fact that the jury was then asked to consider
16and allocate fault to the doctors. PGH was prejudiced because the jury was led to believe
that PGH was responsible for their actions.
IL Damages
The court erred and/or abused its discretion in the following rulings concerning
damages:
1. Future Medical Expenses: allowing Plaintiffs to introduce improper
and speculative evidence in support of a claim for future medical expenses. Plaintiffs’
evidence and argument on this issue resulted in an impermissible recovery and an overall
excessive verdict.
2. Future Lost Earning Ability: allowing Plaintiffs to introduce
improper and speculative evidence in support of a claim for future lost earning ability.
Plaintiffs' evidence and argument on this issue resulted in an impermissible recovery and
an overall excessive verdict.
J. Errors with Respect to Jury Instructions
As it relates to jury instructions, the court erred with respect to the following:
1. instructing the jury on Mai Tuyet Nguyen's negligence, even though
it was not asserted by the defense.
2. Instructing on non-delegable duty,
3. instructing the jury regarding vicarious liability/agency,
4. Denying PGH's requested jury instructions,
5. Granting Plaintiffs’ requested jury instructions.
K. Improper Comments During Closing Arguments
The purpose of closing argument is to assist the jury with its application of the law
that the judge has given to the facts of the case. Harrison v. Gregory, 221 So. 3d 1273,
171274 (Fla. 5th DCA 2017) (citing Murphy v. Int'l Robotic Sys., Inc., 76 So. 2d 1028 (Fla.
2000)). While attorneys should be afforded great latitude in presenting closing argument,
they must "confine their argument to the facts and evidence presented to the jury and all
logical deductions from the facts and evidence." R.J. Reynolds Tobacco Co. v. Robinson,
216 So. 3d 674, 681 (Fla. 1st DCA 2017) (citation omitted); Knoizen v Bruegger, 713
So. 2d 1071, 1072 (Fla. 5th DCA 1998) (same).
Attorneys are governed by the Rules Regulating the Florida Bar. Rule 4-3.4. states:
A lawyer shall not... in trial, allude to any mater that the lawyer does not
reasonably believe is relevant or that will not be supported by admissible
evidence, assert personal knowledge of facts in issue except when testify
as a witness, or state a personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant, or the guilt or
innocence of an accused.
City of Orlando v. Pineiro, 66 So.3d 1064, 1069 (Fla. 5th DCA 2011) (quoting
R. Regulating Fla. Bar 4-3.4(e)). This rule not only prevents lawyers from placing their
own credibility at issue in a case, it also limits the possibility that the jury may decide a
case based on non-record evidence. See Davis v. S. Fla. Water Mgt. Dist., 715 So. 2d
996, 999 (Fla. 4th DCA 1998); Forman v. Wallshein, 671 So. 2d 872, 875 (Fla. 3d DCA
1996). It helps ensure that juries render verdicts based on record evidence and applicable
law, and not on impermissible matters interjected by counsel during closing argument.
Murphy, 766 So. 2d at 1028.
Moreover, closing argument must not be used to "inflame the minds and passions
of the jurors so that their verdict reflects an emotional response. ... rather than the logical
analysis of the evidence in light of the applicable law.” Bertolotti v. State, 476 So. 2d 130,
134 (Fla. 1985).
18In direct and repeated contravention of the rules of professional conduct and
Florida law, Plaintiffs’ counsel's misconduct culminated in a closing argument replete with
highly improper, prejudicial and inflammatory comments. (Plaintiffs’ closing argument is
attached as Exhibit B). Over repeated objections by PGH, Plaintiffs’ counsel's closing
argument was fraught with comments that were improper, highly prejudicial, and highly
inflammatory. PGH's motion for mistrial was denied.
Some of these comments were blatant and express, others were subtle and
implied. They all had the effect of denying PGH a fair trial. Viewed individually, Plaintiffs'
counsel's comments were so fundamentally improper as to require a new trial in this
matter. Certainly, when considered collectively, and along with the numerous other
instances of misconduct and grounds for mistrial, the cumulative effect was to deny PGH
of a fair trial, mandating that a new trial be granted.
Al Appeals to the Jury's Sympathy: Counsel repeatedly urged the
jury to use its power to reach a verdict based on emotion and sympathy.
For example, counsel argued:
Kids have—kids have challenges that aren't brain damaged. Imagine going
through life with a brain injury, and Here's what the biggest challenge is
going to be for this little boy. He can't wear a sign on his chest that says,
you know, I'm brain damaged. I'm sorry that | can't behave. I'm sorry that
I'm making bad decisions. I'm sorry that I can't learn. Society is going to hold
him to task like somebody who doesn't have brain damage. And our prison
system is filled with kids who can't learn, filled with kids with low IQs, filled
with kids that were just left in the system and didn't have an opportunity—
(Exhibit B at 41-42).
® This is also an improper conscience of the community argument. An objection was
sustained on that basis.
19Additionally, Plaintiff argued that because Mai Tuyet Nguyen was not there to
protect Kristen, she was abused. (Id. at 55).
2. Comments Asking the Jury to Act as The Conscience of the
Community And Send A Message: Counsel made highly inflammatory remarks that
were designed to have the jury become the conscience of the community with the moral
obligation to punish PGH. These arguments include, but are not limited to, reminders that
the jury had the power and moral obligation to correct injustices visited on Plaintiffs.
Plaintiffs repeated told the jury to make PGH accountable for its actions rather than
compensate the family which is in direct contradiction to Florida law.
For example, counsel argued:
| have not had the ability to bring them to justice, to hold them accountable.
We all have a purpose in life. We all do, and our purpose is to use the gifts
and the talents that we're given for the greater good, to serve one another,
because there is no greater joy in life than service.
No greater joy in life, and we serve every day in our Jobs. Doesn't matter if
we get paid for it. The number one priority is service, service to one another.
You know, when | was 18, the most important mentor of my life told me one
time, he said, whatever path you choose, whatever career you use in life,
to use your talents and your gifts that were given to you, whatever one you
choose, you choose whichever one you think is best, whichever one you're
inspired to do, but whichever one you choose, you do — you first and
foremost do things right, and you do things right to serve one another.
And don't worry about success and don't worry about the money, because
when you do things right in life, when you do them right, everything else will
come and everything will be okay. Somebody should have told Plantation
General Hospital that, because had they made patients’ safety—
(Id. at 11-12). PGH's objection was overruled.
Counsel continued with this theme:
But today, members of the jury, that is your Purpose. That is your purpose.
You know, you were called almost four weeks ago, and you, with courage
and conviction, accepted. And you showed up to jury duty, and with courage
20and conviction, we didn't hear excuses like we did from the hundreds of
people as to why they didn't have the courage to be here. And through
courage and conviction, you've come here every day, heard the evidence,
and it hasn't been easy.
And through courage and conviction, you're here today, and your verdict
requires courage and conviction.
(Id. at 23).
You have that awesome power today to hold them accountable through
your verdict, through your voice. A verdict for this hospital is silence.
(Id. at 29-30) (objection sustained).
A verdict for the family in this case will hold this hospital responsible. A
verdict for the hospital is silence. And it's only through accountability and
responsibility is that we achieve greatness. Winston Churchill said, "The
price of greatness is accountability.” That's the price of greatness.
(Id. at 30). When Defense counsel objected, the Court instructed counsel to talk about
the evidence.
Counsel made other similar comments:
And silence is returning a verdict of anything less than compensates this
family in full for the full measure of their damages.
(Id. at 31).
And to award anything less than a full measure, full measure of damages,
would be not—would be not to render a verdict for this family, would be to
be silent.
(Id. at 59-60).
Counsel asked the jury to award $7 million because that is what "would hold this
hospital accountable." (Id. at 59) (after counsel objected, Court asked counsel to
rephrase).
In their rebuttal closing, counsel told the jury:
We want justice. That's what we're asking for, and we're asking for your
verdict to speak and not to be silent, and we're asking for justice.
21(Id. at 85).
