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Filing # 58926679 E-Filed 07/12/2017 03:49:58 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
MARCELO DIAZ, as Personal Representative CASE NO.: 2008-CA-11228-0
of the Estate of HERMINIA DIAZ,
Plaintiff,
VS.
HARINATH SHEELA, M.D., DIGESTIVE AND
LIVER CENTER OF FLORIDA, P.A., et al
Defendants.
DEFENDANTS, HARINATH SHEELA, M.D., AND DIGESTIVE AND LIVER
CENTER OF FLORIDA, P.A.'S MOTION FOR RECONSIDERATION OF
PLAINTIFF'S MOTION FOR LEAVE TO AMEND TO ADD CLAIM FOR PUNITIVE
DAMAGES, AND IN THE ALTERNATIVE, MOTION IN LIMINE TO PRECLUDE
CHARACTERIZATION OF REQUEST FOR CONSULT BY DR. SHEELA AS "STAT"
Defendants, HARINATH SHEELA, M.D. ("Dr. Sheele) and DIGESTIVE AND LIVER
CENTER OF FLOIRDA, P.A. (collectively "Defendants"), file this Motion for Reconsideration of
the Court's Order Granting Plaintiff s Motion for Leave to Amend Complaint to Add Claim for
Punitive Damages, or in the alternative, seeks an Order in Limine precluding the Plaintiff from
referring to the consult request made by Dr. Junais Desamour on January 7, 2007 as a request for a
"STAT" consult, and in support thereof, states:
INTRODUCTION AND IMMEDIATE PROCEDURAL HISTORY
This is an action arising out of the medical care and treatment provided to Herminia
Diaz ("the decedent") in January of 2007. Generally, Plaintiff maintains that the treatment rendered
by Dr. Sheela fell below the applicable standard of care and resulted in injury to and the death ofthe
decedent. See generally Plaintiff s third amended complaint.
2. On October 28, 2015, Plaintiff filed a motion to amend the third amended complaint
to allege a claim for punitive damages. See Plaintiff s motion to amend. Attached to Plaintiff s
motion was the proposed amendment detailing the alleged acts or omissions of Dr. Sheela which
Plaintiff contends entitle him to punitive damages. See Exhibit D to Plaintiff s motion.
3. The basis for Plaintiff s contention that the Defendantsconduct rose to the requisite
level of culpability so as to warrant the imposition of punitive damages was the conclusion of the
Plaintiff s retained expert in general surgery, Dr. David Mayer, that Dr. Sheela "abandonee the
Decedent by failing to take a call from a physician at Florida Hospital Orlando on January 7, 2007,
and/or improperly delegating the call to an ARNP. See Plaintiff s Motion.
4. On March 30, 2016, the Court granted the Plaintiff s Motion for leave to amend the
Complaint.
5. However, Dr. Mayer's opinions were based upon inferences which were contrary to
the facts established in the record, and further evidence developed in the discovery process
establishes that the behavior Dr. Mayer contends was "grossly negligenf' and "reckless" on the part
of Dr. Sheela simply did not occur. Thus, at this stage in the proceedings, after discovery has been
concluded, it is evident that there is insufficient evidence which will be presented at trial to permit
the Plaintiff to meet the burden of proving the gross negligence of Dr. Sheela by clear and
convincing evidence. Based upon the foregoing, the Defendants respectfully request that this Court
reconsider and vacate its previous ruling and enter an Order DENYING Plaintiff s Motion for Leave
to Amend to Add Punitive Damages.
6. In addition to the foregoing, or in the alternative, the Defendant requests that this
Court enter an Order in Limine precluding the Plaintiff from characterizing the request for a consult
by Dr. Sheela called by Dr. Desamour as a "STAT' request or a "STAT' consult based upon the
record evidence.
FACTS AS EVIDENCED IN THE RECORD
7. On January 2, 2007, the decedent was referred to Digestive and Liver Center of
Florida, P.A. by her nephrologist, Dr. Howard Sackel, for evaluation of heme-positive stools.
During the office visit ofJanuary 2, 2007, a colonoscopy, as well as an esophagogastroduodenoscopy
("EGD"), were recommended to further evaluate the potential causes of her heme-positive stools.
Those procedures were scheduled for January 4, 2007.
8. Dr. Sheela performed both the colonoscopy and EGD on January 4, 2007, at the
Orlando campus of Florida Hospita1.1 Before performing the procedure, the risks, benefits and
alternatives were discussed with the decedent. Dr. Sheela discovered small hemorrhoids during the
colonoscopy. The decedent was discharged the same day and discharge instructions were provided
to her and her husband. There is no evidence in the record that the decedent or her husband
expressed any concern regarding their understanding ofthe post-procedure instructions provided by
Dr. Sheela.
9. Three days later, on January 7, 2007, the decedent presented to the Florida Hospital--
Apopka emergency room complaining of acute onset of abdominal pain and was admitted for further
evaluation. Specifically, the decedent reported that she began experiencing abdominal pain at 5:00
AM on that day. Upon admission, an initial assessment was performed by Junias Desamour, M.D., a
hospitalist. Dr. Desamour noted that the decedent stated that she was experiencing sharp abdominal
pain which had been lasting for five hours. After evaluating the decedent, Dr. Desamour came to the
1 It is alleged by the Plaintiff in the Motion for Punitive Damages that Dr. Sheela negligently sedated the Decedent and
that as a result, she became restless and had colon spasms during the procedure, which caused Dr. Sheela to perforate the
colon. See Paragraph 12 of Plaintiff s Motion. The Plaintiff provided testimony by his retained expert in anesthesiology,
Dr. Emilio Lobato, to support this theory of negligence. The Defendant disputes that Dr. Lobato is sufficiently qualified
to render such opinions on causation; however, it should be noted that such testimony was not the basis for seeking
conclusion that there was no obvious perforation of the bowel. See Exhibit 3 (Junias Desamour,
M.D.'s deposition) at p.47, li. 21-24. He then ordered a routine GI consultation with Dr. Sheela to
take place at Florida Hospital Orlando, and ordered the decedent to be transferred to that location.
See Exhibit 1. This consultation was not ordered by Dr. Desamour on a "STAT" basis. See Exhibit
2 (Paula Lechner, R.N.'s deposition) at p. 29; see also Exhibit 3 (Junias Desamour, M.D.'s
deposition) at pp. 65-67. In fact, Dr. Desamour testified that he did not order the GI consult on a
"STAT" basis because "there was no need for stat GI consult." Id. Dr. Desamour also ordered a
nephrology consult.
10. The decedent was discharged from Florida Hospital Apopka and transferred to Florida
Hospital Orlando. She was admitted to Florida Hospital Orlando at approximately 5:30 PM. See
Exhibit 6. At 6:11 PM, hospitalist Dr. Suhan Li entered a telephone order for a soap suds enema to
be administered to the decedent. Id.
11. At 6:42 PM, Paula Lechner, R.N., ("Nurse Lechner") at Florida Hospital Apopka
called Dr. Sheela's answering service to put in the routine request for consult ordered by Dr.
Desamour. See Exhibit 2 at pp. 16-17. According to Nurse Lechner's testimony, routine consults are
called in throughout the day, not necessarily immediately, in roughly the order they are received. Id.
at p. 7. Accordingly, this routine GI consult ordered by Dr. Desamour was called to the answering
service nearly five hours after it was ordered, because it was not a STAT order. See Exhibit 1; see
also Exhibit 2 at p. 7 (stat orders are prioritized).
12. Additionally, because this was not ordered as a "STAT" consultation by Dr.
Desamour, the answering service would not forward the consult to Dr. Sheela until the next morning,
as the call was received after hours. See Exhibit 4 (Dr. Sheela's second deposition) at pp. 62-63.
recovery of punitive damages.
This practice is consistent with Florida Hospital bylaws. Id.; see also Exhibit 5 (excerpt from
Florida Hospital bylaws). These bylaws mandate that when a routine consultation is ordered such as
the one atissue, the physician has 24 hours to see the patient. See Exhibit 5.
13. Therefore, Dr. Sheela was not notified ofthe decedent's presentation or her admission
to Florida Hospital Orlando at any point in time on January 7, 2007.
