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IN THE CIRCUIT COURT OF THE 20™
JUDICIAL CIRCUIT IN AND FOR
Charlotte County Clerk CHARLOTTE COUNTY, FLORIDA
1348360 Date : 08/15/01 - 10:05:14 5 120
Case#: 00000120CA Pages: 0005 GENERAL JURISDICTION DIVISION
omni CASENO: 00120 CA
SALLY SIMON, as Personal Representative
of the Estate of MICHAEL SIMON,
Plaintiff,
vs.
SAMUEL ESTEPA, M.D.,
Defendant.
/
MOTION IN LIMINE TO PRECLUDE DEFENDANT’S
EXPERT WITNESS FROM PROVIDING NEW,
PREVIOUSLY UNDISCLOSED OPINIONS AT TRIAL
Plaintiff SALLY SIMON, as personal representative of the Estate of Michael Simon, by and
through undersigned counsel and pursuant to the Florida Rules of Civil Procedure, hereby files this
Motion in Limine to Preclude Defendant’s Expert, Dr. Bruce Ammerman, from Providing New,
Previously Undisclosed Opinions at Trial, and states as follows:
FACT:
1. The Parties were specifically required to provide a summary of each of their expert’s
opinions, pursuant to this Court’s November 21, 2000 Trial Order and its January 16, 2001
Stipulated Scheduling Order. [See paragraph 6 of the Court’s 11/21/00 Trial Order and paragraph
3 of its 1/16/01 Scheduling Order]. In his expert disclosure, Defendant Estepa summarized the
opinions of his expert, Dr. Bruce Ammerman, indicating that he was expected to testify that Dr.
Estepa met the prevailing standard of care, and that he would also testify as to “matters of causation.”
[See Estepa’s Expert Witness Disclosure of 2/15/01] .
CULMO & CULMO, P.A,, 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 « (305) 856-40042. On April 26, 2001, in preparation for trial, Plaintiff took a discovery deposition of
Dr, Ammerman to identify the substance of his opinions and the facts upon which those opinions
were based. Dr. Ammerman was specifically asked in that deposition about any and all radiographic
studies he had been provided and which he had reviewed. Dr. Ammerman testified that he had
reviewed a CT scan and MRI’s:
[Ammerman deposition, p.20, lines 10-17]
I understand that you have reviewed some films in this case?
Yes, sir.
What have you reviewed?
> oO FPF
[have reviewed the abdominal CT from the first admission, and I believe I reviewed
MRI’s from the second admission. Those come to mind. There may have been
others.
Later in the deposition, Dr. Ammerman was asked to itemize exactly what he had reviewed prior to
testifying. Once again, he confirmed that there were no other films he had reviewed:
[Ammerman deposition, p.33, lines 2-10]
A. Tell me what you’ ve looked at in this case, if you know.
B. I'll be glad to tell you, but in no particular order. [ reviewed the admissions from
7/23/97 and 8/18/97, the films we've spoken of, depositions of Dr. Greenberg, Dr.
Lustgarten, Dr. Constine, Dr. Maas, the complaint, Dr. Estepa’s deposition. Dr.
White’s deposition. That's it.
At no time did Dr. Ammerman nor did defense counsel ever disclose or advise that the expert had
seen or reviewed plain x-rays of the spine.
3. On July 25, 2001, counsel for Dr. Estepa took the videotaped deposition of his expert,
Dr. Ammerman, for use at trial. In the direct examination of that trial testimony, Dr. Ammerman,
2-
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004for the first time, attempted to offer opinions about diagnostic films which he had never mentioned
he had reviewed in his earlier discovery deposition. This trial testimony was a total surprise and
Plaintiff had no knowledge that Dr. Ammerman had ever reviewed those films or that he would
comment on them in his trial testimony.’ In light of this new testimony, Plaintiff made a
simultaneous objection to same on the record.
4. If this type of surprise testimony were offered at the trial of this cause, a mistrial
would be warranted. See, Suarez- Burgos v. Morhaim 745 So.2d 368 (Fla. 4" DCA 1999). In
Suarez-Burgos, an expert attempted to offer opinions and conclusions at trial which were
substantially different than those disclosed during discovery, and which were based upon materials
provided to him after he was deposed during pre-trial discovery. Id. at 370. Noting the unfair
surprise and prejudice to the plaintiff by permitting these previously undisclosed opinions to be
presented at trial, the Court affirmed a mistrial, stating that “[A] party can hardly prepare for an
opinion that it doesn’t know about...” Id.
5. Florida law is well-established that except under extraordinary circumstances, lawyers
have a right to expect that once trial commences, discovery must cease. See, Grau vy. Branham 626
So.2d 1059 (Fla. 4" DCA 1993)(holding that once the trial starts, neither side should be required to
engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party).
Accordingly, newly-formed opinions disclosed by an expert just prior to, or at the time of trial,
should be excluded since the purpose of a discovery deadline is to avoid surprise to either side.
