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IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
CASE NO. 2008-CA-011228-O
DIVISION: 39
MARCELO DIAZ, as Personal
Lydia Gardner
Representative of the Estate of HERMINIA
DIAZ,
Plaintiff,
2012 Dec 14 04:21 PM
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,
eFiled in the Office of Clerk of Court, Orange County Florida
JUNIAS DESAMOUR, M.D., and MID-
FLORIDA HOSPITAL SPECIALISTS,
P.A.,
Defendants.
/
DEFENDANT’S, ADVENTIST HEALTH SYSTEM/SUNBELT, INC., d/b/a
FLORIDA HOSPITAL ORLANDO and d/b/a FLORIDA HOSPITAL APOPKA,
MOTION IN LIMINE 2 –CONFINED TO PLEADINGS
COMES NOW, the Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC.,
d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, by and
through itsundersigned counsel, pursuant to the Florida Rules of Civil Procedure, and hereby
requests an Order in Limine precluding counsel from introducing into evidence, mentioning,
referring to, interrogating concerning, or attempting to convey to the jury any of the following
matters, in any manner, either directly or indirectly, on voir dire or otherwise, and in support
thereof, states as follows:
1. This is a wrongful death action based in alleged medical negligence.
2. On or about February 8, 2011, Plaintiff filed an eight (8) Count Third Amended
Complaint against the collective Defendants for care and treatment rendered to HERMINIA
DIAZ (“the Decedent”) at FLORIDA HOSPITAL APOPKA and at FLORIDA HOSPITAL
ORLANDO.
3. The Plaintiff asserts that on January 4, 2007, the Decedent underwent an
esophagogastroduodenoscopy and colonoscopy, performed by HARINATH SHEELA, M.D.
(“DR. SHEELA”) at FLORIDA HOSPITAL ORLANDO. The Plaintiff further asserts that the
Decedent was subsequently discharged, and then on January 7, 2007, presented to FLORIDA
HOSPITAL APOPKA with severe abdominal pain. Later that day, she was transferred to
FLORIDA HOSPITAL ORLANDO, where she remained until her death on January 24, 2007.
4. The Plaintiff alleges that the Defendants, including FLORIDA HOSPITAL
APOPKA and FLORIDA HOSPITAL ORLANDO’S nurses and employees, failed to timely
assess, diagnose, and treat the Decedent’s perforated intestine – an alleged known complication
of the surgeries she underwent at FLORIDA HOSPITAL ORLANDO on January 4, 2007. The
Plaintiff contends that as a result of the Defendants’negligence, the Decedent suffered massive
sepsis, and subsequently died.
5. Notably, the Third Amended Complaint contains absolutely no allegations or
claims of negligence on the part of Joseph Warren, M.D., the Decedent’s treating nephrologist at
FLORIDA HOSPITAL ORLANDO, or on the part of Stephen Schreiber, M.D., the Decedent’s
treating general surgeon at FLORIDA HOSPITAL ORLANDO. Moreover, the Third Amended
Complaint contains absolutely no allegations or claims of alleged vicarious liability on the part
of this Defendant for said physicians.
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6. Trial in this matter is set for January 7, 2013.
7. The addition of any claims or allegations outside of what has been pled by
Plaintiff in the pleadings – at such a late point in time in this litigation – would constitute an
unfair surprise to this Defendant, and would ultimately operate to cause undue prejudice to this
Defendant in its defense of this case.
8. Moreover, the reference at trial to alleged negligence on the part of Dr. Warren or
Dr. Schreiber, or to alleged vicarious liability on the part of this Defendant for said physicians, is
wholly irrelevant to the claims asserted by Plaintiff against Defendants, and would only serve to
confuse the issues before the jury. See § 90.403, Fla. Stat. (2012).
9. Accordingly, this Court should preclude any reference to or allegations
concerning issues or claims that have not been raised by the Parties in their pleadings –
including, but not limited to, any alleged negligence on the part of Dr. Warren or Dr. Schreiber
or any alleged vicarious liability on the part of this Defendant for said physicians.
WHEREFORE, this Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC.,
d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA,
respectfully requests that this Court enter an Order in Limine confining the Parties to the
pleadings, and granting any other relief this Court deems appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 14th day of December, 2012, I electronically served
and electronically filed the foregoing with the Clerk of the Courts by using the ECF system
which will send a notice of electronic filing to the following: CARLOS R. DIEZ-ARGUELLES,
ESQUIRE, Diez-Arguelles & Tejedor, P.A., mail@theorlandolawyers.com,
Margie@theorlandolawyers.com, Bernadette@theorlandolawyers.com, MARY J. HALL,
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ESQUIRE, McEwan, Martinez & Dukes, P.A., NOS@mmdorl.com; ROGELIO J. FONTELA,
ESQUIRE, Dennis, Jackson, Martin & Fontela, P.A., Dennis, Jackson, Martin & Fontela, P.A.
roger@djmf-law.com, ben@djmf-law.com, jessica@djmf-law.com.
/s/ John J. Tress, III
PATRICK H. TELAN, ESQUIRE
Florida Bar No. 973874
JOHN J. TRESS, III, ESQUIRE
Florida Bar No. 183751
Grower, Ketcham, Rutherford,
Bronson, Eide & Telan, P.A.
PO Box 538065
Orlando, FL 32853-8065
Phone: (407) 423-9545
Fax: (407) 425-7104
Attorneys for Defendant, ADVENTIST HEALTH
SYSTEM/SUNBELT, INC.
