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Filing # 58864868 E-Filed 07/11/2017 03:55:59 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
MARCELO DIAZ, as Personal Representative
of the Estate of HERMINIA DIAZ,
Plaintiff,
CASE NO.: 2008-CA-11228-0
vs.
HARINATH SHEELA, M.D., DIGESTIVE AND
LIVER CENTER OF FLORIDA, P.A.; ADVENTIST
HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA
HOSPITAL ORLANDO and d/b/a FLORIDA
HOSPITAL APOPKA; JUNIAS DESAMOUR, M.D.;
MID-FLORIDA HOSPITAL SPECIALISTS, P.A.
Defendants.
___________________________________________/
DEFENDANTS HARINATH SHEELA, M.D., AND DIGESTIVE AND
LIVER CENTER OF FLORIDA, P.A’S NINTH MOTION IN LIMINE TO PRECLUDE
EVIDENCE OF MEDICAL BILLS NOT CHARGED TO ESTATE
COME NOW, the Defendants, Harinath Sheela, M.D. and Digestive and Liver Center of
Florida, P.A. (“DLC”), by and through their undersigned counsel, and file this Motion in Limine
requesting that the Court preclude the introduction of evidence of medical bills which were not
paid by the Plaintiff or charged to the Estate of Herminia Diaz, and in support thereof, states:
1. This is a claim brought pursuant to the Florida Wrongful Death Act. As part of his
damages, the Plaintiff seeks recovery of medical bills paid for treatment rendered to the Decedent.
The Plaintiff intends to introduce evidence of these medical bills at the time of trial. The Plaintiff
also seeks to recover funeral expenses incurred on behalf of the decedent as a basis for damages
in this suit.
2. The Decedent died on January 24, 2007. On March 6, 2009, an Estate was opened
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by the Plaintiff herein. The case number for the probate matter is 48-2009-CP-000436-O. As part
of the Estate proceeding, notice was given to any potential creditors of the Estate. See Composite
Exhibit “A.”
3. Florida law sets forth which damages are recoverable by a decedent’s survivor or
by the Personal Representative of a decedent’s estate in wrongful death actions. See Fla. Stat.
768.21. According to Florida’ Wrongful Death Act, a survivor of a decedent may recover medical
or funeral expenses due to the decedent’s injury or death “that have become a charge against her
or his estate or that were paid on behalf of the decedent.” Fla. Stat. 768.21(6)(b).
4. Florida law has long held that the personal representative and potential creditors of
an Estate are required to adhere to the requirements set forth in the Florida Probate Code. See Fla.
Stat. 733.2121, 733.701, 733.702, 733.710. After the Notice to Creditors has been published, each
creditor must file a Statement of Claim in the probate proceeding within the requisite three (3)
months, or thirty (30) days from the receipt of actual notice. Fla. Stat. 733.702(1). If a creditor fails
to timely file a claim in the probate proceeding, its claim is not binding on the Estate or the personal
representative. Fla. Stat. 733.202(1). Fla. Stat. 733.202(1) states:
If not barred by s. 733.710, no claim or demand against the decedent’s estate…is binding
on the estate, on the personal representative, or on any beneficiary unless filed in the
probate proceeding on or before the later of the date that is 3 months after the time of the
first publication of the notice to creditors or, as to any creditor required to be served with
a copy of the notice to creditors, 30 days after the date of service on the creditor….
5. More importantly, “[n]otwithstanding any other provision of the code, two (2) years
after the death of a person, neither the decedent’s estate, the personal representative, if any, nor
the beneficiaries shall be liable for any or cause of action against the decedent….” Fla. Stat.
733.710(1). The Florida Supreme Court in May v. Illinois v. Nat’l Ins. Co., 771 So. 2d 1143 (Fla.
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2000) held that Section 733.702 operates as a statute of limitations, while Section 733.710 is a
statute of non-claim (repose).
6. Finally, Section 768.21(7) states that “All awards for the decedent’s estate are
subject to the claims of creditors who have complied with the requirements of probate law
concerning claims.”
7. According to the probate file of the Estate of Herminia Diaz, the only claim filed
against the Estate was that levied by the Florida Agency for Health Care Administration
(“AHCA”) on March 27, 2009. See Exhibit “B.” The total amount of the claim was $47,603.94,
and the basis for the claim was the amounts paid by Florida Medicaid on behalf of the decedent
after age 55.