Finally, counsel told the jury:
At the close of this case, a verdict for the defense will be silence. This is a
time of challenge. And when you go back there, and you deliberate, render
a verdict that speaks courage, a verdict that speaks truth, a verdict that
brings hope when there is despair, a verdict that brings light to darkness, a
verdict that speaks justice. And give this case a voice and return a verdict
for this family that says what happened in this case should never have
happened, and it's not okay.
(Id. at 101).
Arguments urging the jury to act as the conscience of the community are highly
improper. Stokes v. Wet 'N Wild, Inc., 523 So. 2d 181, 182 (Fla. 5th DCA 1988); see also
Superior Indus. Int'l, Inc. v. Faulk, 695 So. 2d 376, 380 (Fla. 5th DCA 1997) ("Appeals to
‘community conscience’ and 'civic responsibility’ are inappropriate."); R.J. Reynolds
Tobacco Co. v. Gafney, 188 So. 3d 53, 57 (Fla. 4th DCA 2016) (holding plaintiff may not
utilize "send a message" and conscience of the community arguments when used in a
way that links the "send a message" to compensatory liability or damages).
Counsel's comments warrant a new trial.
3. Improper Golden Rule Arguments: “[A] golden rule argument
suggests to jurors that they put themselves in the shoes of one of the parties, and is
impermissible because it encourages the jurors to decide the case on the basis of
personal interest and bias rather than on the evidence.” Metro. Dade Cty. v. Zapata, 601
So. 2d 239, 241 (Fla. 3d DCA 1992); Domino's Pizza, LLC v. Wiederhold, 248 So. 3d 212,
228 (Fla. 5th DCA 2018) (reversing for a new trial where plaintiff's attorney made improper
golden rule arguments); SDG Dadeland Assocs.., Inc. v. Anthony, 979 So. 2d 997, 1003
(Fla. 3d DCA 2008) (reversing for a new trial, stating that golden rule arguments “strike
at the very heart of our justice system”); Bocher v. Glass, 874 So. 2d 701, 703 (Fla. 1st
22DCA 2004) (reversing based on improper golden rule argument, stating “[i]f jurors are to
remain fair decision-makers, the trial court must guard against a deliberate act of counsel
that serves to put the jury center stage in the drama that should be the trial”).
Examples of Golden Rule arguments included the following:
Asking the jury "Can you imagine this child?"
(Id. at 32).
Later, counsel asked the jury to "imagine going through life with a brain injury." (Id.
at 41).
Counsel also asked the jury:
What can we do to make him as whole as we can? What can we do to hold
this hospital responsible?
(Id. at 43) (emphasis added; objection and motion to strike—no ruling).
Although subtle, counsel asked the jury to place themselves in the shoes of the
children when she told the jury with regard to pain and suffering:
The great Martin Luther King said, "Life begins to end—life begins to end
the moment that we are silent on things that matter." Mai Nguyen mattered.
Mai Nguyen's life mattered. Kaden, Kylie, and Kristen mattered. She was
their life. She was their everything. She was their beginning and their end.
She was the reason, like every mother, every good mother, she defines a
person—a mother defines your self-esteem, your self-worth, who you are.
A mother teaches you how to love.
You know, Pablo Picasso once said, you know, "My mother told me, if | was
a soldier, I'd be a general.
My mother told me, if | was a monk, I'd be a pope. | became a painter, and
I'm Pablo Picasso." Children believe what their mother tells them because
it comes from love and it's the truth, that they are the most important thing
in the world, that they matter, that they are important. And that's what we
carry with us as adults, because no matter how hard the world gets, no
matter how much they beat us up, no matter what happens, we know that
we have value because we are loved. We are loved by our mother, and we
are worthy.
23(Id. at 24). Defense counsel objected to Plaintiffs’ Golden Rule argument and requested
a mistrial. The Court overruled the objection.
These Golden Rule arguments made it impossible for the jury to fairly and
dispassionately weigh the evidence.
4. Disparaging the Defense, Suggesting PGH Made Up a Defense
and Arguing that Records Were Destroyed or Altered: Plaintiffs' counsel disparaged
defense counsel, defense witnesses, and PGH's theory of the case. Counsel repeatedly,
and without evidence suggested that defense counsel did not produce necessary
evidence (including the complete medical record and audit trails) and did not preserve the
placenta. They also suggested that the defense was "made up."
Counsel argued, with no basis that although Dr. Zafron testified that he did not
have an opinion about the ultrasound,
He's got an opinion, okay? You just ain't going to hear it from him. And the
reason you're not hearing it is because Plantation General doesn't want you
to hear his opinion.
(Id. at 20). Defendant objected, but the Court just indicated that what the lawyers say is
not evidence. (Id. at 20).
Counsel suggested that Nurse DeAmbrosia: went back:
Went back and talked to nurses and got the story. And she got her story
straight, and before she told her story to the medical examiner that we saw
in the death investigation, what did she figure out by looking at those labor
and delivery records? Well, whatever she looked at, may have looked at
something different than what we've looked at.
(Id. at 19).
7 This comment was also improper because it had nothing to do with the evidence in the
case and it was inflammatory.
24Along the same lines, counsel argued:
And the great Martin Luther King also said, "The ultimate measure of a
man," and mom, "is not where he stands in times of convenience and
comfort. The ultimate measure of a man," or woman, "is where he stands in
times of controversy and times of challenge,” because that's where you
know what people are made of. And where did Dr. Edouard stand in this
case in times of controversy and challenge? He ran to go alter his medical
records.
When he was going to be held to task and held accountable, he ran to
change, to alter, to hide.
Why? To avoid responsibility in this case.
(Id. at 25-26).8
This improper theme continued:
And how did this hospital act in the times of challenge and controversy?
Well, they didn't hold themselves accountable. They ran and hired a team
of lawyers to go put up a defense. And before the autopsy report was even
in its—printed, they already had their plan in place. How are we going to
avoid responsibility in this case? And make no—they knew there was a
placental abruption. The doctor they hired to do the autopsy in this case
soft-pedaled it, and she soft-pedaled that report because she talked to the
risk manager, the risk manager in charge of reducing risk, because that's
who they assigned the case to.
They assigned it—they didn't even assign it to like, you know, head of
patient safety, head of how do we make our hospital better. No, they
assigned it to the person called the risk manager. We need to minimize our
risk. And you know what risk means to them? It means money. So they
assigned it to the risk manager, okay?
(Id. at 26).
How are we going to get around and explain that there was a placental
abruption? Let's go hire this expert.
(Id. at 27).
Counsel argued PGH was withholding evidence:
8 References to Martin Luther King, were improper regardless of what context they were
offered in.
25The doctor told us—Dr. Price said she called him to give him a preliminary
verbal. | didn't get a preliminary verbal. The family didn't get a preliminary
verbal. The family didn't even get the report. The family didn't even get
photos. Five years to get the photographs of Mai, of his love, of—it's Mai's
pictures. It's Mai's medical records, and they wouldn't hand them over. If
they wanted the truth, they would have given this family those photographs
day one. If they wanted the truth, they would have hired an autopsy doctor
who did her job. One that—I'm an impartial.
She works for the hospital, and she did the hospital's bidding in this case.
And granted, they kept evidence from her. They didn't give her what she
needed. Now, let me go back to those five years of getting those pictures,
times of controversy and challenge, taking—not turning over the evidence,
five years, since 2013, letter writing.
Give me the photographs, nope. Letter, give me the photographs, nope.
Subpoenas for depositions, give me the photographs, nope. Set up a
meeting with a doctor, same day of the deposition, met with her for over an
hour. | wasn't invited to that meeting. / didn't get to hear the secret
meeting, and Dr. Price showed the photographs, told him what she saw.
And then all of a sudden it's like, huh, cancel that deposition. We need time.
Let's scramble.
Hopefully, she won't depose you—hopefully, she just won't set you for
deposition again. That's why they canceled the depo, because they
didn't want me to hear what she had to say. They didn't want me to have
those pictures, like, oh, jeez, let's cancel this right now.
I'm sitting there from Orlando waiting to take her depo to find out what
happened to Mai, to give me the photographs. And then, she's under court
order to appear, until the lawyers told her, get out of here.