14. At approximately 9:00 PM, the decedent was seen by Dr. Joseph Warren, a
nephrologist. Dr. Warren evaluated the decedent and noted that his plan was to consult with Dr.
Stephen Schreiber (a general surgeon) as well as Dr. Sheela. See Exhibit 6. Dr. Warrenpersonally
called Dr. Schreiber, the surgeon, to let him know of the decedent's condition. Id. Of note, Dr.
Schreiber did not call Dr. Sheela despite the fact that he indicated his plan was to consult with Dr.
Sheela.
15. In the early morning hours of January 8, 2007, the decedent's condition deteriorated
and she was transferred to the Intensive Care Unit on Dr. Warren's orders. At 7:00 AM, Dr.
Schreiber entered an order indicating that his plan was for an exploratory laparotomy, probable colon
resection and probable colostomy. Id.
16. Subsequently, the decedent was evaluated by Juliette Harris, an ARNP working for
Florida Hospital in the gastroenterology unit. Exhibit 7 (Juliette Harris's deposition) at pp. 48-50. At
that time, the decedent was already scheduled for an exploratory laparotomy, and shortly thereafter,
she was brought to the operating room for an exploratory laparotomy. Dr. Schreiber noted a
perforation of the sigmoid colon and fecal contamination of the peritoneal cavity intraoperatively.
The decedent was returned to the recovery room in stable, but extremely critical condition. Dr.
Sheela saw the decedent on January 8, 2007, following the surgery, and less than 24 hours after the
January 7, 2007 call was made by Nurse Lechner to his answering service. Exhibit 4 at p. 80 and p.
93-95 (decedent seen by Dr. Sheela at 4 or 5 p.m. on January 8, 2007).
17. After the surgery, the decedent became ventilator-dependent. The decedent's family
requested that any further aggressive treatments such as breathing assistance via the ventilator be
discontinued. The decedent passed away on January 24, 2007.
LEGAL STANDARD
A. Legal Standard for Reconsidering Interlocutory Orders.
18. It is well established in Florida jurisprudence that a trial court may reconsider any of
itsinterlocutory rulings prior to the entry of a final judgment or final order in the cause. See Bettez v.
City ofMiami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987). Interlocutoryjudgments or orders made
during the progress of a case are always under the control of the court until final disposition of the
suit, and they may be modified or rescinded upon sufficient grounds at any time before final
judgment. See Holman v.Ford Motor Co., 239 So. 2d 40, 43 (Fla. 1st DCA 1970). As such, the
Court has the authority to reconsider its previous ruling granting Plaintiff leave to amend the
Complaint to recover punitive damages.
B. Standard for Pleading Punitive Damages
19. Punitive damages are a form of extraordinary relief for egregious acts or omissions.
BDO Seidman, LLP v.Banco Espirito Santo Intl, 38 So. 3d 874, 877 (Fla. 2d DCA 2010). Under
Florida law, the purpose of punitive damages is not to further compensate a plaintiff, but to punish
the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the
future. Id., citing W.R. Grace & Co.-Conn. V. Waters, 638 So. 2d 502, 504 (Fla. 1994).
20. The Florida Supreme Court has established standards to be met to justify the
imposition of punitive damages upon a defendant:
The character of negligence necessary to sustain an award of punitive
damages must be of a 'gross and flagrant character, evincing reckless
disregard of human life, or of the safety of persons exposed to its dangerous
effects, or there is that entire want of care which would raise the presumption
of a conscious indifference to consequences, or which shows wantonness or
recklessness, or a grossly careless disregard of the safety and welfare of the
public, or that reckless indifference to the rights of others which is equivalent
to an intentional violation of them'
White Const. Co. Inc. v. Dupont, 455 So.2d 1027, 1029 (Fla. 1984)(overruled on other grounds).
The type of negligence necessary to sustain a conviction for manslaughter is the same as that
required to sustain a recovery for punitive damages. Id. (citing Carraway v. Revell, 116 So.2d 16
(Fla. 1959)).
21. Section 768.72(2), Florida Statutes, provides that a defendant may be liable for
punitive damages only if the trier of fact, based on clear and convincing evidence, finds that
defendant was personally guilty of "intentional misconduct" or "gross negligence." Subsections (a)
and (b) define these terms as follows:
"Intentional misconduce means that the defendant had actual knowledge of
the wrongfulness of the conduct and the high probability that injury or
damage to the claimant would result and, despite that knowledge,
intentionally pursued that course of conduct, resulting in injury or damage.
"Gross negligence" means that the defendant's conduct was so reckless or
wanting in care that itconstituted a conscious disregard or indifference tothe
life, safety, or rights of persons exposed to such conduct.
Section 768.72(2)(a),(b), Florida Statutes.
22. Under Section 768.72 (1), Florida Statutes: "In any civil action, no claim for punitive
damages shall be permitted unless there is a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for recovery of such damages. The
claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed
by the rules of civil procedure." Under Rule 1.190, Florida Rules of Civil Procedure, a motion for
leave to amend a complaint for punitive damages "shall make a reasonable showing, by the evidence
in the record or evidence to be proffered by claimant, providing a reasonable basis for recovery of
such damages." By enacting this provision of the Florida Rules of Civil Procedure, the Florida
Supreme Court has determined that defendants have the substantive right not to be subject to
punitive damages claims until the trial court makes a determination that there is a reasonable
evidentiary basis for recovery of punitive damages. Globe Newspaper Co. v. King, 658 So. 2d 518,
519 (Fla. 1985).
23. Before aplaintiff may assert a claim of punitive damages, the trial court must make a
determination that there is a reasonable basis for recovery of such damages. See Simeon, Inc. v. Cox,
671 So.2d 158, 160 (Fla. 1995); §768.72 Fla. Stat. The determination must be based on a reasonable
showing by evidence in the record or proffer by the claimant. See Strasser v. Yalamanchi, 677 So.2d
22 (Fla. 4th DCA 1996)(citing Globe Newspaper Co. v. King, 658 So.2d 518 (Fla. 1995)); Stephanos
v. Paine, 727 So.2d 1075 (Fla. 1999); see also, Estate ofDespain v. Avanate Group, Inc., 900 So.2d
637, 641-643 (Fla. 5th DCA 2005). Evidence in the record would typically include depositions,
interrogatories, and requests for admissions that have been filed with the Court. The appellate courts
of this State have provided further guidance by elucidating that the "reasonable showine of a basis
for recovery for damages is "similar to determining whether a complaint states a cause of action or
the record supports a summary judgment." Bistline v. Rogers, 215 So. 3d 607, 610 (Fla. 4th DCA
2017) (
24. Further, conclusory statements in an affidavit by an expert, alone, are not enough to
establish the requisite evidentiary basis to allow an amendment to go forward. See Chrysler Corp. v.
Wolmer, 499 So. 2d 823, 826 (Fla. 1986) (finding that despite testimony from numerous experts, the
Plaintiff did not make a showing of a reasonable evidentiary basis by clear and convincing evidence).
ARGUMENT REGARDING PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES
25. Plaintiff maintains that the record supports an amendment of the Complaint for
punitive damages because Plaintiff s expert, David Mayer, M.D. opined that Dr. Sheela's conduct
represented a reckless and gross deviation from the applicable standard of care in the following
ways: (1) Dr. Sheela neglected to review the decedent's hospital chart when he was allegedly called
on January 7, 2007 and/or failed to immediately present to the hospital to care for the decedent; and
(2) his delegation of the evaluation of the decedent to the ARNP and almost 24 hour "delay" in
arriving at the hospital. See Plaintiff s motion to amend at ¶¶14-15.
26. Each of these opinions are based on, not record evidence, but on erroneous
assumptions made by Dr. Mayer and require an impermissible stacking of inferences. First, Dr.
Mayer admitted that all ofthe opinions ofwhich he contends Dr. Sheela acted in a reckless manner
are based on the assumption that Dr. Sheela actually received a call from his answering service on
the night of January 7, 2007. See Exhibit 8 (Dr. Mayer's deposition) at p. 61-62; 67. Second, Dr.