Department of Health and Rehabilitation Services y. J.B. 675 So.2d 241 (Fla. 4" DCA 1996)(where
trial testimony was first time opposing side became aware of expert’s new opinions, it was abuse of
| Although this testimony was presented prior to trial, the videotaped deposition was
being taken in lieu of this expert’s live appearance, and thus, was, for all purposes, trial
testimony.
-3-
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004discretion to permit testimony to be presented); Garcia v. Emerson Electric Co. 677 So.2d 20 (Fla.
3" DCA 1996)(abuse of discretion to permit expert to offer opinion at trial which could not be
reviewed or rebutted by the other side until the time of trial); DeToro v. Dervan Investments Limited
Corp. 483 So.2d 717 (Fla. 4" DCA 1985)(trial court properly disallowed testimony of expert which
had not previously been elicited during discovery).
6. Should the Defendant be permitted to present these new expert opinions about the
diagnostic films which had been specifically asked about in Dr. Ammerman’s discovery deposition
(and which Dr. Ammerman offered no opinion about), both the discovery rules and this Court’s pre-
trial orders would be rendered moot. As stated by the Florida Supreme Court, “Litigation should
no longer proceed as a game of blind man’s bluff...” Binger v. King Pest Control 401 So.2d 1310
(Fla. 1981).
7. Defense counsel had an obligation, both at the time of the discovery deposition and
thereafter (but certainly before Dr. Ammerman’s trial testimony), to disclose that his expert had been.
provided with these films, that he had reviewed the films and that he would render opinions about
the films. His failure to do so warrants the exclusion of such expert opinions and testimony at the
trial of this cause. See, Tetrault v. Fairchild 26 FLW D1854 (Fla. 5" DCA, opinion filed July 24,
2001)\(ceversible error to permit radiologist to testify about his review of MRI films which review
was done shortly before the trial and after the discovery cut-off, where opposing side had never been
put on notice that the expert would render opinions at trial about those particular films).
-4-
CULMO & CULMO, B.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33/33 + (305) 856-4004CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S.
Mail to Benito Diaz, Esq., Diaz & Morel-Saruski, 2912 Douglas Road, Coral Gables, Florida
33134 and Dennis Koltun, Esq., Koltun & Lazar, 7000 SW 97" Avenue, Suite 210, Miami,
Florida 33173 on this it day of August, 2001.
CULMO & CULMO, P.A.
2400 South Dixie Highway
Suite 100
Miami, Florida 33133
Phone: (305) 856-4004
Fax: (305) 854-5445
ov “bis (idee
Thomas A. Culmo
Fla. Bar No. 775479
FACASES\SIMON\PLEADING\Motion.Limine.002
5-
CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004
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IN THE CIRCUIT COURT OF THE 20™ JUDICIAL CIRCUIT IN AND FOR Charlotte County Clerk CHARLOTTE COUNTY, FLORIDA 1348360 Date : 08/15/01 - 10:05:14 5 120 Case#: 00000120CA Pages: 0005 GENERAL JURISDICTION DIVISION omni CASENO: 00120 CA SALLY SIMON, as Personal Representative of the Estate of MICHAEL SIMON, Plaintiff, vs. SAMUEL ESTEPA, M.D., Defendant. / MOTION IN LIMINE TO PRECLUDE DEFENDANT’S EXPERT WITNESS FROM PROVIDING NEW, PREVIOUSLY UNDISCLOSED OPINIONS AT TRIAL Plaintiff SALLY SIMON, as personal representative of the Estate of Michael Simon, by and through undersigned counsel and pursuant to the Florida Rules of Civil Procedure, hereby files this Motion in Limine to Preclude Defendant’s Expert, Dr. Bruce Ammerman, from Providing New, Previously Undisclosed Opinions at Trial, and states as follows: FACT: 1. The Parties were specifically required to provide a summary of each of their expert’s opinions, pursuant to this Court’s November 21, 2000 Trial Order and its January 16, 2001 Stipulated Scheduling Order. [See paragraph 6 of the Court’s 11/21/00 Trial Order and paragraph 3 of its 1/16/01 Scheduling Order]. In his expert disclosure, Defendant Estepa summarized the opinions of his expert, Dr. Bruce Ammerman, indicating that he was expected to testify that Dr. Estepa met the prevailing standard of care, and that he would also testify as to “matters of causation.” [See Estepa’s Expert Witness Disclosure of 2/15/01] . CULMO & CULMO, P.A,, 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 « (305) 856-40042. On April 26, 2001, in preparation for trial, Plaintiff took a discovery deposition of Dr, Ammerman to identify the substance of his opinions and the facts upon which those opinions were based. Dr. Ammerman was specifically asked in that deposition about any and all radiographic studies he had been provided and which he had reviewed. Dr. Ammerman testified that he had reviewed a CT scan and MRI’s: [Ammerman deposition, p.20, lines 10-17] I understand that you have reviewed some films in this case? Yes, sir. What have you reviewed? > oO FPF [have reviewed the abdominal CT from the first admission, and I believe I reviewed MRI’s from the second admission. Those come to mind. There may have been others. Later in the deposition, Dr. Ammerman was asked to itemize exactly what he had reviewed prior to testifying. Once again, he confirmed that there were no other films he had reviewed: [Ammerman deposition, p.33, lines 2-10] A. Tell me what you’ ve looked at in this case, if you know. B. I'll be glad to tell you, but in no particular order. [ reviewed the admissions from 7/23/97 and 8/18/97, the films we've spoken of, depositions of Dr. Greenberg, Dr. Lustgarten, Dr. Constine, Dr. Maas, the complaint, Dr. Estepa’s deposition. Dr. White’s deposition. That's it. At no time did Dr. Ammerman nor did defense counsel ever disclose or advise that the expert had seen or reviewed plain x-rays of the spine. 3. On July 25, 2001, counsel for Dr. Estepa took the videotaped deposition of his expert, Dr. Ammerman, for use at trial. In the direct examination of that trial testimony, Dr. Ammerman, 2- CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004for the first time, attempted to offer opinions about diagnostic films which he had never mentioned he had reviewed in his earlier discovery deposition. This trial testimony was a total surprise and Plaintiff had no knowledge that Dr. Ammerman had ever reviewed those films or that he would comment on them in his trial testimony.’ In light of this new testimony, Plaintiff made a simultaneous objection to same on the record. 4. If this type of surprise testimony were offered at the trial of this cause, a mistrial would be warranted. See, Suarez- Burgos v. Morhaim 745 So.2d 368 (Fla. 4" DCA 1999). In Suarez-Burgos, an expert attempted to offer opinions and conclusions at trial which were substantially different than those disclosed during discovery, and which were based upon materials provided to him after he was deposed during pre-trial discovery. Id. at 370. Noting the unfair surprise and prejudice to the plaintiff by permitting these previously undisclosed opinions to be presented at trial, the Court affirmed a mistrial, stating that “[A] party can hardly prepare for an opinion that it doesn’t know about...” Id. 5. Florida law is well-established that except under extraordinary circumstances, lawyers have a right to expect that once trial commences, discovery must cease. See, Grau vy. Branham 626 So.2d 1059 (Fla. 4" DCA 1993)(holding that once the trial starts, neither side should be required to engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party). Accordingly, newly-formed opinions disclosed by an expert just prior to, or at the time of trial, should be excluded since the purpose of a discovery deadline is to avoid surprise to either side. Department of Health and Rehabilitation Services y. J.B. 675 So.2d 241 (Fla. 4" DCA 1996)(where trial testimony was first time opposing side became aware of expert’s new opinions, it was abuse of | Although this testimony was presented prior to trial, the videotaped deposition was being taken in lieu of this expert’s live appearance, and thus, was, for all purposes, trial testimony. -3- CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004discretion to permit testimony to be presented); Garcia v. Emerson Electric Co. 677 So.2d 20 (Fla. 3" DCA 1996)(abuse of discretion to permit expert to offer opinion at trial which could not be reviewed or rebutted by the other side until the time of trial); DeToro v. Dervan Investments Limited Corp. 483 So.2d 717 (Fla. 4" DCA 1985)(trial court properly disallowed testimony of expert which had not previously been elicited during discovery). 6. Should the Defendant be permitted to present these new expert opinions about the diagnostic films which had been specifically asked about in Dr. Ammerman’s discovery deposition (and which Dr. Ammerman offered no opinion about), both the discovery rules and this Court’s pre- trial orders would be rendered moot. As stated by the Florida Supreme Court, “Litigation should no longer proceed as a game of blind man’s bluff...” Binger v. King Pest Control 401 So.2d 1310 (Fla. 1981). 7. Defense counsel had an obligation, both at the time of the discovery deposition and thereafter (but certainly before Dr. Ammerman’s trial testimony), to disclose that his expert had been. provided with these films, that he had reviewed the films and that he would render opinions about the films. His failure to do so warrants the exclusion of such expert opinions and testimony at the trial of this cause. See, Tetrault v. Fairchild 26 FLW D1854 (Fla. 5" DCA, opinion filed July 24, 2001)\(ceversible error to permit radiologist to testify about his review of MRI films which review was done shortly before the trial and after the discovery cut-off, where opposing side had never been put on notice that the expert would render opinions at trial about those particular films). -4- CULMO & CULMO, B.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33/33 + (305) 856-4004CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail to Benito Diaz, Esq., Diaz & Morel-Saruski, 2912 Douglas Road, Coral Gables, Florida 33134 and Dennis Koltun, Esq., Koltun & Lazar, 7000 SW 97" Avenue, Suite 210, Miami, Florida 33173 on this it day of August, 2001. CULMO & CULMO, P.A. 2400 South Dixie Highway Suite 100 Miami, Florida 33133 Phone: (305) 856-4004 Fax: (305) 854-5445 ov “bis (idee Thomas A. Culmo Fla. Bar No. 775479 FACASES\SIMON\PLEADING\Motion.Limine.002 5- CULMO & CULMO, P.A., 2400 SOUTH DIXIE HIGHWAY, SUITE 100, MIAMI, FL 33133 + (305) 856-4004