Why? Why? Times of challenge and controversy define a man, and this
hospital in times of challenge and controversy decided to not hand
over evidence, decided to not tell the story, decided to keep it from the
family. Why? Why? Why? Because they did not want to be held
accountable.
(Id. at 28-29) (emphasis added).
Later, counsel returned to the issue of alleged altered records, stating:
At the end of the day, [Dr. Edouard] altered records, and he did some bad
stuff.
(Id. at 48).
26And by the way, his original records for this delivery aren't in there. Those
got canned. Why not? Because [Dr. Edouard] altered them, and he couldn't
keep the originals in there.
(Id. at 50).
And this seems to be the overwhelming theme in this case by the defense
and the hospital, not giving their experts what they need, not giving them
what they need to render the opinion in this case. And the hospital didn't
give Dr. Price what she needed, and we know that Doctor—but at the end
of the day, we know that Dr. Price soft-pedaled that report.
(Id. at 71).
So what other made-up legal defense do we hear in this case?
(Id. at 93) (objection sustained).
Counsel's baseless comments suggesting that PGH hid evidence or made-up facts
or a defense, require a fair trial. See, e.g., SDG Dadeland Assocs., Inc. v. Anthony, 979
So. 2d 997, 1001 (Fla. 3d DCA 2008) (absent of evidence that defendant or its counsel
hid evidence or acted improperly, any argument by plaintiffs counsel implying that
defense counsel was hiding evidence was both egregious and prejudicial to the defense);
see also Allstate Ins. Co. v. Marotta, 125 So. 3d 956, 960-61 (Fla. 4th DCA 2013)
(comments that the defendant "made up issues" and "manufacture[d]" a defense
improperly denigrated defense counsel requiring new trial); Chin v. Caiaffa, 42 So. 3d
300, 309 (Fla. 3d DCA 2010) (plaintiff counsel's closing argument painting the entire
defense as "frivolous" designed to add "insult to injury" constituted reversible error);
Sanchez v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007) (argument that defense
counsel was “pulling a fast one," 'hiding something,’ and ‘trying to pull something,’ was
tantamount to calling defense counsel liars and accusing them of perpetrating a fraud
upon the court and jury,” requiring a new trial).
27Likewise, comments disparaging the defense also deprives a defendant of a fair
trial. See State Farm Mut. Auto Ins. Co. v. Thorne, 110 So. 3d 66, 74-75 (Fla. 2d DCA
2013) (plaintiffs closing argument that defendant's evidence and argument was an
attempt to avoid responsibility and was shameful, constituted reversible error); Carnival
Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737-38 (Fla. 3d DCA 1989) (ordering a
new trial due to comments made by the plaintiffs’ counsel disparaging the manner in
which Carnival defended the action)
5. Suggesting PGH put profits over patient safety: Echoing their
theme that began in opening, Plaintiffs’ counsel repeatedly argued that PGH put profits
over safety. The only purpose for such arguments was to inflame the jury.
For example, counsel argued that Mai Nguyen died and "this little one, Kaden
Nyugen, is brain damaged" because [PGH] made a decision to make money." (Id. at 4).
Counsel argued they "made the decision to play fast and loose with Mai Nyugen,” "to take
risks," to put money before patient safety" (Id. at 4, 5). "The number one priority ... is to
turn a profit.” (Id. at 6). Counsel later told the jury that had PGH "kept it in that order,
service first, patient safety first, in that order and profit second, they can still be successful.
Profits—patient safety and profits are not mutually exclusive." (Id. at 13).
Later counsel told the jury:
But it was a business plan they put on place. It was about making money,
and Mai was a statistic. Mai was a casualty at that, and that's a decision
they made.
(Id. at 76).
6. Improperly characterizing the relationship between PGH and
the doctors and using that characterization to inflame the jury: Despite the lack of
evidence, counsel repeatedly argued that PGH and Dr. Edouard were business partners
28"who came together for a common purpose." (Id. at 6). "Their plan was to make money
off of delivering kids." (Id. at 6). "And they can't avoid responsibility when they're that held
him out as their own." (Id. at 8). And then in a blatant attempt to inflame the jury, counsel
argued that "they phoned on the safety, the well-being, the life, phoned it in, give her the
Cytotec... they can't pawn that off on Dr. Edouard" (Id. at 9).
Continuing to build on their patient over profit theme, counsel further argued that
"they're just in the business of delivering babies. That's what they sell...and that's the way
the business plan works. (Id. at 7). "The more patients they get in, in a year, the more
babies you deliver in a year, the more money this company makes, and the more money
Dr. Edouard makes. That's why they're partners." (Id. at 10). "The hospital and Dr.
Edouard were partners in this catastrophe.” (Id. at 11).
7. Other Inflammatory comments: There were other instances
beyond those cited above, where counsel made inflammatory comments. For example,
counsel stated:
Shame on you Dr. Edouard. And shame on you, Plantation Hospital for
wrapping your arms around him ...
(Id. at 23).
Because look at the evidence in this case, seven years after they caused
the death of Mai, seven years after they brain damaged this little boy and
[Dr. Edouard’s] still on their staff. [PGH’s] still wrapping [its] arms around Dr.
Edouard. It's okay. You know why? Because no one has been held
accountable. That’s why he’s still there.
Counsel also invoked religion arguing:
Children are valued because we are worthy. And we are because—and
children are because they are children of God.
(Id. at 25). Counsel's objection was overruled.
29Counsel invoked the names of Martin Luther King and Muhammed Ali. (Id. at 24,
25, 40-41) (objection).
Referring to Dr. Price, counsel argued:
The hospital refers patients to her. You know, a dead person is not going to
tefer another dead person to you. That's how she makes her money from
hospitals repeatedly referring patients to her for an autopsy.
(Id. at
Preview
Filing # 95984353 E-Filed 09/19/2019 02:25:57 PM IN THE CIRCUIT COURT OF THE 17 JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA. CASE NO: CACE14014218 (04) SEAN DOMNICK, as Guardian Ad Litem for the minors, KYLIE NGUYEN and KADEN NGUYEN, KHAI NGUYEN, individually and as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased, and on behalf of KRISTEN HUYNH, KYLIE NGUYEN, the surviving children of MAl TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor, Plaintiffs, vs. PLANTATION GENERAL HOSPITAL, L.P., d/bfa PLANTATION GENERAL HOSPITAL; ALEX BIRMAN, M.D.; SUNLIFE OB/GYN SERVICES OF FORT LAUDERDALE, P.A.; GEORGES EDOUARD, M.D.; GEORGES EDOUARD, M.D., P.A., d/b/a PLANTATION PAVILION OB/GYN; MELISSA MACHAN, ARNP; ROBERTA SANTINI, M.D.; DORI RATHBUN; FLORIDA UNITED RADIOLOGY, L.C., Defendants. / DEFENDANT, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION GENERAL HOSPITAL'S MOTION FOR JUDGMENT IN ACCORDANCE WITH MOTIONS FOR DIRECTED VERDICT AND ALTERNATIVE MOTION FOR NEW TRIAL! COMES NOW, Defendant, PLANTATION GENERAL HOSPITAL, L.P.A d/b/a PLANTATION GENERAL HOSPITAL, (PGH) pursuant to Florida Rules of Civil Procedure 1.480 and 1.530, and moves this Court for the following relief: (1) entry of a judgment in 1 PGH has separately filed a Motion requesting a hearing on its post-trial motions. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/19/2019 02:25:56 PM.****accordance with Defendant's Motions for Directed Verdict; and (2) alternatively, for a new trial on all issues.2 In support, PGH would show: 1. This is a Medical Malpractice/Wrongful death case by SEAN DOMNICK, as Guardian Ad Litem for the minors, KYLIE NGUYEN and KADEN NGUYEN, KHAI NGUYEN, individually and as Personal Representative of the Estate of MAl TUYET NGUYEN, deceased, and on behalf of KRISTEN HUYNH, KYLIE NGUYEN, the surviving children of MAl TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor and against PLANTATION GENERAL HOSPITAL, L.P., d/b/a PLANTATION GENERAL HOSPITAL (hereinafter PGH). 2. Plaintiff alleges PGH was negligent regarding the care and treatment of Mai Tuyet Nguyen and that its negligence caused her death as well as injuries to her son, Kaden Nguyen. 3. The case was tried before a jury between August 12, 2019 through September 4, 2019. 4. The jury returned its verdict on September 4, 2019 finding that PGH was negligent and that negligence was a legal cause of the death of Mai Tuyet Nguyen and for injuries to Kaden Nguyen. The jury apportioned liability as follows: Plantation General Hospital 98% George Edouard, MD 1% Roberta Santini, MD 1% 2 PGH has separately filed a Motion for Set Off and Motion to Reduce Judgment pursuant to section 766.118(6), Florida Statutes. By filing this motion, PGH does not waive its rights as set forth in those motions.5. The jury found that Dr. Edouard was an agent of and in a partnership with Plantation General Hospital. 6. The jury found that Dr. Santini was an agent of and in partnership with Plantation General Hospital. 