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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
MARCELO DIAZ, as Personal
Representative of the Estate of HERMINIA
Lydia Gardner
DIAZ,
Plaintiff,
vs.
2012 Dec 14 04:21 PM
HARINATH SHEELA, M.D.; DIGESTIVE
AND LIVER CENER 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., and MID-
eFiled in the Office of Clerk of Court, Orange County Florida
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 1 - OMNIBUS
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:
I. REFERRING TO PLAINTIFF, DECEDENT AND/OR THEIR FAMILY
MEMBERS AS “VICTIMS”
1. Any reference to MARCELO DIAZ (“the Plaintiff”), HERMINIA DIAZ (“the
Decedent”), and/or their family members as “victims” incorrectly implies the existence of a
“criminal” legal proceeding, and only serves to improperly influence and inflame the jurors,
including potentially encouraging them to violate their oath of not letting bias, sympathy, or
prejudice play any part in their deliberations. The terms “injured party”or “Plaintiff”–or even
Plaintiff’s name, itself – are viable alternatives that do not improperly invoke sympathy. See,
e.g., Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 426 (1990) (inflammatory statements are
inadmissible and inherently prejudicial because they urge a verdict improperly based on passion
and prejudice). Accordingly, this Court should preclude any reference to Plaintiff, Decedent
and/or their family members as “victims.”
II. EMOTION OF PLAINTIFF’S COUNSEL
2. Plaintiff’s counsel may try to elicit sympathy from the jury and/or interject
personal beliefs or opinions into this case, as these types of issues have been raised by Plaintiff’s
counsel during expert depositions and discovery. This type of conduct is impermissible and
prohibited by Florida Rules of Professional Conduct 4-3.5(a) and 4-3.4(e). Plaintiff’s counsel’s
own personal experience, beliefs or emotional state with respect to the circumstances of the
instant case are wholly irrelevant to the claims asserted against this Defendant, and would not
tend to prove or disprove a material fact. See §§ 90.401-90.402, Fla. Stat. Even ifsomehow
relevant, the probative value, if any at all, of Plaintiff’s counsel’s personal beliefs or overly
emotional state is substantially outweighed by the danger of unfair prejudice to this Defendant,
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as well as the danger of misleading the jury. See id. at § 90.403. Accordingly, Plaintiff’s
counsel should not be permitted to make any such overly emotional gestures during trial.
III. ASKING THE JURY TO “SEND A MESSAGE”OR BE THE “CONSCIENCE OF
THE COMMUNITY,”ETC.
3. This Court should preclude Plaintiff’s counsel from urging jurors during voir dire,
opening statement or closing argument to “send a message”to the Defendants, or “to act as the
conscience of the community”with regard to the treatment of the Decedent or with regard to any
other matters at issue in this case. These types of arguments, and other similar arguments, are
improper and unduly prejudicial. See Airport Rent-A-Car. Inc. v. Lewis, 701 So. 2d 893 (Fla.
4th DCA 1997); see also § 90.403, Fla. Stat. (2012).
IV. ETHICAL OR MORAL OBLIGATION
4. This Court should preclude any references to ethical and moral obligations on the
part of the Defendants. Any such references only serve to improperly influence and inflame the
jurors, including potentially encouraging them to violate their oath of not letting bias, sympathy,
or prejudice play any part in their deliberations. See Metro. Dade County v. Duhon, 780 So. 2d
328, 333 (Fla. 3d DCA 2001).
V. REQUESTS BY DEFENDANTS TO EXCLUDE CERTAIN EVIDENCE
5. This Court should preclude any references to these Defendants’ requests for
Orders in Limine or the exclusion of evidence, testimony or argument at trial. Any such
references would only serve to confuse the issues before the jury, mislead the jury, and would be
unduly prejudicial to these Defendants. See § 90.403, Fla. Stat. (2012).
3
VI. IMPROPER EXPERT TESTIMONY AS TO ULTIMATE ISSUE
6. This Court should preclude any attempt by Plaintiff to elicit or utilize expert
testimony to reflect that Defendants were negligent with respect to the medical care and
treatment they provided to the Decedent. This is a legal issue that is solely reserved for the
jury’s determination. See Estate of Murray ex rel. Murray v. Delta Health Group, Inc., 30 So. 2d
576 (Fla. 2d DCA 2010).