Mayer assumed that the consult was a "STAT" consult, or should have been considered a "STAT"
consult, and not a routine consult. Id. at p. 56.
27. It has long been established that an inference upon an inference may not be relied
upon to establish an essential fact in a case, unless the original inference can be elevated to the
dignity of an established fact by illuminating the absence of any reasonable inferences to the
contrary. Girdley Constr. Co. v. Ohmstede, 465 So. 2d 594, 596 (Fla. 1st DCA 1985). In other words,
an inference recognizable in law cannot be based on evidence that is so uncertain or speculative that
it merely raises a possibility. Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th DCA 2008). By
design, this rule is intended to protect litigants from verdicts grounded in speculation and conjecture.
Id.
28. The evidence in the case supports neither of these assumptions, and in fact, clearly
establishes the contrary. First, Dr. Desamour, the physician who ordered the consult with Dr.
Sheela, explicitly testified that he did not order a consult with Dr. Sheela as a STAT consult because
there was no need for a STAT GI consult. See Exhibit 3 (Junias Desamour, M.D.'s deposition) at pp.
65-67. Thus, Dr. Mayer's assumption that the consult request was ordered as a STAT consult
request, this assumption is simply erroneous, and serves as an unreliable basis for any further
inferences regarding the negligence (gross or otherwise) of Dr. Sheela. While Dr. Mayer may believe
that the consult should have been ordered as a STAT consult, it simply was not intended to be a
STAT consult by the ordering physician, and Dr. Sheela would not have had any role in determining
how the consult was ordered or called to his answering service.
29. Second, the unrefuted evidence of record establishes that Dr. Sheela did not receive
notice regarding Ms. Diaz's presentation to the emergency room or her admission to the hospital on
January 7, 2007, and therefore, Dr. Mayer's inference that Dr. Sheela ignored a call that night and
abandoned the patient is based upon faulty information. While Nurse Lechner called Dr. Sheela's
answering service at 6:42 p.m. on January 7, 2007, Dr. Sheela testified that he had previously
instructed his answering service not to forward after hours messages regarding routine consults until
the next morning.2 See Exhibit 2 at pp. 16-17 (Lechner testimony regarding call); see also Exhibit 4
at pp. 62-63 (Sheela testimony regarding after hours calls). Nurse Lechner did not testify that she
spoke with Dr. Sheela. No other physician testified that he spoke with Dr. Sheela, or even made any
attempt to contact Dr. Sheela directly. Accordingly, Dr. Sheela would not have received a call from
the answering service regarding the routine consult on the night of January 7, 2007, as assumed by
Plaintiff s expert.
30. In an effort to establish that Dr. Sheela did receive a call about the consultation on
January 7th, counsel for Plaintiff questioned Dr. Mayer during his deposition regarding the testimony
of Juliette Harris, ARNP. Exhibit 7 at pp. 126-130. This testimony was apparently meant to
establish that Nurse Harris received the request to evaluate the decedent from Dr. Sheela on January
7, 2007; therefore, Dr. Sheela must have received notification from the answering service. Id.
However, not only did Plaintiff s counsel's questions to Dr. Mayer misrepresent the testimony given
by Nurse Harris,3 but his line of questioning also completely failed to acknowledge that she
categorically denied receiving any request to evaluate the decedent on the night ofthe 7th and instead
stated that she was not contacted until the next morning, January 8th. Exhibit 8 at p. 83.
31. Accordingly, there is no record evidence to support the assumption that Dr. Sheela
received notification of Dr. Desamour's consult request on January 7, 2012. Even Dr. Mayer admits
that if Dr. Sheela was not informed ofthis consult request that night, he could not have responded to
it in an improper manner as outlined in his opinions. Exhibit 8 at p. 69-60; 62; 67.
32. Assuming arguendo, that Dr. Sheela did receive notification of the consult request
from his answering service on January 7, 2007, Dr. Sheela acted properly in responding to what was
a routine consultation request.
33. Dr. Mayer's opinion that Dr. Sheela acted in a reckless manner was based upon the
consultation at issue being a STAT consultation. If this was not a STAT consultation, Dr. Mayer
conceded that Dr. Sheela would have 24 hours to present and evaluate the decedent. Exhibit 8 at p.
69.
34. The record evidence clearly establishes that this was not a STAT consultation request,
2 Dr. Sheela further testified that if this was a stat consultation, the physician making the consultation would have called
him personally, bypassing Nurse Lechner and the answering service from the process. Exhibit 4 at pp. 62-63.
3 It is telling that in the Plaintiff s Motion, the Plaintiff failed to include the portion of Dr. Mayer's deposition
but rather a routine consultation and that Dr. Sheela did present to the hospital within 24 hours ofthe
request being phoned to his answering service. Dr. Desamour, the ordering physician testified that
the consultation was not ordered STAT, as it was not necessary in his opinion. Exhibit 3 at pp. 65-
67. Nurse Lechner testified that Dr. Desamour's order did not have "STAT" written next to the
consultation request and accordingly, she did not treat it as a STAT consultation. See Exhibit 1; see
also Exhibit 2 at p. 29. Additionally, even Dr. Mayer admitted that the consultation request from Dr.
Desamour was processed as a routine consultation and not a STAT consultation. Exhibit 8 at p. 56.
35. In an attempt to bolster his opinion that this consultation should have been considered
a STAT consultation, regardless of how it was processed, Dr. Mayer testified that any consultation
made for a patient in the emergency room should be considered STAT. Id. at p. 68.4 However, the
decedent was not in the emergency room at the time the consultation was called into Dr. Sheela's
answering service, but rather, she had been admitted to a patient room. Id. at p. 77-78. Thus, even if
all routine consultations are to be deemed STAT when the subject patient is in the emergency room,
as asserted by Dr. Mayer, that premise would not apply to the facts of the current case.
36. As Dr. Desamour's consultation request dated January 7, 2007 was not made on a
STAT basis, Dr. Sheela's appearance and evaluation of the patient by 4 or 5 p.m. on January 8th
complied with Florida Hospital's bylaws and even the standard of care articulated by Dr. Mayer. See
Exhibit 5; see also Exhibit 8 at p. 69. Therefore, not only was Dr. Sheela not acting in a reckless
manner, but he met the applicable standard of care per Dr. Mayer's own testimony and complied
with the hospital's bylaws for the handling of consultation requests.
transcript which would illuminate for the Court what information was provided to Dr. Mayer by the Plaintiff.
4 Once again, although Dr. Mayer insisted that this order for a GI consult should have been a "STAT" request, which
had to have been made by the hospitalist at Florida Hospital Apopka, Dr. Desamour, he initially refused to admit that
he was criticizing Dr. Desamour. Ultimately, he conceded that the failure would be a breach in the standard of care,
but the five hour delay between when Dr. Desamour put in the order and when a call was made to Dr. Sheela's
37. Further evidence ofthe reasonable nature of Dr. Sheela's conduct is found by looking
to the conduct of Dr. Schreiber, the surgeon who Dr. Warren personally contacted at approximately
9:00 PM on January 7, 2007. The medical records indicate that Dr. Warren contacted Dr. Schreiber
to discuss Ms. Diazdeteriorating condition. However, Dr. Schreiber entered no orders and did not
come to the hospital to evaluate Ms. Diaz until the morning ofJanuary 8, 2007. Curiously, Dr. Mayer
offered no criticisms of a surgeon (in the same specialty in which he previously practiced), who was
personally contacted by a physician transferring a patient to the ICU, delaying involvement in the
care of the patient until the next day.
38. Florida appellate courts have explicitly held that Fla. Stat. 768.72 requires trial courts
to evaluate the evidence of record in determining whether punitive damages may be pled, and not
simply take the Plaintiff s allegations as true. See Bistline v. Rogers, 215 So. 3d at 610 (finding that
"an evaluation of the evidentiary showing required by section 768.72 does not contemplate the trial
court simply accepting the allegations in a complaint or motion to amend as true). The decision of
whether conduct set forth in an evidentiary proffer rises to the level permitting punitive damages
established by the Florida Legislature is for the court to make independently ofthe opinion testimony
of experts.