7. The jury awarded damages as follows: Kristin Huynh-loss of support $ 46,000 Kristen Huynh- pain and suffering $ 5,000,000 Kylie Nguyen-loss of support $ 112,000 Kylie Nguyen-pain and suffering $ 5,000,000 Kaden Nguyen-loss of support $ 158,000 Kaden Nguyen-pain and suffering $ 5,000,000 Kaden Nguyen-past/future medical expenses $ 1,400,000 Kaden Nguyen-loss of earning capacity $ 500,000 Kaden Nguyen-pain and suffering $ 1,000,000 TOTAL $ 18,216,000 8. Pursuant to Florida Rule of Civil Procedure 1.480, PGH moves to set aside the verdict and any judgment thereon and to enter judgment in accordance with its Motions for Directed Verdict. 9. Alternatively, pursuant to Florida Rule of Civil Procedure 1.530, PGH moves for a new trial on all issues. MOTION FOR JUDGMENT IN ACCORDANCE WITH MOTIONS FOR DIRECTED VERDICT PGH is entitled to judgment in its favor for the following reasons: 1. PGH adopts its oral and written Motions for Directed Verdict and Summary Judgment and arguments made at the hearings on those motions. For the reasons stated in those motions, judgment should be entered in favor of PGH. 2. There is no legal or competent evidence on the issues of fact raised by the pleadings from which the jury could legally render a verdict in Plaintiffs’ favor.3. The testimony presented by Plaintiffs was speculative and inadmissible. A verdict cannot be based on speculation. Absent this speculative testimony, Plaintiffs failed to establish breach of a duty which was a legal cause of the death of Mai Tuyet Nguyen or injury to Kaden Nguyen. 4. There is no evidence that PGH was responsible for the actions of Dr. Edouard or Dr. Santini. 5. PGH did not owe a nondelegable duty to Plaintiffs. 6. There is no evidence, or the evidence is insufficient, to support the jury's findings that Dr. Edouard or Dr. Santini were actual or apparent agents of PGH, or in a partnership. The evidence affirmatively establishes that Dr. Edouard or Dr. Santini were not actual or apparent agents and were not in a partnership with PGH. 7. Actual agency exists where a principal authorizes another to act on his or her behalf. See Fla. Std. Jury Instr. (Civ.) 402.9. 8. Apparent agency exists only if each of the three elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation. Mobil Oil Corp. v. Bransford, 648 So. 2d 119 (Fla. 1995); see also Fla. Std. Jury Instr. (Civ.) 402.9. 9. There was no evidence from which the jury could find an actual or apparent agency relationship as to Dr. Edouard. The evidence established that Dr. Edouard was in private practice and delivered Mai Tuyet Nguyen's first child, as well as her second child. Mai Tuyet Nguyen saw Dr. Edouard at his private office which was located in an officebuilding that was not affiliated with Plantation General Hospital and then he sent her to Plantation General Hospital for induction of labor. 10. There was no evidence from which the jury could find an actual or apparent agency relationship as to Dr. Santini. See Fla. Std. Jury Instr. 402.9. The evidence established that Dr. Santini was an employee of Florida United Radiology, L.C. when she read the ultrasound in question. 11. The law is clear that the granting of staff privileges to a physician by a hospital to a particular healthcare provider, without more, is insufficient as a matter of law to create jury questions on whether the hospital impliedly represented to the public that the healthcare provider was the hospital's apparent agent. Stone v. Palms West Hosp., 941 So. 2d 514 (Fla. 4th DCA 2006); see also, Liberatore v. N.M.E. Hosps., Inc., 711 So. 2d 1364 (Fla. 4th DCA 1998) ("As a general rule, hospitals are not vicariously liable for negligence of a physician on its staff’) (citation omitted). In Quesada v. Mercy Hospital Inc., 41 So. 3d 930 (Fla. 3d DCA 2010), the court held that an affidavit submitted by the plaintiff in which he stated that he did not select the surgeon involved in the case, but rather accepted that person provided by the hospital and that it was his impression that the surgeon was a hospital employee, were insufficient to create genuine issues of material fact as to whether or not the surgeon was an apparent agent of the hospital. Id. at 931. 12. Further, a partnership exists when two or more persons join together or agree to join together in a business or venture for their common benefit, each contributing property, money or services and each having an interest in any profits. See also Fla. Std. Jury Instr. (Civ.) 401.14d.13. There is no evidence in the record to support a finding that PGH and either of these doctors was engaged in a partnership. In fact, the evidence was to the contrary. WHEREFORE, PGH respectfully requests this Court set aside the verdict and enter judgment in its favor, or, at a minimum, find that as a matter of law, that neither Dr. Edouard or Dr. Santini were actual or apparent agents of PGH or were in a partnership with PGH.% MOTION FOR NEW TRIAL* Alternatively, PGH is entitled to a new trial because the verdict as to liability and damages is contrary to the manifest weight of the evidence including, but not limited to its finding of agency and partnership, and its determination that any negligence on the part of PGH was a cause of injury to Kaden. Additionally, the verdict is not supported by competent, substantial evidence and the verdict is contrary to the law. Further, PGH submits that the Court erred and/or abused its discretion with respect to certain evidentiary rulings, resulting in it being deprived of a fair trial. Most significantly, the misconduct of Plaintiffs’ counsel throughout the trial resulted in a verdict that was based on passion and prejudice rather than the evidence. The singular of combined prejudicial effect of these errors warrants a new trial. These will be described more fully below. A. Refusal to Strike Juror Isaac The Court erred and/or abused its discretion in failing to strike Juror Isaac after Defense counsel witnessed her interacting with Kai Nguyen, the personal representative 3 In all events, in their closing, Plaintiffs' counsel conceded that any judgment must be reduced by the percentage of fault allocated to Drs. Edouard and Santini. 4PGH adopts all arguments made before and during trial on the issues set forth herein.of the Estate. Defense counsel brought this to the Court's attention and requested that the juror be stricken. The failure to do so caused unfair prejudice to PGH. Compounding the prejudice, the Court brought juror Isaac into the courtroom and questioned her. Because juror Isaac had made eye contact with defense counsel, it was apparent that she knew that the defense attorneys informed the Court of the interaction. This served to further prejudice PGH because the juror may well have been hostile to PGH for reporting her to the Court. There were alternates available that could have taken her place and the case could have proceeded. B. Improprieties in Opening Statement The Court erred and/or abused its discretion in overruling PGH's objections and denying PGH's motion for mistrial made during Plaintiffs' opening statement. The purpose of opening statement is for counsel to tell the jury what they believe the evidence will show and not to argue the evidence. Here, the opening was repetitive, argumentative and inflammatory. As one example, instead of focusing on the issue to be tried—whether PGH's conduct fell below the standard of care—Plaintiffs' counsel repeatedly argued that PGH put profits over patient care. Emboldened by the Court's denial of PGH's motion for mistrial, this became a theme of Plaintiffs‘ case, and became a theme in closing argument. Counsel also improperly argued that PGH perpetrated a coverup by not producing evidence and counsel tried to blame prior defense counsel. This was highly inflammatory and improper.c. Undisclosed Opinion Testimony The Court erred and/or abused its discretion in admitting opinion testimony from expert witnesses whose opinions were not previously disclosed. The law is well settled that a party may not conduct trial by ambush. Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981). Indeed, this Plaintiffs' counsel has had a verdict overturned on this basis. See Doctors Co. v. Plummer, 210 So. 3d 711, 718 (Fla. 5th DCA 2017) (court applied Binger and concluded the trial court erred in admitting surprise expert testimony that prejudiced defendant). See also Perryman v. Crawford, 968 So. 2d 83, 85 (Fla. 4th DCA 2007) (affirming new trial order for plaintiff where defendant's expert presented medical opinion testimony that had not been previously disclosed). At trial, over objection, Plaintiffs expert, Dr. Silverstein was allowed to express Opinions, which Plaintiffs conceded were new and previously undisclosed. Specifically, Dr. Silverstein told the jury that he did not have all of the audit trails, and therefore, the medical records were unreliable and “corrupted.” This was the first time this issue was every raised by Dr. Silverstein or anyone else. This new opinion allowed Plaintiffs to argue that the defense was “made up,” and that it was relying on a record that could not be trusted. This served to undermine the credibility of the defense. D. Plaintiffs‘ Counsel's Misconduct From the commencement of the trial, Plaintiffs' counsel, Maria Tejedor and Carlos Diez Arguelles, engaged in a course of conduct which was improper and highly prejudicial. As referenced supra, it began in opening, and, as discussed infra, it continued all the way through closing.Counsel repeatedly spoke too loudly to each other while in close proximity to the jury while PGH counsel was cross-examining witnesses, and at sidebars. Counsel engaged in repeated, disruptive and improper speaking objections. Counsel used leading questions such that counsel was in effect testifying rather than the witness. Counsel made editorial comments before asking questions and routinely interrupted witnesses while they were trying to respond. PGH's counsel objected to this type of conduct on multiple occasions and moved for a mistrial based on this highly egregious conduct, but that motion was denied. Counsel’s conduct continued, forcing the defense to continually assert objections resulting in unfair prejudice to PGH. In short, counsel's overall conduct in the courtroom conduct deprived PGH of its right to a fair trial and deprived the jury of a calm and considerate atmosphere in which to determine its verdict. In addition, the trial was tainted by the following improprieties: 1. Improper comments during the testimony of defense expert, Chalhub: Counsel's conduct was particularly egregious during the cross examination of defense expert, Dr. Chalhub. (A copy of Dr. Chalhub's cross examination is attached as Exhibit A). Counsel repeatedly asked improper questions and made improper comments which led to PGH's counsel moving for a mistrial (Id. at 65). The examination included the following: (a) Improper attacks on the expert: Counsel made improper comments attacking Dr. Chalhub including: Q: Okay Doctor, first of all, | would never have you review a case for me, even. A: I know, but you did— Q: Ever?—Ms. Tejedor. Doctor, let's make this clear, | would never have you review a case for a cat. A: Well, you need to look at your records, because— The Court: next question Ms. Tejedor: That's wishful thinking. (Exhibit A at 18) (emphasis added). Q: You can keep making things up during your depo, during your testimony? A: Ms. Tejador, I'm under oath. (Id. at 20). Q: No, you don't get—you see, here's the good thing about this. This is called cross exam. Okay. You've done this before. In fact, you've done it for almost as long as | have been alive. So, here is the way it goes. | ask the questions and you answer. (Id. at 27). Q. Who's confused now? You are. (Id. at 121). (b) Repeated interruptions: Ms. Tejedor repeatedly interrupted Dr. Chalhub thereby preventing him from completely answering the questions. In fact, Dr. Chalhub asked if he could answer the question and Plaintiffs’ counsel refused to allow him to finish. Examples of this conduct include: Witness: May | explain it? Yes. 10(Id. at 29). A: Q A: Q (Id. at 39). Q: A Q A | don't know need an explanation. You know, | don't have any problem with that. He just— No, no, no. Wait a minute. Here's my question. My question is: Do you know that he is a licensed physician licensed to practice medicine in the state of Florida? I'm not asking you about the training. Wait listen. I'm not asking you about the training. Listen Mrs. Tejedor, you are credentialed to do that. Mr. LaCava: He's in the middle of answering that question. Ms. Tejedor: I'm not asking— The Court: Excuse Me. Ms. Tejedor: It's a simple question. (Id. at 43). A: 2 >. 9 > Oe Well wait a minute. Perinatal asphyxia can cause hypotonia, correct? Yes, but | need to explain that. Okay. Let me ask you this question: You would agree that this little boy was hypotonic after he was born? He was. He was diagnosed with hypotonia at Joe DiMaggio, correct? Correct but that's— And ten months later... 11(Id. at 55). See also Id. at 7. (c) | Comments on Socio-Economic Disparity: When discussing the Early Steps Program with Dr. Chalhub, Plaintiffs’ counsel told the jury that the program was for "kids who aren't rich.” (Id. at 60). This was clearly irrelevant and only served to create sympathy for Plaintiffs based on their economic status. (d) Improper racial comments: During cross examination, Ms. Tejedor told the jury that Dr. Chalhub had another case in which he examined an "African American" client and claimed she was not brain damaged. (Id. at 158). Again, the comment was totally irrelevant and could only serve to inflame the jury. 2. Improper Use of Funeral Photograph: In complete disregard of the Court's ruling, that Plaintiff could not show the jury a photograph of Mai Tuyet Nguyen in a casket, Plaintiff counsel displayed the photograph on the screens so the jury could see the prejudicial photograph. Defendant's motion for mistrial was denied. E. Rulings with Respect to Plaintiffs’ Experts and Evidence The Court erred or abused its discretion with respect to its ruling as to Plaintiffs’ experts and evidence including the following: 1. Dr. Lichtblau: The Court erred and/or abused its discretion in allowing Plaintiffs' expert, Dr. Lichtblau to talk about Kaden's 2019 school records when precluding defense expert, Dr. Chalhub from talking about it. 2. Dr. Gubernick: First, the Court erred or abused its discretion in allowing Dr. Gubernick, Plaintiffs’ OB/GYN expert to testify as to nursing standard of care in contravention of Florida law. Second, Dr. Gubernick continuously utilized an improper 12standard of care by testifying about "safe care” rather than the legal definition. Third, Dr. Gubemick's trial testimony was split up with a week in between the initial direct, the completed direct and cross examination. On the second day, Plaintiff rehashed practically every question, answer and opinion which overemphasized Plaintiffs’ theory of the case and was therefore unfairly prejudicial to the defense. Fourth, in his testimony, he acted as an advocate, rather than an expert, continually using inflammatory phrases to describe the care that was rendered and put PGH in a negative light. 3. Nurse MahIimeister: The Court erred or abused its discretion in allowing Plaintiffs nursing expert, Mahlmeister to testify regarding causation and specifically that the breach of the standard of care caused Mai Tuyet Nguyen's death and Kaden's injuries. The Court allowed Plaintiffs’ attorneys to tag team, one attorney performed the direct examination while the other redirected the witness. Further the Court allowed repeated leading questions. 4. Dr. Miranda: Prior to trial, PGH filed a Daubert motion directed to the use of qualitative EEG studies, which the many courts had found to be inadmissible. The Court denied that motion. Thereafter, Plaintiffs did not call Dr. Miranda as a witness, nor was his deposition transcript read to the jury. Yet, the Court allowed the jury to hear about the qualitative EEG and impermissibly used it to show that Kayden Nguyen "may develop seizures" in the future and that he has brain damage. The Court also abused its discretion in denying PGH’s motion to strike Dr. Miranda's records because his conclusions in those records was based on the unreliable, unscientific qualitative EEG studies. 5. References to prior defense counsel's actions: Counsel referred to the actions of prior defense counsel during the litigation including his failure to produce 13autopsy photographs, canceling Dr. Price's deposition at the last minute after Plaintiffs’ counsel drove from Orlando Florida and was sitting in the next room, failing to produce a complete medical chart and audit trail and discarding the placenta without photographing it or producing it to Dr. Price for examination. This allowed Plaintiffs to suggest to the jury that there was a cover-up to prevent the family from finding out what "really" happened. 6. Improper use of depositions: Witnesses, including expert witnesses, were permitted to testify about the content of other witnesses' depositions. This resulted in the experts serving as a conduit for inadmissible evidence. For example, counsel improperly used Dr. Edouard's deposition. Counsel also made comments about witnesses' testimony even though the witness had not testified (e.g. Dori Rathburn). 7. Hearsay from Mr. Nyugen: The court allowed hearsay testimony from Mr. Nyugen regarding agency issues. F. Improper_Comments Suggesting PGH Was _ Hiding, Altering Or Destroying Evidence There was no claim for spoliation of evidence pled in this case and there was no evidence in the record to support a claim that any evidence had been altered, destroyed or not properly preserved. Despite this, throughout the trial, Plaintiffs created the impression that PGH was hiding evidence, altering evidence and even destroying evidence. First, over objection, Plaintiffs suggested that PGH did not produce complete audit trails for May Tuyet Nguyen, even though there was never any evidence that anything was missing prior to the trial. Plaintiffs showed the jury prior counsel's response to a request for production enclosing the audit trails. Plaintiffs then had their expert, Silverstein 14tell the jury that there were other audit trails that should have been produced.