7. Under Florida law, expert testimony is admissible to the extent that it “will assist
the trier of fact in understanding the evidence or in determining a fact in issue . . . .” See §
90.702, Fla. Stat. (2012). While expert testimony as to an ultimate issue is admissible under
section 90.703, Florida Statutes (2012), expert testimony is not admissible if it: (1) states matters
that are within the trier of fact’s common understanding; (2) renders a legal opinion based on a
set of facts; or (3) simply tells the trier of fact how to decide the case. See County of Volusia v.
Kemp, 764 So. 2d 770, 773 (Fla. 5th DCA 2000).
8. In Town of Palm Beach v. Palm Beach County, which involved tax benefits
received by the City of Palm Beach, an expert was permitted to testify that the benefits received
by the municipality were not “real and substantial.” See 460 So. 2d 879, 882 (Fla. 1984). The
Florida Supreme Court held that while the expert could have properly testified as to the
importance of the received benefits, he could not simply tell the trier of fact how it should
decide. See id. By way of illustration, the Florida Supreme Court cited with approval Gifford v.
Galaxie Homes, Inc., 223 So. 2d 108 (Fla. 2d DCA 1969), a case involving a claim for negligent
construction, where it was found that while an expert may testify as to whether a building was
“constructed and maintained according to reasonably safe construction and engineering
standards,”the expert may not simply opine that the building was negligently constructed. See
4
Town of Palm Beach, 460 So. 2d at 882. The court acknowledged that “while this is to some
degree a matter of semantics, we find the distinction necessary. Otherwise, the trier of fact is
being directed to arrive at a conclusion which it should be free to determine independently from
the facts presented.” See id. (citation omitted).
9. This rule has also been applied in cases where an expert witness has been retained
to testify as to the application of the law. For example, in Seibert v. Bayport Beach & Tennis
Club Ass’n, a condominium association sued the architect of the development claiming that the
design of the exits of their units failed to comply with the applicable building code. See 573 So.
2d 889 (Fla. 3d DCA 1990). The parties presented competing experts who simply testified as to
how the code should be interpreted, and on appeal, the court reversed, holding that “[a]n expert
should not be allowed to testify concerning questions of law.” See id. at 891.
10. The rules against permitting an expert witness to simply provide his or her
opinion as to an issue to be decided by the trier of fact, or to testify as to questions of law, have
been uniformly followed in Florida. See, e.g., Murray, 30 So. 2d 576 (improper for trial court to
permit portions of expert’s opinion opining regarding legal standards of negligence); Schneer v.
Allstate Indemnity Co., 767 So. 2d 485 (Fla. 3d DCA 2000) (trial court correctly excluded
insurance expert witness whose proffered testimony demonstrated that he simply intended to
opine that the insured’s actions did not constitute fraud); Kemp, 764 So. 2d 770 (in malicious
prosecution case, trial court abused its discretion in permitting expert witness to testify that the
county’s conduct in prosecuting the plaintiff was unconstitutional and to interject his opinions of
reports, depositions and trial testimony in the criminal case); 3-M Corp. v. Brown, 475 So. 2d
994 (Fla. 1st DCA 1985) (in product defect case expert witness may not simply testify that the
product is defective).
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11. In the instant case, it is within the sole province of the jury to determine the legal
issue of whether the Defendants were negligent, and therefore, no expert should be permitted to
opine as to that issue. Furthermore, no expert should be permitted to testify as to his or her
interpretation of any federal or state statutes, including Chapter 766, Florida Statutes, or as to any
other question of law.
VII. IMPEACHMENT MATERIALS
12. This Court should preclude any evidence or testimony that may be used for
impeachment purposes, but that were not previously disclosed to the Defendants. Any such
evidence or testimony would cause an unfair surprise and undue prejudice to these Defendants. See
§ 90.403, Fla. Stat. (2012).
VIII. COMMENTS CONCERNING WHETHER ANY OF THE HEALTHCARE
PROVIDERS WOULD DO THINGS DIFFERENTLY TODAY
13. This Court should preclude any references or questions related to whether or not
any healthcare providers involved in providing care and treatment to the Decedent would do
things differently today. Said testimony would be speculative, fraught with conjecture, and does
not bear on any issues before this Court. Moreover, the probative value, if any, of said testimony
is substantially outweighed by its unduly prejudicial effect on the jury. See § 90.403, Fla. Stat.
(2012).
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 granting this Motion and any other
relief this Court deems appropriate.
6
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,
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
Attorney for Defendant, ADVENTIST HEALTH
SYSTEM/SUNBELT, INC.