39. Nothing in Fla. Stat. 768.72 requires a trial court to "rubber stamp" the opinions of a
party's experts on punitive damage determinations. Were that the case, the role of the trial court
would be eliminated whenever a qualified expert uttered the words "gross negligence or "reckless"
when describing a defendant's actions. This clearly was not the intent of the Legislature when it
enacted 768.72 requiring a reasonable showing be made to the trial court demonstrating a plaintiff s
entitlement to recover punitive damages.
answering service did not contribute to the decedent's death. See Exhibit 8 at 64-65.
40. Discovery in this matter has been conducted over more than six years, and the
Plaintiff has not been able to establish any conduct on the part of Dr. Sheela which would tend to
support any claim that he acted in a manner so negligent so as to support a conviction for criminal
manslaughter, the equivalent of gross negligence requisite to recover punitive damages.
41. Thus, Plaintiff s motion, which is supported solely by erroneous factual statements
and unfounded inferences made by his retained expert, Dr. Mayer, is insufficient to establish that the
Plaintiff is entitled to recover punitive damages.
ARGUMENT REGARDING ADMISSIBILITY OF TESTIMONY CRITICIZING DR.
SHEELA FOR FAILING TO RESPOND TO A "STAT" CONSULT
42. As set forth above, the record evidence in this matter clearly establishes the following:
a) Dr. Desamour did not order the consult by Dr. Sheela as a "STAT" consult; b) Dr. Sheela was not
notified of Ms. Diazadmission to the hospital on January 7, 2007, and therefore, c) Dr. Sheela's
alleged "failure to respone to the request for consult on January 7, 2007, was not the proximate
cause of any harm to the Decedent.
43. Therefore, Dr. Mayer and all other experts and witnesses retained by the Plaintiff,
should be precluded from characterizing Dr. Desamour's request for a consult on January 7, 2007 as
a "STAT" request or a request for a "STAT" consult. To permit Dr. Mayer or any other witness to
characterize the request as such would be to mislead the jury and confuse the issues in this matter.
Fla. Stat. 90.403.
44. Further, this Court should strike Dr. Mayer's opinions regarding Dr. Sheela's
"breach" ofthe standard of care in failing to respond to a "STAT" consult, and further preclude him
or any other expert witness from testifying that Dr. Sheela's alleged "failure' to respond timely to the
request for consult placed by Dr. Desamour was aproximate cause of the Decedent's damages, as
this testimony is based upon incorrect information and erroneous assumptions. See All American
Pool Surface, Inc. v. Jordan, 870 So. 2d 885 (Fla. 3d DCA 2004) (reversing trial court's denial of a
motion for new trial where testimony of expert was so based on speculation, conjecture, and
incorrect assumptions that it should have been excluded from evidence).
45. Instructive in this matter is the Second District Court of Appeal's recent decision
issued in Shartz v. Miulli, 127 So. 3d 613 (Fla. 2d DCA 2013). In Shartz, Mrs. Miulli sued Erwin S.
Shartz, M.D. for medical negligence, alleging certain omissions relative to a sports medical release
authorizing her son to play baseball proximately caused his death. In particular, it was Ms. Miulli's
contention that Dr. Shartz's inaction (i.e. his failure to confirm the Miullis understood Matthew was
not to participate in sports before seeing his cardiologist) was the cause ofMatthew' s sudden cardiac
arrest and subsequent death.
46. In reversing the trial court's denial of a directed verdict, the Second District found the
testimony of the plaintiff s expert was legally insufficient to establish the defendants were a
proximate cause ofMatthew's death. The court placed particular emphasis on the lack ofevidence as
to what the Miullis would have done had Dr. Shartz "closed the loop" and the resultant unreliability
of the Miulli's expert witnessestestimony. Id. at 620-21. While the court acknowledged Matthew
"possibly" could have survived if several actions were taken, it similarly acknowledged that
"possibly is not the standare governing causation. Id. at 621. The court further found the Miullis'
lack of causation evidence "necessarily left [the jury] to speculate and make inferences
about...critical issues," requiring entry of a verdict in favor of the defendants. Id.
47. The Shartz court noted that the plaintiffs' retained expert witness, a family medicine
physician, provided causation testimony which went "well beyond [her] expertise' and was "totally
conclusory in nature, unsupported by any discernable, factually-based chain of underlying
reasoning." Id. at 619 (emphasis added).
48. The Shartz court further noted that a "plaintiff in a medical malpractice action must
show that what was done or failed to be done probably would have affected the outcome." Shartz
127 So. 3d at 619 (internal citations omitted). It further held that "the plaintiff [in a medical
negligence action] must establish causation without an impermissible stacking of inferences." Id.
49. The key finding by the Shartz court which has been iterated by all ofthe courts in the
State of Florida is that "[t]he opinion of an expert is not sufficient to eliminate the necessity of
proving the foundation facts necessary to support the opinion." Id.; see also Harris v. Josephs of
Greater Miami, Inc., 122 So. 2d 561, 562-63 (Fla. 1960) (finding that "[i]t is elementary that the
conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence
in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be
deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of
the existence of the facts necessary to the support of the opinion.") (internal citations omitted);
Schindler Elevator Corp. v. Carvalho, 895 So. 2d 1103, 1106 (finding that the trial court improperly
permitted the testimony of an expert who ignored the facts in the record, and whose opinions were
wholly unsupported by the facts of the case).
50. As Dr. Mayer's opinions are all based upon the inaccurate factual assumption that the
order for a consult should have been, or was a "STAT" consult, they should be stricken and he
should be precluded from testifying as such, as his opinions cannot constitute proof ofthe existence
of the facts necessary to support his own opinions (e.g. that the consult was a STAT request).
51. Further, even if there is some criticism to be made of Dr. Sheela for failing to come in
on the evening of January 7, 2007 to evaluate the Decedent, there would have been no change in the
outcome. Dr. Mayer's criticism of Dr. Sheela for failing to come in on January 7, 2007 was that he
was not available to evaluate the patient and understand that there was an abdominal catastrophe
which required a surgical consult. See Exhibit 8 at 70-72. The call to Dr. Sheela's answering service
was made atapproximately the same time a call to the Decedent's nephrologist was made. Dr.
Warren, the attending nephrologist, saw the Decedent at approximately 9:00 PM, and noted that he
suspected a perforation. He then called the surgeon, Dr. Schrieber, and personally discussed the case
with him. At that point, Dr. Schreiber, the surgeon, who would be responsible for repairing a
perforation, was apprised of the Decedent's clinical situation, and he elected not to come to the
hospital until the morning ofJanuary 8, 2007. As Dr. Mayer noted, a GI physician such as Dr. Sheela
cannot repair a bowel perforation; he can only ask a surgeon to come in and see the patient. Id. at
71.5
52. Therefore, to allow Dr. Mayer to provide testimony criticizing Dr. Sheela for failing
to come in on the night of January 7, and to advise a jury that such "failurewas a breach in the
standard of care which caused or contributed to the Decedent's death, would be to confuse the issues,
mislead the jury, and cause substantial and unfair prejudice to the Defendants. As such, this
testimony should be excluded from evidence.
CONCLUSION
53. When taking into consideration all of the evidence of record in this case, now, at the
close of discovery, it is clear that Dr. Sheela's actions in managing the care of the decedent did not
rise to the level of willful and wanton disregard for life and safety, or gross negligence which is
requisite to sustain a claim for punitive damages. Further, it is evident that the Plaintiff will not be
5 Dr. Mayer also offered criticism by indicating that if Dr. Sheela had come in when he received the "STAT" consult, he
could have somehow prevented the soap suds enema ordered by Dr. Li from being administered at approximately 8:00
PM. However, he stated that the soap suds enema did not cause the perforation and therefore did not cause the
Decedent's death. See Exhibit 8 at 101-105. However, it should be noted that a call was made for a consult to a
nephrologist at approximately the same time the call for a consult was made to Dr. Sheela, and the nephrologist did not
able to prove such conduct by clear and convincing evidence. As such, the Plaintiff s claim for
punitive damages should be stricken, and this Court should reverse its decision to allow the Plaintiff
to plead punitive damages.