® In fact, however, Plaintiff never made any attempt during the litigation to obtain any additional audit trails from the hospital. There was no evidence PGH was hiding any audit trails. In short, there was no evidence that PGH destroyed any audit trails. Second, Plaintiffs impermissibly suggested that PGH altered Dr. Edouard's record of the last pre-natal office visit. Several times, Plaintiffs’ counsel told the jury that her “office received records from Dr. Edouard's office" and those records were different than the records in the original chart and were different than the records in the Plantation General Hospital chart. In fact, however, there was no evidence to support that the record plaintiff said was "altered" came from Dr. Edouard's office. Plaintiffs argued that Dr. Edouard "destroyed" the original notes from his office visits with Mai Nguyen because they were "photocopies." There was no evidence to support this statement. Third, Plaintiffs suggested that the placenta should have been preserved, and suggested that PGH acted improperly by failing to do so. Plaintiffs made this argument, in an attempt to support their unsupported claim that PGH was hiding evidence. This argument was being made in spite of their own experts’ admission that sending the placenta to the laboratory where it was described appropriately and sectioned appropriately is what is typically done in every hospital around the country. G. Rulings with Respect to Defense Experts and Evidence The Court erred and/or abused its discretion by: 1. Allowing evidence of income that defense expert, Elias Chalhub earned throughout his career through his expert consulting or expert witness work, as 5 As set forth above, not only was this factually unsupported, but it was a new opinion. 15impeachment evidence when the proper method of impeachment does not allow this type of information. (Exhibit A at 13-17, 25). 2. Allowing Plaintiff to ask Dr. Chalhub about the number of licensed Florida neurologists (Id. at 47- 48, 62-64) which allowed the jury to infer that the hospital had to go "out of state" to retain an expert. 3. Refusing to allow Dr. Chalhub to testify regarding school records he received after his deposition even though there was no change in opinion. 4. Allowing Plaintiffs’ counsel to question Dr. Chalhub about his examination about another of Plaintiffs’ counsel's clients and comparing the examinations. 5. The Court erred in excluding Dr. Price's autopsy report, concluding in error as it was "an expert report." Dr. Price was hired by the Nguyen family and could not afford to pay for the autopsy. PGH paid Dr. Price for the autopsy. Dr. Price testified that she performed an independent autopsy. However, because PGH paid Dr. Price, the Court improperly excluded the autopsy report. H. Improper References to Agency Relationship As set forth above, the Court erred in allowing the jury to consider an alleged agency or partnership relationship between PGH and Drs. Edouard and Santini. Once it allowed those claims to proceed, the jury was allowed to consider the acts of these doctors as a basis for imposing liability on PGH. The unfair prejudice on this issue was compounded by the fact that in closing, Plaintiffs focused extensively on the alleged agency relationship as the basis to impose liability on PGH. For example, counsel focused on the issue of informed consent which was an issue that only related to Dr. Edouard. The issue was further confused by the fact that the jury was then asked to consider 16and allocate fault to the doctors. PGH was prejudiced because the jury was led to believe that PGH was responsible for their actions. IL Damages The court erred and/or abused its discretion in the following rulings concerning damages: 1. Future Medical Expenses: allowing Plaintiffs to introduce improper and speculative evidence in support of a claim for future medical expenses. Plaintiffs’ evidence and argument on this issue resulted in an impermissible recovery and an overall excessive verdict. 2. Future Lost Earning Ability: allowing Plaintiffs to introduce improper and speculative evidence in support of a claim for future lost earning ability. Plaintiffs' evidence and argument on this issue resulted in an impermissible recovery and an overall excessive verdict. J. Errors with Respect to Jury Instructions As it relates to jury instructions, the court erred with respect to the following: 1. instructing the jury on Mai Tuyet Nguyen's negligence, even though it was not asserted by the defense. 2. Instructing on non-delegable duty, 3. instructing the jury regarding vicarious liability/agency, 4. Denying PGH's requested jury instructions, 5. Granting Plaintiffs’ requested jury instructions. K. Improper Comments During Closing Arguments The purpose of closing argument is to assist the jury with its application of the law that the judge has given to the facts of the case. Harrison v. Gregory, 221 So. 3d 1273, 171274 (Fla. 5th DCA 2017) (citing Murphy v. Int'l Robotic Sys., Inc., 76 So. 2d 1028 (Fla. 2000)). While attorneys should be afforded great latitude in presenting closing argument, they must "confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence." R.J. Reynolds Tobacco Co. v. Robinson, 216 So. 3d 674, 681 (Fla. 1st DCA 2017) (citation omitted); Knoizen v Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998) (same). Attorneys are governed by the Rules Regulating the Florida Bar. Rule 4-3.4. states: A lawyer shall not... in trial, allude to any mater that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testify as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. City of Orlando v. Pineiro, 66 So.3d 1064, 1069 (Fla. 5th DCA 2011) (quoting R. Regulating Fla. Bar 4-3.4(e)). This rule not only prevents lawyers from placing their own credibility at issue in a case, it also limits the possibility that the jury may decide a case based on non-record evidence. See Davis v. S. Fla. Water Mgt. Dist., 715 So. 2d 996, 999 (Fla. 4th DCA 1998); Forman v. Wallshein, 671 So. 2d 872, 875 (Fla. 3d DCA 1996). It helps ensure that juries render verdicts based on record evidence and applicable law, and not on impermissible matters interjected by counsel during closing argument. Murphy, 766 So. 2d at 1028. Moreover, closing argument must not be used to "inflame the minds and passions of the jurors so that their verdict reflects an emotional response. ... rather than the logical analysis of the evidence in light of the applicable law.” Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985). 18In direct and repeated contravention of the rules of professional conduct and Florida law, Plaintiffs’ counsel's misconduct culminated in a closing argument replete with highly improper, prejudicial and inflammatory comments. (Plaintiffs’ closing argument is attached as Exhibit B). Over repeated objections by PGH, Plaintiffs’ counsel's closing argument was fraught with comments that were improper, highly prejudicial, and highly inflammatory. PGH's motion for mistrial was denied. Some of these comments were blatant and express, others were subtle and implied. They all had the effect of denying PGH a fair trial. Viewed individually, Plaintiffs' counsel's comments were so fundamentally improper as to require a new trial in this matter. Certainly, when considered collectively, and along with the numerous other instances of misconduct and grounds for mistrial, the cumulative effect was to deny PGH of a fair trial, mandating that a new trial be granted. Al Appeals to the Jury's Sympathy: Counsel repeatedly urged the jury to use its power to reach a verdict based on emotion and sympathy. For example, counsel argued: Kids have—kids have challenges that aren't brain damaged. Imagine going through life with a brain injury, and Here's what the biggest challenge is going to be for this little boy. He can't wear a sign on his chest that says, you know, I'm brain damaged. I'm sorry that | can't behave. I'm sorry that I'm making bad decisions. I'm sorry that I can't learn. Society is going to hold him to task like somebody who doesn't have brain damage. And our prison system is filled with kids who can't learn, filled with kids with low IQs, filled with kids that were just left in the system and didn't have an opportunity— (Exhibit B at 41-42). ® This is also an improper conscience of the community argument. An objection was sustained on that basis. 19Additionally, Plaintiff argued that because Mai Tuyet Nguyen was not there to protect Kristen, she was abused. (Id. at 55). 