Primary Email: phtelan@growerketcham.com
st
1 Secondary: enotice@growerketcham.com
2nd Secondary: cboals@growerketcham.com
09934/929
7
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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 MARCELO DIAZ, as Personal Representative of the Estate of HERMINIA Lydia Gardner DIAZ, Plaintiff, vs. 2012 Dec 14 04:21 PM HARINATH SHEELA, M.D.; DIGESTIVE AND LIVER CENER 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., and MID- eFiled in the Office of Clerk of Court, Orange County Florida 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 1 - OMNIBUS 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: I. REFERRING TO PLAINTIFF, DECEDENT AND/OR THEIR FAMILY MEMBERS AS “VICTIMS” 1. Any reference to MARCELO DIAZ (“the Plaintiff”), HERMINIA DIAZ (“the Decedent”), and/or their family members as “victims” incorrectly implies the existence of a “criminal” legal proceeding, and only serves to improperly influence and inflame the jurors, including potentially encouraging them to violate their oath of not letting bias, sympathy, or prejudice play any part in their deliberations. The terms “injured party”or “Plaintiff”–or even Plaintiff’s name, itself – are viable alternatives that do not improperly invoke sympathy. See, e.g., Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 426 (1990) (inflammatory statements are inadmissible and inherently prejudicial because they urge a verdict improperly based on passion and prejudice). Accordingly, this Court should preclude any reference to Plaintiff, Decedent and/or their family members as “victims.” II. EMOTION OF PLAINTIFF’S COUNSEL 2. Plaintiff’s counsel may try to elicit sympathy from the jury and/or interject personal beliefs or opinions into this case, as these types of issues have been raised by Plaintiff’s counsel during expert depositions and discovery. This type of conduct is impermissible and prohibited by Florida Rules of Professional Conduct 4-3.5(a) and 4-3.4(e). Plaintiff’s counsel’s own personal experience, beliefs or emotional state with respect to the circumstances of the instant case are wholly irrelevant to the claims asserted against this Defendant, and would not tend to prove or disprove a material fact. See §§ 90.401-90.402, Fla. Stat. Even ifsomehow relevant, the probative value, if any at all, of Plaintiff’s counsel’s personal beliefs or overly emotional state is substantially outweighed by the danger of unfair prejudice to this Defendant, 2 as well as the danger of misleading the jury. See id. at § 90.403. Accordingly, Plaintiff’s counsel should not be permitted to make any such overly emotional gestures during trial. III. ASKING THE JURY TO “SEND A MESSAGE”OR BE THE “CONSCIENCE OF THE COMMUNITY,”ETC. 3. This Court should preclude Plaintiff’s counsel from urging jurors during voir dire, opening statement or closing argument to “send a message”to the Defendants, or “to act as the conscience of the community”with regard to the treatment of the Decedent or with regard to any other matters at issue in this case. These types of arguments, and other similar arguments, are improper and unduly prejudicial. See Airport Rent-A-Car. Inc. v. Lewis, 701 So. 2d 893 (Fla. 4th DCA 1997); see also § 90.403, Fla. Stat. (2012). IV. ETHICAL OR MORAL OBLIGATION 4. This Court should preclude any references to ethical and moral obligations on the part of the Defendants. Any such references only serve to improperly influence and inflame the jurors, including potentially encouraging them to violate their oath of not letting bias, sympathy, or prejudice play any part in their deliberations. See Metro. Dade County v. Duhon, 780 So. 2d 328, 333 (Fla. 3d DCA 2001). V. REQUESTS BY DEFENDANTS TO EXCLUDE CERTAIN EVIDENCE 5. This Court should preclude any references to these Defendants’ requests for Orders in Limine or the exclusion of evidence, testimony or argument at trial. Any such references would only serve to confuse the issues before the jury, mislead the jury, and would be unduly prejudicial to these Defendants. See § 90.403, Fla. Stat. (2012). 3 VI. IMPROPER EXPERT TESTIMONY AS TO ULTIMATE ISSUE 6. This Court should preclude any attempt by Plaintiff to elicit or utilize expert testimony to reflect that Defendants were negligent with respect to the medical care and treatment they provided to the Decedent. This is a legal issue that is solely reserved for the jury’s determination. See Estate of Murray ex rel. Murray v. Delta Health Group, Inc., 30 So. 2d 576 (Fla. 2d DCA 2010). 7. Under Florida law, expert testimony is admissible to the extent that it “will assist the trier of fact in understanding the evidence or in determining a fact in issue . . . .” See § 90.702, Fla. Stat. (2012). While expert testimony as to an ultimate issue is admissible under section 90.703, Florida Statutes (2012), expert testimony is not admissible if it: (1) states matters that are within the trier of fact’s common understanding; (2) renders a legal opinion based on a set of facts; or (3) simply tells the trier of fact how to decide the case. See County of Volusia v. Kemp, 764 So. 2d 770, 773 (Fla. 5th DCA 2000). 