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Filing # 70061800 E-Filed 03/30/2018 06:12:50 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR BROWARD
COUNTY, FLORIDA.
CASE NO: CACE14014218 (04)
KHAI NGUYEN, individually, and as
Personal Representative of the Estate
of MAI TUYET NGUYEN, deceased and
on behalf of KRISTEN HUYNH, KYLIE
NGUYEN, KADEN NGUYEN and as the
Natural parent of KADEN NGUYEN, a
Minor,
Plaintiffs,
vs.
PLANTATION GENERAL HOSPITAL, L-P., d/b/a
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.
/
DEFENDANTS, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION
GENERAL HOSPITAL AND DORI RATHBUN, MOTIO. LIMINE TO PRECLUDE
USE OF MEDICAL LITERATURE PUBLISHED AFTER DATE OF INCIDENT
Defendants, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION
GENERAL HOSPITAL and DORI RATHBUN, by and through their undersigned attorneys,
hereby file this Motion in Limine to preclude the use of any publications, articles, guidelines
and/or practice parameters published after the date of this incident in July 2012, used on direct
examination of Plaintiffs’ experts or on cross-examination of defense experts, and in support
La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309
Telephone (754) 301-5060; Facsimile (754) 551-6884
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/30/2018 6:13:04 PM.****CASE NO: CACE14014218 (04)
states as follows:
1. In Florida, the Plaintiff must prove the Defendant’s actions “represented a breach
of the prevailing professional standard of care for that health care provider”. Fla. Stat.
§766.102(1).
2. The Florida Legislature defined “prevailing” professional standard of care as “that
level of care, skill and treatment, which in light of all relevant surrounding circumstances is
recognized as acceptable and appropriate by reasonably prudent similar health care providers”.
3. While the Florida Legislature did not specifically define the term “surrounding
circumstances”, the court must subscribe to such term its “plain and ordinary” meaning. Smith v.
U.S., 508 US 223 (1993); Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000); Webster’s Unabridged
Dictionary 1836 2d ed. (defining “surrounding” as “the things, conditions, circumstances,
influences that surround a given place or person; environments”).
4, While §90.706, Florida Statutes, allows the use of some medical treatises,
guidelines or textual material in cross-examination, the offering party must fully comply with the
pre-requisites of the statute. Myron v. Doctors General Hosptial, Ltd., 704 So. 2d 1083 (Fla. 4°
DCA 1997) (holding a trial court committed reversible error when allowing an expert to be
cross-examined with a medical treatise which had not been deemed authoritative by the witness
or the court). Moreover, material published after the date of incident cannot be used to establish
the requisite standard of care at the time of the incident. Fla. Stat. $90.706 (stating admission
allowed only when the court can find the treatise or guideline authoritative and relevant); see
also, Call v. Tirone, 522 So. 2d 533, 534 (Fla. 3d DCA 1988) (concluding it is error to allow an
La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309
Telephone (754) 301-5060; Facsimile (754) 551-6884CASE NO: CACE14014218 (04)
expert to be cross-examined with medical writing unless the “literature is established to be
reliable authority by the testimony or admission of the witness or . . . by judicial notice”).
5. Presenting evidence concerning guidelines, procedures or articles not in existence
at the time of the incident in question is too remote and should be inadmissible. See Donahue v.
Albertson's, Inc., 472 So. 2d 482 (Fla. 4" DCA 1985)(stating “evidence is remote only when
there is no visible, plain or necessary connection between it and the proposition eventually to be
proved”)(quoting NLRB y. Ed Chandler Ford Inc., 718 Fed. 2d 892, 893 (9" Cir. 1983).
6. In a medical malpractice case, Plaintiff must prove the health care provider
deviated from the appropriate standard of care at the time the injury took place. Gooding v.
Univ. Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984).
7. Any reference to publications written or produced after the date of this incident is
irrelevant. To this end, §90.401, Florida Statutes, provides “relevant evidence is evidence
tending to prove or disprove a material fact”. Here, any reference to publications, articles,
guidelines and/or practice parameters published after the date of this incident or any use of these
publications on cross-examination of defense experts is irrelevant and immaterial to this lawsuit
as the standard of care cited in publications after the date of incident would not have been in
existence at the time of the incident.