2. Comments Asking the Jury to Act as The Conscience of the Community And Send A Message: Counsel made highly inflammatory remarks that were designed to have the jury become the conscience of the community with the moral obligation to punish PGH. These arguments include, but are not limited to, reminders that the jury had the power and moral obligation to correct injustices visited on Plaintiffs. Plaintiffs repeated told the jury to make PGH accountable for its actions rather than compensate the family which is in direct contradiction to Florida law. For example, counsel argued: | have not had the ability to bring them to justice, to hold them accountable. We all have a purpose in life. We all do, and our purpose is to use the gifts and the talents that we're given for the greater good, to serve one another, because there is no greater joy in life than service. No greater joy in life, and we serve every day in our Jobs. Doesn't matter if we get paid for it. The number one priority is service, service to one another. You know, when | was 18, the most important mentor of my life told me one time, he said, whatever path you choose, whatever career you use in life, to use your talents and your gifts that were given to you, whatever one you choose, you choose whichever one you think is best, whichever one you're inspired to do, but whichever one you choose, you do — you first and foremost do things right, and you do things right to serve one another. And don't worry about success and don't worry about the money, because when you do things right in life, when you do them right, everything else will come and everything will be okay. Somebody should have told Plantation General Hospital that, because had they made patients’ safety— (Id. at 11-12). PGH's objection was overruled. Counsel continued with this theme: But today, members of the jury, that is your Purpose. That is your purpose. You know, you were called almost four weeks ago, and you, with courage and conviction, accepted. And you showed up to jury duty, and with courage 20and conviction, we didn't hear excuses like we did from the hundreds of people as to why they didn't have the courage to be here. And through courage and conviction, you've come here every day, heard the evidence, and it hasn't been easy. And through courage and conviction, you're here today, and your verdict requires courage and conviction. (Id. at 23). You have that awesome power today to hold them accountable through your verdict, through your voice. A verdict for this hospital is silence. (Id. at 29-30) (objection sustained). A verdict for the family in this case will hold this hospital responsible. A verdict for the hospital is silence. And it's only through accountability and responsibility is that we achieve greatness. Winston Churchill said, "The price of greatness is accountability.” That's the price of greatness. (Id. at 30). When Defense counsel objected, the Court instructed counsel to talk about the evidence. Counsel made other similar comments: And silence is returning a verdict of anything less than compensates this family in full for the full measure of their damages. (Id. at 31). And to award anything less than a full measure, full measure of damages, would be not—would be not to render a verdict for this family, would be to be silent. (Id. at 59-60). Counsel asked the jury to award $7 million because that is what "would hold this hospital accountable." (Id. at 59) (after counsel objected, Court asked counsel to rephrase). In their rebuttal closing, counsel told the jury: We want justice. That's what we're asking for, and we're asking for your verdict to speak and not to be silent, and we're asking for justice. 21(Id. at 85). Finally, counsel told the jury: At the close of this case, a verdict for the defense will be silence. This is a time of challenge. And when you go back there, and you deliberate, render a verdict that speaks courage, a verdict that speaks truth, a verdict that brings hope when there is despair, a verdict that brings light to darkness, a verdict that speaks justice. And give this case a voice and return a verdict for this family that says what happened in this case should never have happened, and it's not okay. (Id. at 101). Arguments urging the jury to act as the conscience of the community are highly improper. Stokes v. Wet 'N Wild, Inc., 523 So. 2d 181, 182 (Fla. 5th DCA 1988); see also Superior Indus. Int'l, Inc. v. Faulk, 695 So. 2d 376, 380 (Fla. 5th DCA 1997) ("Appeals to ‘community conscience’ and 'civic responsibility’ are inappropriate."); R.J. Reynolds Tobacco Co. v. Gafney, 188 So. 3d 53, 57 (Fla. 4th DCA 2016) (holding plaintiff may not utilize "send a message" and conscience of the community arguments when used in a way that links the "send a message" to compensatory liability or damages). Counsel's comments warrant a new trial. 3. Improper Golden Rule Arguments: “[A] golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence.” Metro. Dade Cty. v. Zapata, 601 So. 2d 239, 241 (Fla. 3d DCA 1992); Domino's Pizza, LLC v. Wiederhold, 248 So. 3d 212, 228 (Fla. 5th DCA 2018) (reversing for a new trial where plaintiff's attorney made improper golden rule arguments); SDG Dadeland Assocs.., Inc. v. Anthony, 979 So. 2d 997, 1003 (Fla. 3d DCA 2008) (reversing for a new trial, stating that golden rule arguments “strike at the very heart of our justice system”); Bocher v. Glass, 874 So. 2d 701, 703 (Fla. 1st 22DCA 2004) (reversing based on improper golden rule argument, stating “[i]f jurors are to remain fair decision-makers, the trial court must guard against a deliberate act of counsel that serves to put the jury center stage in the drama that should be the trial”). Examples of Golden Rule arguments included the following: Asking the jury "Can you imagine this child?" (Id. at 32). Later, counsel asked the jury to "imagine going through life with a brain injury." (Id. at 41). Counsel also asked the jury: What can we do to make him as whole as we can? What can we do to hold this hospital responsible? (Id. at 43) (emphasis added; objection and motion to strike—no ruling). Although subtle, counsel asked the jury to place themselves in the shoes of the children when she told the jury with regard to pain and suffering: The great Martin Luther King said, "Life begins to end—life begins to end the moment that we are silent on things that matter." Mai Nguyen mattered. Mai Nguyen's life mattered. Kaden, Kylie, and Kristen mattered. She was their life. She was their everything. She was their beginning and their end. She was the reason, like every mother, every good mother, she defines a person—a mother defines your self-esteem, your self-worth, who you are. A mother teaches you how to love. You know, Pablo Picasso once said, you know, "My mother told me, if | was a soldier, I'd be a general. My mother told me, if | was a monk, I'd be a pope. | became a painter, and I'm Pablo Picasso." Children believe what their mother tells them because it comes from love and it's the truth, that they are the most important thing in the world, that they matter, that they are important. And that's what we carry with us as adults, because no matter how hard the world gets, no matter how much they beat us up, no matter what happens, we know that we have value because we are loved. We are loved by our mother, and we are worthy. 23(Id. at 24). Defense counsel objected to Plaintiffs’ Golden Rule argument and requested a mistrial. The Court overruled the objection. These Golden Rule arguments made it impossible for the jury to fairly and dispassionately weigh the evidence. 4. Disparaging the Defense, Suggesting PGH Made Up a Defense and Arguing that Records Were Destroyed or Altered: Plaintiffs' counsel disparaged defense counsel, defense witnesses, and PGH's theory of the case. Counsel repeatedly, and without evidence suggested that defense counsel did not produce necessary evidence (including the complete medical record and audit trails) and did not preserve the placenta. They also suggested that the defense was "made up." Counsel argued, with no basis that although Dr. Zafron testified that he did not have an opinion about the ultrasound, He's got an opinion, okay? You just ain't going to hear it from him. And the reason you're not hearing it is because Plantation General doesn't want you to hear his opinion. (Id. at 20). Defendant objected, but the Court just indicated that what the lawyers say is not evidence. (Id. at 20). Counsel suggested that Nurse DeAmbrosia: went back: Went back and talked to nurses and got the story. And she got her story straight, and before she told her story to the medical examiner that we saw in the death investigation, what did she figure out by looking at those labor and delivery records? Well, whatever she looked at, may have looked at something different than what we've looked at. (Id. at 19). 7 This comment was also improper because it had nothing to do with the evidence in the case and it was inflammatory. 