54. Further, introduction of evidence or testimony characterizing the January 7, 2007
request for a consult from Dr. Sheela made by Dr. Desamour as "STAT" in any way would be
misleading to a jury, and would cause substantial and unfair prejudice to the Defendants.
55. Likewise, permitting Dr. Mayer to testify that Dr. Sheela was negligent in any way by
failing to present to the hospital on the night of January 7, when there is no evidence that he was
notified ofthe Decedent's admission to the hospital the same night, would be unfairly prejudicial and
misleading to the jury. The testimony would be based on unreliable and erroneous factual
information.
WHEREFORE, the Defendants respectfully request that this Court deny Plaintiff s request to
plead or seek punitive damages, and preclude the Plaintiff from introducing testimony characterizing
the consult as a request for a "STAT" consult, or criticizing Dr. Sheela for failing to come to the
hospital on the night of January 7, 2007, along with any and all other reliefthis Court may deem just
and proper.
arrive at thehospital in time to prevent the
soap suds enema either.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy
Preview
Filing # 58926679 E-Filed 07/12/2017 03:49:58 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA MARCELO DIAZ, as Personal Representative CASE NO.: 2008-CA-11228-0 of the Estate of HERMINIA DIAZ, Plaintiff, VS. HARINATH SHEELA, M.D., DIGESTIVE AND LIVER CENTER OF FLORIDA, P.A., et al Defendants. DEFENDANTS, HARINATH SHEELA, M.D., AND DIGESTIVE AND LIVER CENTER OF FLORIDA, P.A.'S MOTION FOR RECONSIDERATION OF PLAINTIFF'S MOTION FOR LEAVE TO AMEND TO ADD CLAIM FOR PUNITIVE DAMAGES, AND IN THE ALTERNATIVE, MOTION IN LIMINE TO PRECLUDE CHARACTERIZATION OF REQUEST FOR CONSULT BY DR. SHEELA AS "STAT" Defendants, HARINATH SHEELA, M.D. ("Dr. Sheele) and DIGESTIVE AND LIVER CENTER OF FLOIRDA, P.A. (collectively "Defendants"), file this Motion for Reconsideration of the Court's Order Granting Plaintiff s Motion for Leave to Amend Complaint to Add Claim for Punitive Damages, or in the alternative, seeks an Order in Limine precluding the Plaintiff from referring to the consult request made by Dr. Junais Desamour on January 7, 2007 as a request for a "STAT" consult, and in support thereof, states: INTRODUCTION AND IMMEDIATE PROCEDURAL HISTORY This is an action arising out of the medical care and treatment provided to Herminia Diaz ("the decedent") in January of 2007. Generally, Plaintiff maintains that the treatment rendered by Dr. Sheela fell below the applicable standard of care and resulted in injury to and the death ofthe decedent. See generally Plaintiff s third amended complaint. 2. On October 28, 2015, Plaintiff filed a motion to amend the third amended complaint to allege a claim for punitive damages. See Plaintiff s motion to amend. Attached to Plaintiff s motion was the proposed amendment detailing the alleged acts or omissions of Dr. Sheela which Plaintiff contends entitle him to punitive damages. See Exhibit D to Plaintiff s motion. 3. The basis for Plaintiff s contention that the Defendantsconduct rose to the requisite level of culpability so as to warrant the imposition of punitive damages was the conclusion of the Plaintiff s retained expert in general surgery, Dr. David Mayer, that Dr. Sheela "abandonee the Decedent by failing to take a call from a physician at Florida Hospital Orlando on January 7, 2007, and/or improperly delegating the call to an ARNP. See Plaintiff s Motion. 4. On March 30, 2016, the Court granted the Plaintiff s Motion for leave to amend the Complaint. 5. However, Dr. Mayer's opinions were based upon inferences which were contrary to the facts established in the record, and further evidence developed in the discovery process establishes that the behavior Dr. Mayer contends was "grossly negligenf' and "reckless" on the part of Dr. Sheela simply did not occur. Thus, at this stage in the proceedings, after discovery has been concluded, it is evident that there is insufficient evidence which will be presented at trial to permit the Plaintiff to meet the burden of proving the gross negligence of Dr. Sheela by clear and convincing evidence. Based upon the foregoing, the Defendants respectfully request that this Court reconsider and vacate its previous ruling and enter an Order DENYING Plaintiff s Motion for Leave to Amend to Add Punitive Damages. 6. In addition to the foregoing, or in the alternative, the Defendant requests that this Court enter an Order in Limine precluding the Plaintiff from characterizing the request for a consult by Dr. Sheela called by Dr. Desamour as a "STAT' request or a "STAT' consult based upon the record evidence. FACTS AS EVIDENCED IN THE RECORD 7. On January 2, 2007, the decedent was referred to Digestive and Liver Center of Florida, P.A. by her nephrologist, Dr. Howard Sackel, for evaluation of heme-positive stools. During the office visit ofJanuary 2, 2007, a colonoscopy, as well as an esophagogastroduodenoscopy ("EGD"), were recommended to further evaluate the potential causes of her heme-positive stools. Those procedures were scheduled for January 4, 2007. 8. Dr. Sheela performed both the colonoscopy and EGD on January 4, 2007, at the Orlando campus of Florida Hospita1.1 Before performing the procedure, the risks, benefits and alternatives were discussed with the decedent. Dr. Sheela discovered small hemorrhoids during the colonoscopy. The decedent was discharged the same day and discharge instructions were provided to her and her husband. There is no evidence in the record that the decedent or her husband expressed any concern regarding their understanding ofthe post-procedure instructions provided by Dr. Sheela. 9. Three days later, on January 7, 2007, the decedent presented to the Florida Hospital-- Apopka emergency room complaining of acute onset of abdominal pain and was admitted for further evaluation. Specifically, the decedent reported that she began experiencing abdominal pain at 5:00 AM on that day. Upon admission, an initial assessment was performed by Junias Desamour, M.D., a hospitalist. Dr. Desamour noted that the decedent stated that she was experiencing sharp abdominal pain which had been lasting for five hours. After evaluating the decedent, Dr. Desamour came to the 1 It is alleged by the Plaintiff in the Motion for Punitive Damages that Dr. Sheela negligently sedated the Decedent and that as a result, she became restless and had colon spasms during the procedure, which caused Dr. Sheela to perforate the colon. See Paragraph 12 of Plaintiff s Motion. The Plaintiff provided testimony by his retained expert in anesthesiology, Dr. Emilio Lobato, to support this theory of negligence. The Defendant disputes that Dr. Lobato is sufficiently qualified to render such opinions on causation; however, it should be noted that such testimony was not the basis for seeking conclusion that there was no obvious perforation of the bowel. See Exhibit 3 (Junias Desamour, M.D.'s deposition) at p.47, li. 21-24. He then ordered a routine GI consultation with Dr. Sheela to take place at Florida Hospital Orlando, and ordered the decedent to be transferred to that location. See Exhibit 1. This consultation was not ordered by Dr. Desamour on a "STAT" basis. See Exhibit 2 (Paula Lechner, R.N.'s deposition) at p. 29; see also Exhibit 3 (Junias Desamour, M.D.'s deposition) at pp. 65-67. In fact, Dr. Desamour testified that he did not order the GI consult on a "STAT" basis because "there was no need for stat GI consult." Id. Dr. Desamour also ordered a nephrology consult. 10. The decedent was discharged from Florida Hospital Apopka and transferred to Florida Hospital Orlando. She was admitted to Florida Hospital Orlando at approximately 5:30 PM. See Exhibit 6. At 6:11 PM, hospitalist Dr. Suhan Li entered a telephone order for a soap suds enema to be administered to the decedent. Id. 11. At 6:42 PM, Paula Lechner, R.N., ("Nurse Lechner") at Florida Hospital Apopka called Dr. Sheela's answering service to put in the routine request for consult ordered by Dr. Desamour. See Exhibit 2 at pp. 16-17. According to Nurse Lechner's testimony, routine consults are called in throughout the day, not necessarily immediately, in roughly the order they are received. Id. at p. 7. Accordingly, this routine GI consult ordered by Dr. Desamour was called to the answering service nearly five hours after it was ordered, because it was not a STAT order. See Exhibit 1; see also Exhibit 2 at p. 7 (stat orders are prioritized). 12. Additionally, because this was not ordered as a "STAT" consultation by Dr. Desamour, the answering service would not forward the consult to Dr. Sheela until the next morning, as the call was received after hours. See Exhibit 4 (Dr. Sheela's second deposition) at pp. 62-63. recovery of punitive damages. This practice is consistent with Florida Hospital bylaws. Id.; see also Exhibit 5 (excerpt from Florida Hospital bylaws). These bylaws mandate that when a routine consultation is ordered such as the one atissue, the physician has 24 hours to see the patient. See Exhibit 5. 