8. Further, §90.403, Florida Statutes, states “relevant evidence is inadmissible if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
issues, misleading the jury, or needless presentation of cumulative evidence.” Evidence of
publications, articles, guidelines and/or practice parameters published after the date of this
La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309
Telephone (754) 301-5060; Facsimile (754) 551-6884CASE NO: CACE14014218 (04)
incident if permitted to be made by counsel for the Plaintiff would be prejudicial to the defense
under §90.403, Florida Statutes. Such prejudice could not be cured with a curative instruction.
WHEREFORE, Defendants, PLANTATION GENERAL HOSPITAL, L.P. d/b/a
PLANTATION GENERAL HOSPITAL and DORI RATHBUN, move this Honorable Court for
entry of an order granting Defendants’ Motion in Limine precluding the use of any publications,
articles, guidelines and/or practice parameters published after July 2012.
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing has been
delivered via e-service this 30" day of March, 2018 to all addressees set forth on the attached
Service List.
LA CAVA & JACOBSON, P.A.
Attorneys for Defendants, Plantation General
Hospital and Dori Rathbun
501 E. Kennedy Blvd.; Suite 1250
Tampa, FL 33602
Telephone: 813-209-9611
Facsimile: 813-209-9511
/s/Louis J. La Cava
BY:
LOUIS J. LaCAVA
Fla. Bar No: 507880
WILLIAM V. CARCIOPPOLO
Fla. Bar No: 510051
La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309
Telephone (754) 301-5060; Facsimile (754) 551-6884SERVICE LIST
Maria D. Tejedor, Esq.
Diez-Arguelles & Tejedor, P.A.
505 North Mills Avenue
Orlando, Florida 32803
Telephone: 407-705-2880
Eservice: mail@theorlandolawyers.com
leah@theorlandolawyers.com
Attorneys for Plaintiff
Alex Alvarez, Esq.
The Alvarez Law Firm
355 Palermo Avenue
Coral Gables, FL 33134
Telephone: 305-444-7675
Eservice: alex@tal flaw
maria@talf.law
Co-Counsel for Plaintiff
Georges Edouard, M.D.
4330 W. Broward Blvd. Suite C
Plantation, FL 33317
Via Email: =EDOUARD_1142@outlook.com
Pro Se Defendant
CASE NO: CACE14014218 (04)
La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309
Telephone (754) 301-5060; Facsimile (754) 551-6884
Preview
Filing # 70061800 E-Filed 03/30/2018 06:12:50 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA. CASE NO: CACE14014218 (04) KHAI NGUYEN, individually, and as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased and on behalf of KRISTEN HUYNH, KYLIE NGUYEN, KADEN NGUYEN and as the Natural parent of KADEN NGUYEN, a Minor, Plaintiffs, vs. PLANTATION GENERAL HOSPITAL, L-P., d/b/a 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. / DEFENDANTS, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION GENERAL HOSPITAL AND DORI RATHBUN, MOTIO. LIMINE TO PRECLUDE USE OF MEDICAL LITERATURE PUBLISHED AFTER DATE OF INCIDENT Defendants, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION GENERAL HOSPITAL and DORI RATHBUN, by and through their undersigned attorneys, hereby file this Motion in Limine to preclude the use of any publications, articles, guidelines and/or practice parameters published after the date of this incident in July 2012, used on direct examination of Plaintiffs’ experts or on cross-examination of defense experts, and in support La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309 Telephone (754) 301-5060; Facsimile (754) 551-6884 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/30/2018 6:13:04 PM.****CASE NO: CACE14014218 (04) states as follows: 1. In Florida, the Plaintiff must prove the Defendant’s actions “represented a breach of the prevailing professional standard of care for that health care provider”. Fla. Stat. §766.102(1). 2. The Florida Legislature defined “prevailing” professional standard of care as “that level of care, skill and treatment, which in light of all relevant surrounding circumstances is recognized as acceptable and appropriate by reasonably prudent similar health care providers”. 3. While the Florida Legislature did not specifically define the term “surrounding circumstances”, the court must subscribe to such term its “plain and ordinary” meaning. Smith v. U.S., 508 US 223 (1993); Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000); Webster’s Unabridged Dictionary 1836 2d ed. (defining “surrounding” as “the things, conditions, circumstances, influences that surround a given place or person; environments”). 