24Along the same lines, counsel argued: And the great Martin Luther King also said, "The ultimate measure of a man," and mom, "is not where he stands in times of convenience and comfort. The ultimate measure of a man," or woman, "is where he stands in times of controversy and times of challenge,” because that's where you know what people are made of. And where did Dr. Edouard stand in this case in times of controversy and challenge? He ran to go alter his medical records. When he was going to be held to task and held accountable, he ran to change, to alter, to hide. Why? To avoid responsibility in this case. (Id. at 25-26).8 This improper theme continued: And how did this hospital act in the times of challenge and controversy? Well, they didn't hold themselves accountable. They ran and hired a team of lawyers to go put up a defense. And before the autopsy report was even in its—printed, they already had their plan in place. How are we going to avoid responsibility in this case? And make no—they knew there was a placental abruption. The doctor they hired to do the autopsy in this case soft-pedaled it, and she soft-pedaled that report because she talked to the risk manager, the risk manager in charge of reducing risk, because that's who they assigned the case to. They assigned it—they didn't even assign it to like, you know, head of patient safety, head of how do we make our hospital better. No, they assigned it to the person called the risk manager. We need to minimize our risk. And you know what risk means to them? It means money. So they assigned it to the risk manager, okay? (Id. at 26). How are we going to get around and explain that there was a placental abruption? Let's go hire this expert. (Id. at 27). Counsel argued PGH was withholding evidence: 8 References to Martin Luther King, were improper regardless of what context they were offered in. 25The doctor told us—Dr. Price said she called him to give him a preliminary verbal. | didn't get a preliminary verbal. The family didn't get a preliminary verbal. The family didn't even get the report. The family didn't even get photos. Five years to get the photographs of Mai, of his love, of—it's Mai's pictures. It's Mai's medical records, and they wouldn't hand them over. If they wanted the truth, they would have given this family those photographs day one. If they wanted the truth, they would have hired an autopsy doctor who did her job. One that—I'm an impartial. She works for the hospital, and she did the hospital's bidding in this case. And granted, they kept evidence from her. They didn't give her what she needed. Now, let me go back to those five years of getting those pictures, times of controversy and challenge, taking—not turning over the evidence, five years, since 2013, letter writing. Give me the photographs, nope. Letter, give me the photographs, nope. Subpoenas for depositions, give me the photographs, nope. Set up a meeting with a doctor, same day of the deposition, met with her for over an hour. | wasn't invited to that meeting. / didn't get to hear the secret meeting, and Dr. Price showed the photographs, told him what she saw. And then all of a sudden it's like, huh, cancel that deposition. We need time. Let's scramble. Hopefully, she won't depose you—hopefully, she just won't set you for deposition again. That's why they canceled the depo, because they didn't want me to hear what she had to say. They didn't want me to have those pictures, like, oh, jeez, let's cancel this right now. I'm sitting there from Orlando waiting to take her depo to find out what happened to Mai, to give me the photographs. And then, she's under court order to appear, until the lawyers told her, get out of here. Why? Why? Times of challenge and controversy define a man, and this hospital in times of challenge and controversy decided to not hand over evidence, decided to not tell the story, decided to keep it from the family. Why? Why? Why? Because they did not want to be held accountable. (Id. at 28-29) (emphasis added). Later, counsel returned to the issue of alleged altered records, stating: At the end of the day, [Dr. Edouard] altered records, and he did some bad stuff. (Id. at 48). 26And by the way, his original records for this delivery aren't in there. Those got canned. Why not? Because [Dr. Edouard] altered them, and he couldn't keep the originals in there. (Id. at 50). And this seems to be the overwhelming theme in this case by the defense and the hospital, not giving their experts what they need, not giving them what they need to render the opinion in this case. And the hospital didn't give Dr. Price what she needed, and we know that Doctor—but at the end of the day, we know that Dr. Price soft-pedaled that report. (Id. at 71). So what other made-up legal defense do we hear in this case? (Id. at 93) (objection sustained). Counsel's baseless comments suggesting that PGH hid evidence or made-up facts or a defense, require a fair trial. See, e.g., SDG Dadeland Assocs., Inc. v. Anthony, 979 So. 2d 997, 1001 (Fla. 3d DCA 2008) (absent of evidence that defendant or its counsel hid evidence or acted improperly, any argument by plaintiffs counsel implying that defense counsel was hiding evidence was both egregious and prejudicial to the defense); see also Allstate Ins. Co. v. Marotta, 125 So. 3d 956, 960-61 (Fla. 4th DCA 2013) (comments that the defendant "made up issues" and "manufacture[d]" a defense improperly denigrated defense counsel requiring new trial); Chin v. Caiaffa, 42 So. 3d 300, 309 (Fla. 3d DCA 2010) (plaintiff counsel's closing argument painting the entire defense as "frivolous" designed to add "insult to injury" constituted reversible error); Sanchez v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007) (argument that defense counsel was “pulling a fast one," 'hiding something,’ and ‘trying to pull something,’ was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury,” requiring a new trial). 27Likewise, comments disparaging the defense also deprives a defendant of a fair trial. See State Farm Mut. Auto Ins. Co. v. Thorne, 110 So. 3d 66, 74-75 (Fla. 2d DCA 2013) (plaintiffs closing argument that defendant's evidence and argument was an attempt to avoid responsibility and was shameful, constituted reversible error); Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737-38 (Fla. 3d DCA 1989) (ordering a new trial due to comments made by the plaintiffs’ counsel disparaging the manner in which Carnival defended the action) 5. Suggesting PGH put profits over patient safety: Echoing their theme that began in opening, Plaintiffs’ counsel repeatedly argued that PGH put profits over safety. The only purpose for such arguments was to inflame the jury. For example, counsel argued that Mai Nguyen died and "this little one, Kaden Nyugen, is brain damaged" because [PGH] made a decision to make money." (Id. at 4). Counsel argued they "made the decision to play fast and loose with Mai Nyugen,” "to take risks," to put money before patient safety" (Id. at 4, 5). "The number one priority ... is to turn a profit.” (Id. at 6). Counsel later told the jury that had PGH "kept it in that order, service first, patient safety first, in that order and profit second, they can still be successful. Profits—patient safety and profits are not mutually exclusive." (Id. at 13). Later counsel told the jury: But it was a business plan they put on place. It was about making money, and Mai was a statistic. Mai was a casualty at that, and that's a decision they made. (Id. at 76). 6. Improperly characterizing the relationship between PGH and the doctors and using that characterization to inflame the jury: Despite the lack of evidence, counsel repeatedly argued that PGH and Dr. Edouard were business partners 28"who came together for a common purpose." (Id. at 6). "Their plan was to make money off of delivering kids." (Id. at 6). "And they can't avoid responsibility when they're that held him out as their own." (Id. at 8). And then in a blatant attempt to inflame the jury, counsel argued that "they phoned on the safety, the well-being, the life, phoned it in, give her the Cytotec... they can't pawn that off on Dr. Edouard" (Id. at 9). Continuing to build on their patient over profit theme, counsel further argued that "they're just in the business of delivering babies. That's what they sell...and that's the way the business plan works. (Id. at 7). "The more patients they get in, in a year, the more babies you deliver in a year, the more money this company makes, and the more money Dr. Edouard makes. That's why they're partners." (Id. at 10). "The hospital and Dr. Edouard were partners in this catastrophe.” (Id. at 11). 7. Other Inflammatory comments: There were other instances beyond those cited above, where counsel made inflammatory comments. For example, counsel stated: Shame on you Dr. Edouard. And shame on you, Plantation Hospital for wrapping your arms around him ... (Id. at 23). Because look at the evidence in this case, seven years after they caused the death of Mai, seven years after they brain damaged this little boy and [Dr. Edouard’s] still on their staff. [PGH’s] still wrapping [its] arms around Dr. Edouard. It's okay. You know why? Because no one has been held accountable. That’s why he’s still there. Counsel also invoked religion arguing: Children are valued because we are worthy. And we are because—and children are because they are children of God. (Id. at 25). Counsel's objection was overruled. 29Counsel invoked the names of Martin Luther King and Muhammed Ali. (Id. at 24, 25, 40-41) (objection). Referring to Dr. Price, counsel argued: The hospital refers patients to her. You know, a dead person is not going to tefer another dead person to you. That's how she makes her money from hospitals repeatedly referring patients to her for an autopsy. (Id. at