8. In Town of Palm Beach v. Palm Beach County, which involved tax benefits received by the City of Palm Beach, an expert was permitted to testify that the benefits received by the municipality were not “real and substantial.” See 460 So. 2d 879, 882 (Fla. 1984). The Florida Supreme Court held that while the expert could have properly testified as to the importance of the received benefits, he could not simply tell the trier of fact how it should decide. See id. By way of illustration, the Florida Supreme Court cited with approval Gifford v. Galaxie Homes, Inc., 223 So. 2d 108 (Fla. 2d DCA 1969), a case involving a claim for negligent construction, where it was found that while an expert may testify as to whether a building was “constructed and maintained according to reasonably safe construction and engineering standards,”the expert may not simply opine that the building was negligently constructed. See 4 Town of Palm Beach, 460 So. 2d at 882. The court acknowledged that “while this is to some degree a matter of semantics, we find the distinction necessary. Otherwise, the trier of fact is being directed to arrive at a conclusion which it should be free to determine independently from the facts presented.” See id. (citation omitted). 9. This rule has also been applied in cases where an expert witness has been retained to testify as to the application of the law. For example, in Seibert v. Bayport Beach & Tennis Club Ass’n, a condominium association sued the architect of the development claiming that the design of the exits of their units failed to comply with the applicable building code. See 573 So. 2d 889 (Fla. 3d DCA 1990). The parties presented competing experts who simply testified as to how the code should be interpreted, and on appeal, the court reversed, holding that “[a]n expert should not be allowed to testify concerning questions of law.” See id. at 891. 10. The rules against permitting an expert witness to simply provide his or her opinion as to an issue to be decided by the trier of fact, or to testify as to questions of law, have been uniformly followed in Florida. See, e.g., Murray, 30 So. 2d 576 (improper for trial court to permit portions of expert’s opinion opining regarding legal standards of negligence); Schneer v. Allstate Indemnity Co., 767 So. 2d 485 (Fla. 3d DCA 2000) (trial court correctly excluded insurance expert witness whose proffered testimony demonstrated that he simply intended to opine that the insured’s actions did not constitute fraud); Kemp, 764 So. 2d 770 (in malicious prosecution case, trial court abused its discretion in permitting expert witness to testify that the county’s conduct in prosecuting the plaintiff was unconstitutional and to interject his opinions of reports, depositions and trial testimony in the criminal case); 3-M Corp. v. Brown, 475 So. 2d 994 (Fla. 1st DCA 1985) (in product defect case expert witness may not simply testify that the product is defective). 5 11. In the instant case, it is within the sole province of the jury to determine the legal issue of whether the Defendants were negligent, and therefore, no expert should be permitted to opine as to that issue. Furthermore, no expert should be permitted to testify as to his or her interpretation of any federal or state statutes, including Chapter 766, Florida Statutes, or as to any other question of law. VII. IMPEACHMENT MATERIALS 12. This Court should preclude any evidence or testimony that may be used for impeachment purposes, but that were not previously disclosed to the Defendants. Any such evidence or testimony would cause an unfair surprise and undue prejudice to these Defendants. See § 90.403, Fla. Stat. (2012). VIII. COMMENTS CONCERNING WHETHER ANY OF THE HEALTHCARE PROVIDERS WOULD DO THINGS DIFFERENTLY TODAY 13. This Court should preclude any references or questions related to whether or not any healthcare providers involved in providing care and treatment to the Decedent would do things differently today. Said testimony would be speculative, fraught with conjecture, and does not bear on any issues before this Court. Moreover, the probative value, if any, of said testimony is substantially outweighed by its unduly prejudicial effect on the jury. See § 90.403, Fla. Stat. (2012). 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 granting this Motion and any other relief this Court deems appropriate. 6 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, 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 Attorney for Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. Primary Email: phtelan@growerketcham.com st 1 Secondary: enotice@growerketcham.com 2nd Secondary: cboals@growerketcham.com 09934/929 7