4, While §90.706, Florida Statutes, allows the use of some medical treatises, guidelines or textual material in cross-examination, the offering party must fully comply with the pre-requisites of the statute. Myron v. Doctors General Hosptial, Ltd., 704 So. 2d 1083 (Fla. 4° DCA 1997) (holding a trial court committed reversible error when allowing an expert to be cross-examined with a medical treatise which had not been deemed authoritative by the witness or the court). Moreover, material published after the date of incident cannot be used to establish the requisite standard of care at the time of the incident. Fla. Stat. $90.706 (stating admission allowed only when the court can find the treatise or guideline authoritative and relevant); see also, Call v. Tirone, 522 So. 2d 533, 534 (Fla. 3d DCA 1988) (concluding it is error to allow an La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309 Telephone (754) 301-5060; Facsimile (754) 551-6884CASE NO: CACE14014218 (04) expert to be cross-examined with medical writing unless the “literature is established to be reliable authority by the testimony or admission of the witness or . . . by judicial notice”). 5. Presenting evidence concerning guidelines, procedures or articles not in existence at the time of the incident in question is too remote and should be inadmissible. See Donahue v. Albertson's, Inc., 472 So. 2d 482 (Fla. 4" DCA 1985)(stating “evidence is remote only when there is no visible, plain or necessary connection between it and the proposition eventually to be proved”)(quoting NLRB y. Ed Chandler Ford Inc., 718 Fed. 2d 892, 893 (9" Cir. 1983). 6. In a medical malpractice case, Plaintiff must prove the health care provider deviated from the appropriate standard of care at the time the injury took place. Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984). 7. Any reference to publications written or produced after the date of this incident is irrelevant. To this end, §90.401, Florida Statutes, provides “relevant evidence is evidence tending to prove or disprove a material fact”. Here, any reference to publications, articles, guidelines and/or practice parameters published after the date of this incident or any use of these publications on cross-examination of defense experts is irrelevant and immaterial to this lawsuit as the standard of care cited in publications after the date of incident would not have been in existence at the time of the incident. 8. Further, §90.403, Florida Statutes, states “relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Evidence of publications, articles, guidelines and/or practice parameters published after the date of this La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309 Telephone (754) 301-5060; Facsimile (754) 551-6884CASE NO: CACE14014218 (04) incident if permitted to be made by counsel for the Plaintiff would be prejudicial to the defense under §90.403, Florida Statutes. Such prejudice could not be cured with a curative instruction. WHEREFORE, Defendants, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION GENERAL HOSPITAL and DORI RATHBUN, move this Honorable Court for entry of an order granting Defendants’ Motion in Limine precluding the use of any publications, articles, guidelines and/or practice parameters published after July 2012. CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing has been delivered via e-service this 30" day of March, 2018 to all addressees set forth on the attached Service List. LA CAVA & JACOBSON, P.A. Attorneys for Defendants, Plantation General Hospital and Dori Rathbun 501 E. Kennedy Blvd.; Suite 1250 Tampa, FL 33602 Telephone: 813-209-9611 Facsimile: 813-209-9511 /s/Louis J. La Cava BY: LOUIS J. LaCAVA Fla. Bar No: 507880 WILLIAM V. CARCIOPPOLO Fla. Bar No: 510051 La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309 Telephone (754) 301-5060; Facsimile (754) 551-6884SERVICE LIST Maria D. Tejedor, Esq. Diez-Arguelles & Tejedor, P.A. 505 North Mills Avenue Orlando, Florida 32803 Telephone: 407-705-2880 Eservice: mail@theorlandolawyers.com leah@theorlandolawyers.com Attorneys for Plaintiff Alex Alvarez, Esq. The Alvarez Law Firm 355 Palermo Avenue Coral Gables, FL 33134 Telephone: 305-444-7675 Eservice: alex@tal flaw maria@talf.law Co-Counsel for Plaintiff Georges Edouard, M.D. 4330 W. Broward Blvd. Suite C Plantation, FL 33317 Via Email: =EDOUARD_1142@outlook.com Pro Se Defendant CASE NO: CACE14014218 (04) La Cava & Jacobson, P.A., 4901 NW 17" Way, Suite 302, Fort Lauderdale, Florida, 33309 Telephone (754) 301-5060; Facsimile (754) 551-6884