8. On April 13, 2009, the Plaintiff filed an Objection to the Claim by AHCA. See
Exhibit “C.”
9. Subsequently, pursuant to Fla. Stat. 733.705, AHCA instituted an action in the
County Court in and for Orange County, Florida, Case No. 09-CA-14869 to pursue recovery of
the amount claimed against the Estate. See Exhibit “D.”
10. On June 24, 2009, AHCA voluntarily dismissed its action with prejudice, forever
barring it from recovering the claimed amount from the Estate. See Exhibit “E.”
11. A review of the docket for the probate action for the Estate of Herminia Diaz does
not indicate that there were any other claims made against the Estate.
WHEREFORE, the Defendants, Harinath Sheela, M.D. and Digestive and Liver Center of
Florida, P.A., respectfully request that this Court enter an Order in Limine precluding the Plaintiff
from introducing any medical bills which were not paid by the Plaintiff or charged to the Estate of
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Herminia Diaz into evidence.
DENNIS, JACKSON, MARTIN
& FONTELA, P.A.
By:______________________________
ROGELIO J. FONTELA (FBN: 0956473)
SHYLIE A. BANNON (FBN: 067886)
roger@djmf-law.com
shylie@djmf-law.com
1591 Summit Lake Drive, Suite 200
Tallahassee, Florida 32317
Telephone: (850) 422-3345
Facsimile: (850) 422-1325
Attorneys for Defendants, Harinath Sheela, M.D. and
Digestive and Liver Center of Florida, P.A.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by ECF
system this 11th day of July, 2017 to: Carlos R. Diez-Arguelles, Esquire, Diez-Arguelles &
Tejedor, 505 North Mills Avenue, Orlando, Florida 32803.
DENNIS, JACKSON, MARTIN
& FONTELA, P.A.
By:______________________________
ROGELIO J. FONTELA (FBN: 0956473)
SHYLIE A. BANNON (FBN: 067886)
roger@djmf-law.com
shylie@djmf-law.com
1591 Summit Lake Drive, Suite 200
Tallahassee, Florida 32317
Telephone: (850) 422-3345
Facsimile: (850) 422-1325
Attorneys for Defendants, Harinath Sheela, M.D. and
Digestive and Liver Center of Florida, P.A.
4
Preview
Filing # 58864868 E-Filed 07/11/2017 03:55:59 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA MARCELO DIAZ, as Personal Representative of the Estate of HERMINIA DIAZ, Plaintiff, CASE NO.: 2008-CA-11228-0 vs. HARINATH SHEELA, M.D., DIGESTIVE AND LIVER CENTER OF FLORIDA, P.A.; ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL ORLANDO and d/b/a FLORIDA HOSPITAL APOPKA; JUNIAS DESAMOUR, M.D.; MID-FLORIDA HOSPITAL SPECIALISTS, P.A. Defendants. ___________________________________________/ DEFENDANTS HARINATH SHEELA, M.D., AND DIGESTIVE AND LIVER CENTER OF FLORIDA, P.A’S NINTH MOTION IN LIMINE TO PRECLUDE EVIDENCE OF MEDICAL BILLS NOT CHARGED TO ESTATE COME NOW, the Defendants, Harinath Sheela, M.D. and Digestive and Liver Center of Florida, P.A. (“DLC”), by and through their undersigned counsel, and file this Motion in Limine requesting that the Court preclude the introduction of evidence of medical bills which were not paid by the Plaintiff or charged to the Estate of Herminia Diaz, and in support thereof, states: 1. This is a claim brought pursuant to the Florida Wrongful Death Act. As part of his damages, the Plaintiff seeks recovery of medical bills paid for treatment rendered to the Decedent. The Plaintiff intends to introduce evidence of these medical bills at the time of trial. The Plaintiff also seeks to recover funeral expenses incurred on behalf of the decedent as a basis for damages in this suit. 2. The Decedent died on January 24, 2007. On March 6, 2009, an Estate was opened 1 by the Plaintiff herein. The case number for the probate matter is 48-2009-CP-000436-O. As part of the Estate proceeding, notice was given to any potential creditors of the Estate. See Composite Exhibit “A.” 3. Florida law sets forth which damages are recoverable by a decedent’s survivor or by the Personal Representative of a decedent’s estate in wrongful death actions. See Fla. Stat. 768.21. According to Florida’ Wrongful Death Act, a survivor of a decedent may recover medical or funeral expenses due to the decedent’s injury or death “that have become a charge against her or his estate or that were paid on behalf of the decedent.” Fla. Stat. 768.21(6)(b). 