13. Therefore, Dr. Sheela was not notified ofthe decedent's presentation or her admission to Florida Hospital Orlando at any point in time on January 7, 2007. 14. At approximately 9:00 PM, the decedent was seen by Dr. Joseph Warren, a nephrologist. Dr. Warren evaluated the decedent and noted that his plan was to consult with Dr. Stephen Schreiber (a general surgeon) as well as Dr. Sheela. See Exhibit 6. Dr. Warrenpersonally called Dr. Schreiber, the surgeon, to let him know of the decedent's condition. Id. Of note, Dr. Schreiber did not call Dr. Sheela despite the fact that he indicated his plan was to consult with Dr. Sheela. 15. In the early morning hours of January 8, 2007, the decedent's condition deteriorated and she was transferred to the Intensive Care Unit on Dr. Warren's orders. At 7:00 AM, Dr. Schreiber entered an order indicating that his plan was for an exploratory laparotomy, probable colon resection and probable colostomy. Id. 16. Subsequently, the decedent was evaluated by Juliette Harris, an ARNP working for Florida Hospital in the gastroenterology unit. Exhibit 7 (Juliette Harris's deposition) at pp. 48-50. At that time, the decedent was already scheduled for an exploratory laparotomy, and shortly thereafter, she was brought to the operating room for an exploratory laparotomy. Dr. Schreiber noted a perforation of the sigmoid colon and fecal contamination of the peritoneal cavity intraoperatively. The decedent was returned to the recovery room in stable, but extremely critical condition. Dr. Sheela saw the decedent on January 8, 2007, following the surgery, and less than 24 hours after the January 7, 2007 call was made by Nurse Lechner to his answering service. Exhibit 4 at p. 80 and p. 93-95 (decedent seen by Dr. Sheela at 4 or 5 p.m. on January 8, 2007). 17. After the surgery, the decedent became ventilator-dependent. The decedent's family requested that any further aggressive treatments such as breathing assistance via the ventilator be discontinued. The decedent passed away on January 24, 2007. LEGAL STANDARD A. Legal Standard for Reconsidering Interlocutory Orders. 18. It is well established in Florida jurisprudence that a trial court may reconsider any of itsinterlocutory rulings prior to the entry of a final judgment or final order in the cause. See Bettez v. City ofMiami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987). Interlocutoryjudgments or orders made during the progress of a case are always under the control of the court until final disposition of the suit, and they may be modified or rescinded upon sufficient grounds at any time before final judgment. See Holman v.Ford Motor Co., 239 So. 2d 40, 43 (Fla. 1st DCA 1970). As such, the Court has the authority to reconsider its previous ruling granting Plaintiff leave to amend the Complaint to recover punitive damages. B. Standard for Pleading Punitive Damages 19. Punitive damages are a form of extraordinary relief for egregious acts or omissions. BDO Seidman, LLP v.Banco Espirito Santo Intl, 38 So. 3d 874, 877 (Fla. 2d DCA 2010). Under Florida law, the purpose of punitive damages is not to further compensate a plaintiff, but to punish the defendant for its wrongful conduct and to deter similar misconduct by it and other actors in the future. Id., citing W.R. Grace & Co.-Conn. V. Waters, 638 So. 2d 502, 504 (Fla. 1994). 20. The Florida Supreme Court has established standards to be met to justify the imposition of punitive damages upon a defendant: The character of negligence necessary to sustain an award of punitive damages must be of a 'gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them' White Const. Co. Inc. v. Dupont, 455 So.2d 1027, 1029 (Fla. 1984)(overruled on other grounds). The type of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages. Id. (citing Carraway v. Revell, 116 So.2d 16 (Fla. 1959)). 21. Section 768.72(2), Florida Statutes, provides that a defendant may be liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that defendant was personally guilty of "intentional misconduct" or "gross negligence." Subsections (a) and (b) define these terms as follows: "Intentional misconduce means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that itconstituted a conscious disregard or indifference tothe life, safety, or rights of persons exposed to such conduct. Section 768.72(2)(a),(b), Florida Statutes. 22. Under Section 768.72 (1), Florida Statutes: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure." Under Rule 1.190, Florida Rules of Civil Procedure, a motion for leave to amend a complaint for punitive damages "shall make a reasonable showing, by the evidence in the record or evidence to be proffered by claimant, providing a reasonable basis for recovery of such damages." By enacting this provision of the Florida Rules of Civil Procedure, the Florida Supreme Court has determined that defendants have the substantive right not to be subject to punitive damages claims until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages. Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1985). 23. Before aplaintiff may assert a claim of punitive damages, the trial court must make a determination that there is a reasonable basis for recovery of such damages. See Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla. 1995); §768.72 Fla. Stat. The determination must be based on a reasonable showing by evidence in the record or proffer by the claimant. See Strasser v. Yalamanchi, 677 So.2d 22 (Fla. 4th DCA 1996)(citing Globe Newspaper Co. v. King, 658 So.2d 518 (Fla. 1995)); Stephanos v. Paine, 727 So.2d 1075 (Fla. 1999); see also, Estate ofDespain v. Avanate Group, Inc., 900 So.2d 637, 641-643 (Fla. 5th DCA 2005). Evidence in the record would typically include depositions, interrogatories, and requests for admissions that have been filed with the Court. The appellate courts of this State have provided further guidance by elucidating that the "reasonable showine of a basis for recovery for damages is "similar to determining whether a complaint states a cause of action or the record supports a summary judgment." Bistline v. Rogers, 215 So. 3d 607, 610 (Fla. 4th DCA 2017) ( 24. Further, conclusory statements in an affidavit by an expert, alone, are not enough to establish the requisite evidentiary basis to allow an amendment to go forward. See Chrysler Corp. v. Wolmer, 499 So. 2d 823, 826 (Fla. 1986) (finding that despite testimony from numerous experts, the Plaintiff did not make a showing of a reasonable evidentiary basis by clear and convincing evidence). ARGUMENT REGARDING PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES 25. Plaintiff maintains that the record supports an amendment of the Complaint for punitive damages because Plaintiff s expert, David Mayer, M.D. opined that Dr. Sheela's conduct represented a reckless and gross deviation from the applicable standard of care in the following ways: (1) Dr. Sheela neglected to review the decedent's hospital chart when he was allegedly called on January 7, 2007 and/or failed to immediately present to the hospital to care for the decedent; and (2) his delegation of the evaluation of the decedent to the ARNP and almost 24 hour "delay" in arriving at the hospital. See Plaintiff s motion to amend at ¶¶14-15. 26. Each of these opinions are based on, not record evidence, but on erroneous assumptions made by Dr. Mayer and require an impermissible stacking of inferences. First, Dr. Mayer admitted that all ofthe opinions ofwhich he contends Dr. Sheela acted in a reckless manner are based on the assumption that Dr. Sheela actually received a call from his answering service on the night of January 7, 2007. See Exhibit 8 (Dr. Mayer's deposition) at p. 61-62; 67. Second, Dr. Mayer assumed that the consult was a "STAT" consult, or should have been considered a "STAT" consult, and not a routine consult. Id. at p. 56. 27. It has long been established that an inference upon an inference may not be relied upon to establish an essential fact in a case, unless the original inference can be elevated to the dignity of an established fact by illuminating the absence of any reasonable inferences to the contrary. Girdley Constr. Co. v. Ohmstede, 465 So. 2d 594, 596 (Fla. 1st DCA 1985). In other words, an inference recognizable in law cannot be based on evidence that is so uncertain or speculative that it merely raises a possibility. Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th DCA 2008). By design, this rule is intended to protect litigants from verdicts grounded in speculation and conjecture. Id. 28. The evidence in the case supports neither of these assumptions, and in fact, clearly establishes the contrary. First, Dr. Desamour, the physician who ordered the consult with Dr. Sheela, explicitly testified that he did not order a consult with Dr. Sheela as a STAT consult because there was no need for a STAT GI consult. See Exhibit 3 (Junias Desamour, M.D.'s deposition) at pp. 65-67. Thus, Dr. Mayer's assumption that the consult request was ordered as a STAT consult request, this assumption is simply erroneous, and serves as an unreliable basis for any further inferences regarding the negligence (gross or otherwise) of Dr. Sheela. While Dr. Mayer may believe that the consult should have been ordered as a STAT consult, it simply was not intended to be a STAT consult by the ordering physician, and Dr. Sheela would not have had any role in determining how the consult was ordered or called to his answering service. 29. Second, the unrefuted evidence of record establishes that Dr. Sheela did not receive notice regarding Ms. Diaz's presentation to the emergency room or her admission to the hospital on January 7, 2007, and therefore, Dr. Mayer's inference that Dr. Sheela ignored a call that night and abandoned the patient is based upon faulty information. While Nurse Lechner called Dr. Sheela's answering service at 6:42 p.m. on January 7, 2007, Dr. Sheela testified that he had previously instructed his answering service not to forward after hours messages regarding routine consults until the next morning.2 See Exhibit 2 at pp. 16-17 (Lechner testimony regarding call); see also Exhibit 4 at pp. 62-63 (Sheela testimony regarding after hours calls). Nurse Lechner did not testify that she spoke with Dr. Sheela. No other physician testified that he spoke with Dr. Sheela, or even made any attempt to contact Dr. Sheela directly. Accordingly, Dr. Sheela would not have received a call from the answering service regarding the routine consult on the night of January 7, 2007, as assumed by Plaintiff s expert. 30. In an effort to establish that Dr. Sheela did receive a call about the consultation on January 7th, counsel for Plaintiff questioned Dr. Mayer during his deposition regarding the testimony of Juliette Harris, ARNP. Exhibit 7 at pp. 126-130. This testimony was apparently meant to establish that Nurse Harris received the request to evaluate the decedent from Dr. Sheela on January 7, 2007; therefore, Dr. Sheela must have received notification from the answering service. Id. However, not only did Plaintiff s counsel's questions to Dr. Mayer misrepresent the testimony given by Nurse Harris,3 but his line of questioning also completely failed to acknowledge that she categorically denied receiving any request to evaluate the decedent on the night ofthe 7th and instead stated that she was not contacted until the next morning, January 8th. Exhibit 8 at p. 83. 31. Accordingly, there is no record evidence to support the assumption that Dr. Sheela received notification of Dr. Desamour's consult request on January 7, 2012. Even Dr. Mayer admits that if Dr. Sheela was not informed ofthis consult request that night, he could not have responded to it in an improper manner as outlined in his opinions. Exhibit 8 at p. 69-60; 62; 67. 32. Assuming arguendo, that Dr. Sheela did receive notification of the consult request from his answering service on January 7, 2007, Dr. Sheela acted properly in responding to what was a routine consultation request. 33. Dr. Mayer's opinion that Dr. Sheela acted in a reckless manner was based upon the consultation at issue being a STAT consultation. If this was not a STAT consultation, Dr. Mayer conceded that Dr. Sheela would have 24 hours to present and evaluate the decedent. Exhibit 8 at p. 69. 34. The record evidence clearly establishes that this was not a STAT consultation request, 2 Dr. Sheela further testified that if this was a stat consultation, the physician making the consultation would have called him personally, bypassing Nurse Lechner and the answering service from the process. Exhibit 4 at pp. 62-63. 3 It is telling that in the Plaintiff s Motion, the Plaintiff failed to include the portion of Dr. Mayer's deposition but rather a routine consultation and that Dr. Sheela did present to the hospital within 24 hours ofthe request being phoned to his answering service. Dr. Desamour, the ordering physician testified that the consultation was not ordered STAT, as it was not necessary in his opinion. Exhibit 3 at pp. 65- 67. Nurse Lechner testified that Dr. Desamour's order did not have "STAT" written next to the consultation request and accordingly, she did not treat it as a STAT consultation. See Exhibit 1; see also Exhibit 2 at p. 29. Additionally, even Dr. Mayer admitted that the consultation request from Dr. Desamour was processed as a routine consultation and not a STAT consultation. Exhibit 8 at p. 56. 35. In an attempt to bolster his opinion that this consultation should have been considered a STAT consultation, regardless of how it was processed, Dr. Mayer testified that any consultation made for a patient in the emergency room should be considered STAT. Id. at p. 68.4 However, the decedent was not in the emergency room at the time the consultation was called into Dr. Sheela's answering service, but rather, she had been admitted to a patient room. Id. at p. 77-78. Thus, even if all routine consultations are to be deemed STAT when the subject patient is in the emergency room, as asserted by Dr. Mayer, that premise would not apply to the facts of the current case. 36. As Dr. Desamour's consultation request dated January 7, 2007 was not made on a STAT basis, Dr. Sheela's appearance and evaluation of the patient by 4 or 5 p.m. on January 8th complied with Florida Hospital's bylaws and even the standard of care articulated by Dr. Mayer. See Exhibit 5; see also Exhibit 8 at p. 69. Therefore, not only was Dr. Sheela not acting in a reckless manner, but he met the applicable standard of care per Dr. Mayer's own testimony and complied with the hospital's bylaws for the handling of consultation requests. transcript which would illuminate for the Court what information was provided to Dr. Mayer by the Plaintiff. 4 Once again, although Dr. Mayer insisted that this order for a GI consult should have been a "STAT" request, which had to have been made by the hospitalist at Florida Hospital Apopka, Dr. Desamour, he initially refused to admit that he was criticizing Dr. Desamour. Ultimately, he conceded that the failure would be a breach in the standard of care, but the five hour delay between when Dr. Desamour put in the order and when a call was made to Dr. Sheela's 37. Further evidence ofthe reasonable nature of Dr. Sheela's conduct is found by looking to the conduct of Dr. Schreiber, the surgeon who Dr. Warren personally contacted at approximately 9:00 PM on January 7, 2007. The medical records indicate that Dr. Warren contacted Dr. Schreiber to discuss Ms. Diazdeteriorating condition. However, Dr. Schreiber entered no orders and did not come to the hospital to evaluate Ms. Diaz until the morning ofJanuary 8, 2007. Curiously, Dr. Mayer offered no criticisms of a surgeon (in the same specialty in which he previously practiced), who was personally contacted by a physician transferring a patient to the ICU, delaying involvement in the care of the patient until the next day. 38. Florida appellate courts have explicitly held that Fla. Stat. 768.72 requires trial courts to evaluate the evidence of record in determining whether punitive damages may be pled, and not simply take the Plaintiff s allegations as true. See Bistline v. Rogers, 215 So. 3d at 610 (finding that "an evaluation of the evidentiary showing required by section 768.72 does not contemplate the trial court simply accepting the allegations in a complaint or motion to amend as true). The decision of whether conduct set forth in an evidentiary proffer rises to the level permitting punitive damages established by the Florida Legislature is for the court to make independently ofthe opinion testimony of experts. 39. Nothing in Fla. Stat. 768.72 requires a trial court to "rubber stamp" the opinions of a party's experts on punitive damage determinations. Were that the case, the role of the trial court would be eliminated whenever a qualified expert uttered the words "gross negligence or "reckless" when describing a defendant's actions. This clearly was not the intent of the Legislature when it enacted 768.72 requiring a reasonable showing be made to the trial court demonstrating a plaintiff s entitlement to recover punitive damages. answering service did not contribute to the decedent's death. See Exhibit 8 at 64-65. 40. Discovery in this matter has been conducted over more than six years, and the Plaintiff has not been able to establish any conduct on the part of Dr. Sheela which would tend to support any claim that he acted in a manner so negligent so as to support a conviction for criminal manslaughter, the equivalent of gross negligence requisite to recover punitive damages. 