Primary Email: phtelan@growerketcham.com
1st Secondary: enotice@growerketcham.com
2nd Secondary: cboals@growerketcham.com
09934/959
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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO. 2008-CA-011228-O DIVISION: 39 MARCELO DIAZ, as Personal Lydia Gardner Representative of the Estate of HERMINIA DIAZ, Plaintiff, 2012 Dec 14 04:21 PM 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, eFiled in the Office of Clerk of Court, Orange County Florida JUNIAS DESAMOUR, M.D., and MID- FLORIDA HOSPITAL SPECIALISTS, P.A., Defendants. / DEFENDANT’S, ADVENTIST HEALTH SYSTEM/SUNBELT, INC., d/b/a FLORIDA HOSPITAL ORLANDO and d/b/a FLORIDA HOSPITAL APOPKA, MOTION IN LIMINE 2 –CONFINED TO PLEADINGS COMES NOW, the Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC., d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, by and through itsundersigned counsel, pursuant to the Florida Rules of Civil Procedure, and hereby requests an Order in Limine precluding counsel from introducing into evidence, mentioning, referring to, interrogating concerning, or attempting to convey to the jury any of the following matters, in any manner, either directly or indirectly, on voir dire or otherwise, and in support thereof, states as follows: 1. This is a wrongful death action based in alleged medical negligence. 2. On or about February 8, 2011, Plaintiff filed an eight (8) Count Third Amended Complaint against the collective Defendants for care and treatment rendered to HERMINIA DIAZ (“the Decedent”) at FLORIDA HOSPITAL APOPKA and at FLORIDA HOSPITAL ORLANDO. 3. The Plaintiff asserts that on January 4, 2007, the Decedent underwent an esophagogastroduodenoscopy and colonoscopy, performed by HARINATH SHEELA, M.D. (“DR. SHEELA”) at FLORIDA HOSPITAL ORLANDO. The Plaintiff further asserts that the Decedent was subsequently discharged, and then on January 7, 2007, presented to FLORIDA HOSPITAL APOPKA with severe abdominal pain. Later that day, she was transferred to FLORIDA HOSPITAL ORLANDO, where she remained until her death on January 24, 2007. 4. The Plaintiff alleges that the Defendants, including FLORIDA HOSPITAL APOPKA and FLORIDA HOSPITAL ORLANDO’S nurses and employees, failed to timely assess, diagnose, and treat the Decedent’s perforated intestine – an alleged known complication of the surgeries she underwent at FLORIDA HOSPITAL ORLANDO on January 4, 2007. The Plaintiff contends that as a result of the Defendants’negligence, the Decedent suffered massive sepsis, and subsequently died. 5. Notably, the Third Amended Complaint contains absolutely no allegations or claims of negligence on the part of Joseph Warren, M.D., the Decedent’s treating nephrologist at FLORIDA HOSPITAL ORLANDO, or on the part of Stephen Schreiber, M.D., the Decedent’s treating general surgeon at FLORIDA HOSPITAL ORLANDO. Moreover, the Third Amended Complaint contains absolutely no allegations or claims of alleged vicarious liability on the part of this Defendant for said physicians. 2 6. Trial in this matter is set for January 7, 2013. 7. The addition of any claims or allegations outside of what has been pled by Plaintiff in the pleadings – at such a late point in time in this litigation – would constitute an unfair surprise to this Defendant, and would ultimately operate to cause undue prejudice to this Defendant in its defense of this case. 8. Moreover, the reference at trial to alleged negligence on the part of Dr. Warren or Dr. Schreiber, or to alleged vicarious liability on the part of this Defendant for said physicians, is wholly irrelevant to the claims asserted by Plaintiff against Defendants, and would only serve to confuse the issues before the jury. See § 90.403, Fla. Stat. (2012). 9. Accordingly, this Court should preclude any reference to or allegations concerning issues or claims that have not been raised by the Parties in their pleadings – including, but not limited to, any alleged negligence on the part of Dr. Warren or Dr. Schreiber or any alleged vicarious liability on the part of this Defendant for said physicians. WHEREFORE, this Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC., d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, respectfully requests that this Court enter an Order in Limine confining the Parties to the pleadings, and granting any other relief this Court deems appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 14th day of December, 2012, I electronically served and electronically filed the foregoing with the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to the following: CARLOS R. DIEZ-ARGUELLES, ESQUIRE, Diez-Arguelles & Tejedor, P.A., mail@theorlandolawyers.com, Margie@theorlandolawyers.com, Bernadette@theorlandolawyers.com, MARY J. HALL, 3 ESQUIRE, McEwan, Martinez & Dukes, P.A., NOS@mmdorl.com; ROGELIO J. FONTELA, ESQUIRE, Dennis, Jackson, Martin & Fontela, P.A., Dennis, Jackson, Martin & Fontela, P.A. roger@djmf-law.com, ben@djmf-law.com, jessica@djmf-law.com. /s/ John J. Tress, III PATRICK H. TELAN, ESQUIRE Florida Bar No. 973874 JOHN J. TRESS, III, ESQUIRE Florida Bar No. 183751 Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A. PO Box 538065 Orlando, FL 32853-8065 Phone: (407) 423-9545 Fax: (407) 425-7104 Attorneys for Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. Primary Email: phtelan@growerketcham.com 1st Secondary: enotice@growerketcham.com 2nd Secondary: cboals@growerketcham.com 09934/959 4