4. Florida law has long held that the personal representative and potential creditors of an Estate are required to adhere to the requirements set forth in the Florida Probate Code. See Fla. Stat. 733.2121, 733.701, 733.702, 733.710. After the Notice to Creditors has been published, each creditor must file a Statement of Claim in the probate proceeding within the requisite three (3) months, or thirty (30) days from the receipt of actual notice. Fla. Stat. 733.702(1). If a creditor fails to timely file a claim in the probate proceeding, its claim is not binding on the Estate or the personal representative. Fla. Stat. 733.202(1). Fla. Stat. 733.202(1) states: If not barred by s. 733.710, no claim or demand against the decedent’s estate…is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor…. 5. More importantly, “[n]otwithstanding any other provision of the code, two (2) years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any or cause of action against the decedent….” Fla. Stat. 733.710(1). The Florida Supreme Court in May v. Illinois v. Nat’l Ins. Co., 771 So. 2d 1143 (Fla. 2 2000) held that Section 733.702 operates as a statute of limitations, while Section 733.710 is a statute of non-claim (repose). 6. Finally, Section 768.21(7) states that “All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.” 7. According to the probate file of the Estate of Herminia Diaz, the only claim filed against the Estate was that levied by the Florida Agency for Health Care Administration (“AHCA”) on March 27, 2009. See Exhibit “B.” The total amount of the claim was $47,603.94, and the basis for the claim was the amounts paid by Florida Medicaid on behalf of the decedent after age 55. 8. On April 13, 2009, the Plaintiff filed an Objection to the Claim by AHCA. See Exhibit “C.” 9. Subsequently, pursuant to Fla. Stat. 733.705, AHCA instituted an action in the County Court in and for Orange County, Florida, Case No. 09-CA-14869 to pursue recovery of the amount claimed against the Estate. See Exhibit “D.” 10. On June 24, 2009, AHCA voluntarily dismissed its action with prejudice, forever barring it from recovering the claimed amount from the Estate. See Exhibit “E.” 11. A review of the docket for the probate action for the Estate of Herminia Diaz does not indicate that there were any other claims made against the Estate. WHEREFORE, the Defendants, Harinath Sheela, M.D. and Digestive and Liver Center of Florida, P.A., respectfully request that this Court enter an Order in Limine precluding the Plaintiff from introducing any medical bills which were not paid by the Plaintiff or charged to the Estate of 3 Herminia Diaz into evidence. DENNIS, JACKSON, MARTIN & FONTELA, P.A. By:______________________________ ROGELIO J. FONTELA (FBN: 0956473) SHYLIE A. BANNON (FBN: 067886) roger@djmf-law.com shylie@djmf-law.com 1591 Summit Lake Drive, Suite 200 Tallahassee, Florida 32317 Telephone: (850) 422-3345 Facsimile: (850) 422-1325 Attorneys for Defendants, Harinath Sheela, M.D. and Digestive and Liver Center of Florida, P.A. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by ECF system this 11th day of July, 2017 to: Carlos R. Diez-Arguelles, Esquire, Diez-Arguelles & Tejedor, 505 North Mills Avenue, Orlando, Florida 32803. DENNIS, JACKSON, MARTIN & FONTELA, P.A. By:______________________________ ROGELIO J. FONTELA (FBN: 0956473) SHYLIE A. BANNON (FBN: 067886) roger@djmf-law.com shylie@djmf-law.com 1591 Summit Lake Drive, Suite 200 Tallahassee, Florida 32317 Telephone: (850) 422-3345 Facsimile: (850) 422-1325 Attorneys for Defendants, Harinath Sheela, M.D. and Digestive and Liver Center of Florida, P.A. 4