41. Thus, Plaintiff s motion, which is supported solely by erroneous factual statements and unfounded inferences made by his retained expert, Dr. Mayer, is insufficient to establish that the Plaintiff is entitled to recover punitive damages. ARGUMENT REGARDING ADMISSIBILITY OF TESTIMONY CRITICIZING DR. SHEELA FOR FAILING TO RESPOND TO A "STAT" CONSULT 42. As set forth above, the record evidence in this matter clearly establishes the following: a) Dr. Desamour did not order the consult by Dr. Sheela as a "STAT" consult; b) Dr. Sheela was not notified of Ms. Diazadmission to the hospital on January 7, 2007, and therefore, c) Dr. Sheela's alleged "failure to respone to the request for consult on January 7, 2007, was not the proximate cause of any harm to the Decedent. 43. Therefore, Dr. Mayer and all other experts and witnesses retained by the Plaintiff, should be precluded from characterizing Dr. Desamour's request for a consult on January 7, 2007 as a "STAT" request or a request for a "STAT" consult. To permit Dr. Mayer or any other witness to characterize the request as such would be to mislead the jury and confuse the issues in this matter. Fla. Stat. 90.403. 44. Further, this Court should strike Dr. Mayer's opinions regarding Dr. Sheela's "breach" ofthe standard of care in failing to respond to a "STAT" consult, and further preclude him or any other expert witness from testifying that Dr. Sheela's alleged "failure' to respond timely to the request for consult placed by Dr. Desamour was aproximate cause of the Decedent's damages, as this testimony is based upon incorrect information and erroneous assumptions. See All American Pool Surface, Inc. v. Jordan, 870 So. 2d 885 (Fla. 3d DCA 2004) (reversing trial court's denial of a motion for new trial where testimony of expert was so based on speculation, conjecture, and incorrect assumptions that it should have been excluded from evidence). 45. Instructive in this matter is the Second District Court of Appeal's recent decision issued in Shartz v. Miulli, 127 So. 3d 613 (Fla. 2d DCA 2013). In Shartz, Mrs. Miulli sued Erwin S. Shartz, M.D. for medical negligence, alleging certain omissions relative to a sports medical release authorizing her son to play baseball proximately caused his death. In particular, it was Ms. Miulli's contention that Dr. Shartz's inaction (i.e. his failure to confirm the Miullis understood Matthew was not to participate in sports before seeing his cardiologist) was the cause ofMatthew' s sudden cardiac arrest and subsequent death. 46. In reversing the trial court's denial of a directed verdict, the Second District found the testimony of the plaintiff s expert was legally insufficient to establish the defendants were a proximate cause ofMatthew's death. The court placed particular emphasis on the lack ofevidence as to what the Miullis would have done had Dr. Shartz "closed the loop" and the resultant unreliability of the Miulli's expert witnessestestimony. Id. at 620-21. While the court acknowledged Matthew "possibly" could have survived if several actions were taken, it similarly acknowledged that "possibly is not the standare governing causation. Id. at 621. The court further found the Miullis' lack of causation evidence "necessarily left [the jury] to speculate and make inferences about...critical issues," requiring entry of a verdict in favor of the defendants. Id. 47. The Shartz court noted that the plaintiffs' retained expert witness, a family medicine physician, provided causation testimony which went "well beyond [her] expertise' and was "totally conclusory in nature, unsupported by any discernable, factually-based chain of underlying reasoning." Id. at 619 (emphasis added). 48. The Shartz court further noted that a "plaintiff in a medical malpractice action must show that what was done or failed to be done probably would have affected the outcome." Shartz 127 So. 3d at 619 (internal citations omitted). It further held that "the plaintiff [in a medical negligence action] must establish causation without an impermissible stacking of inferences." Id. 49. The key finding by the Shartz court which has been iterated by all ofthe courts in the State of Florida is that "[t]he opinion of an expert is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion." Id.; see also Harris v. Josephs of Greater Miami, Inc., 122 So. 2d 561, 562-63 (Fla. 1960) (finding that "[i]t is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.") (internal citations omitted); Schindler Elevator Corp. v. Carvalho, 895 So. 2d 1103, 1106 (finding that the trial court improperly permitted the testimony of an expert who ignored the facts in the record, and whose opinions were wholly unsupported by the facts of the case). 50. As Dr. Mayer's opinions are all based upon the inaccurate factual assumption that the order for a consult should have been, or was a "STAT" consult, they should be stricken and he should be precluded from testifying as such, as his opinions cannot constitute proof ofthe existence of the facts necessary to support his own opinions (e.g. that the consult was a STAT request). 51. Further, even if there is some criticism to be made of Dr. Sheela for failing to come in on the evening of January 7, 2007 to evaluate the Decedent, there would have been no change in the outcome. Dr. Mayer's criticism of Dr. Sheela for failing to come in on January 7, 2007 was that he was not available to evaluate the patient and understand that there was an abdominal catastrophe which required a surgical consult. See Exhibit 8 at 70-72. The call to Dr. Sheela's answering service was made atapproximately the same time a call to the Decedent's nephrologist was made. Dr. Warren, the attending nephrologist, saw the Decedent at approximately 9:00 PM, and noted that he suspected a perforation. He then called the surgeon, Dr. Schrieber, and personally discussed the case with him. At that point, Dr. Schreiber, the surgeon, who would be responsible for repairing a perforation, was apprised of the Decedent's clinical situation, and he elected not to come to the hospital until the morning ofJanuary 8, 2007. As Dr. Mayer noted, a GI physician such as Dr. Sheela cannot repair a bowel perforation; he can only ask a surgeon to come in and see the patient. Id. at 71.5 52. Therefore, to allow Dr. Mayer to provide testimony criticizing Dr. Sheela for failing to come in on the night of January 7, and to advise a jury that such "failurewas a breach in the standard of care which caused or contributed to the Decedent's death, would be to confuse the issues, mislead the jury, and cause substantial and unfair prejudice to the Defendants. As such, this testimony should be excluded from evidence. CONCLUSION 53. When taking into consideration all of the evidence of record in this case, now, at the close of discovery, it is clear that Dr. Sheela's actions in managing the care of the decedent did not rise to the level of willful and wanton disregard for life and safety, or gross negligence which is requisite to sustain a claim for punitive damages. Further, it is evident that the Plaintiff will not be 5 Dr. Mayer also offered criticism by indicating that if Dr. Sheela had come in when he received the "STAT" consult, he could have somehow prevented the soap suds enema ordered by Dr. Li from being administered at approximately 8:00 PM. However, he stated that the soap suds enema did not cause the perforation and therefore did not cause the Decedent's death. See Exhibit 8 at 101-105. However, it should be noted that a call was made for a consult to a nephrologist at approximately the same time the call for a consult was made to Dr. Sheela, and the nephrologist did not able to prove such conduct by clear and convincing evidence. As such, the Plaintiff s claim for punitive damages should be stricken, and this Court should reverse its decision to allow the Plaintiff to plead punitive damages. 54. Further, introduction of evidence or testimony characterizing the January 7, 2007 request for a consult from Dr. Sheela made by Dr. Desamour as "STAT" in any way would be misleading to a jury, and would cause substantial and unfair prejudice to the Defendants. 55. Likewise, permitting Dr. Mayer to testify that Dr. Sheela was negligent in any way by failing to present to the hospital on the night of January 7, when there is no evidence that he was notified ofthe Decedent's admission to the hospital the same night, would be unfairly prejudicial and misleading to the jury. The testimony would be based on unreliable and erroneous factual information. WHEREFORE, the Defendants respectfully request that this Court deny Plaintiff s request to plead or seek punitive damages, and preclude the Plaintiff from introducing testimony characterizing the consult as a request for a "STAT" consult, or criticizing Dr. Sheela for failing to come to the hospital on the night of January 7, 2007, along with any and all other reliefthis Court may deem just and proper. arrive at thehospital in time to prevent the soap suds enema either. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy