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Filing # 146100732 E-Filed 03/21/2022 03:02:27 PM
IN THE CIRCUIT COURT OF THE 19TH
JUDICIAL CIRCUIT IN AND FOR
MARTIN COUNTY, FLORIDA
CHELSEA HILL, as Personal Representative
of the Estate of MARGARET CARLTON, CASENO.: 2021-CA-000610
deceased,
Plaintiff,
vs.
LEONEL LOPEZ, D.O.; PARAGON
CONTRACTING SERVICES, LLC; MICHAEL
MALTMAN, M.D., TREASURE COAST TOPDOC,
PLLC; MARTIN MEMORIAL MEDICAL CENTER,
INC., d/b/a CLEVELAND CLINIC TRADITION
HOSPITAL; and MARTIN MEMORIAL PHYSICIAN
CORPORATION, INC., d/b/a MARTIN HEALTH
PHYSICIAN GROUP,
Defendants.
DEFENDANTS’, MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a
CLEVELAND CLINIC TRADITION HOSPITAL and MARTIN MEMORIAL
PHYSICIAN CORPORATION, INC., d/b/a MARTIN HEALTH PHYSICIAN GROUP,
MOTION IN LIMINE TO PRECLUDE PLAINTIFF’S EXPERT, JOHN SCHWEIGER,
M.D., FROM PROVIDING CUMULATIVE TESTIMONY
Defendants, MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a CLEVELAND
CLINIC TRADITION HOSPITAL (“CCTH”) and MARTIN MEMORIAL PHYSICIAN
CORPORATION, INC., d/b/a MARTIN HEALTH PHYSICIAN GROUP (“MHPG”)
(collectively “Defendants”), by and through their undersigned counsel, move for an order in limine
to preclude Plaintiff’s anesthesiology and critical care expert, John Schweiger, M.D. (“Dr.
Schweiger”), from offering any cumulative opinions regarding the nursing standard of care. In
support of their motion, Defendants state as follows:INTRODUCTION
1. This is a wrongful death action which arises out of allegations that Defendants were
negligent in the care and treatment of Margaret Carlton.
2. As part of her case in chief, Plaintiff retained Tabetha Ruple, R.N. to offer standard
of care opinions regarding the nursing care in this case.
3. Nurse Ruple was deposed on February 18, 2022, and testified regarding the nursing
standard of care.
4, Plaintiff also retained critical care physician Dr. Schweiger. During his deposition,
Dr. Schweiger was critical of the nursing care provided to Margaret Carlton and attempted to offer
standard of care and causation opinions against them.
5. This court should exclude Dr. Schweiger’s opinions concerning the nursing care
and treatment because they will be improperly cumulative of the opinions of Tabetha Ruple, RN.
ARGUMENT
1 Any Nursing Standard of Care Testimony Elicited from Plaintiff's Expert
Physicians Would be Cumulative
Expert testimony, even if relevant, is inadmissible if its probative value is substantially
outweighed by the danger of “unfair prejudice” and “needless presentation of cumulative
evidence.” Fla. Stat. § 90.403; See, e.g., DeLibero v. Q Clubs, Inc., 956 So. 2d 1286, 1288 (Fla.
4th DCA 2007) (affirming exclusion of cumulative expert testimony from second cardiologist);
Nicholson v. Hospital Corporation of America, 725 So. 2d 1264 (Fla. 4th DCA 1999) (expert was
properly excluded as his proffered testimony was cumulative of two other experts who essentially
testified to the same opinion); Gavin v. Promo Brands USA, Inc., 578 So. 2d 518, 519 (Fla. 4th
DCA 1991) (affirming exclusion of cumulative expert witness testimony concerning blood test
results); Smith v. Coastal Emergency Services, Inc., 538 So. 2d 946, 948 (Fla. 4th DCA 1989)(affirming trial court’s limitation precluding expert from testifying as to standard of care where
testimony “would simply have been cumulative....”); Stager v. Florida East Coast Ry. Co., 163
So. 2d 15, 17 (Fla. 3d DCA 1964) (affirming exclusion of testimony of treating physician that
would have been duplicative of testimony of previous two treating physicians).
It is well established that “[a] limitation on the number of experts per side is allowed as a
mechanism to prevent the ‘needless presentation of cumulative evidence.”” Lion Plumbing Supply,
Inc. v. Suarez, 844 So. 2d 768, 770 (Fla. 3d DCA 2003); see also Woodson v. Go, 166 So. 3d 231
(Fla. Sth DCA 2015); Gonzalez v. Martinez, 897 So. 2d 525, 527 (Fla. 3d DCA 2005) (“[A] trial
judge has the discretion to limit the number of witnesses who[m] the parties may call to testify at
trial, and there is no abuse of discretion when the trial judge excludes additional medical testimony
that would have been cumulative in nature”). Additionally, this Court has discretion to limit the
presentation of evidence to “[a]void needless consumption of time.” Fla. Stat. § 90.612(1)(b).
Plaintiff has produced Nurse Ruple as her nursing standard of care expert in this case.
Therefore, allowing Plaintiff’s expert physician Dr. Schweiger to testify regarding the nursing
standard of care would result in cumulative and duplicative testimony. This testimony would serve
only to improperly bolster the Plaintiff’s expert witnesses. The jury may mistakenly give less
weight to the opinions of Defendants’ nursing standard of care expert simply because Plaintiff has
presented multiple expert witnesses on the issue of the nursing standard of care. Furthermore, the
presentation of this duplicative testimony will unnecessarily prolong the trial and waste judicial
resources. As such, the Court should preclude Plaintiff's expert physicians, including but not
limited to Dr. Schweiger, from offering standard of care opinions as it relates to the nurses who
cared for Margaret Carlton.Finally, the 17" Judicial Circuit has previously precluded plaintiffs from having their
expert physician provide cumulative standard of care testimony concerning the nursing standard
of care. See excerpt of transcript from trial of Latricia Mitchell et al. v. South Broward Hospital
District d/b/a Memorial Hospital West, et al., case No. 14-005044, pp. 18-21, attached hereto as
Exhibit “A.”
WHEREFORE Defendants, MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a
CLEVELAND CLINIC TRADITION HOSPITAL and MARTIN MEMORIAL PHYSICIAN
CORPORATION, INC., d/b/a MARTIN HEALTH PHYSICIAN GROUP, respectfully request
that Plaintiff's retained experts, including but not limited to Dr. Schweiger, be prohibited from
offering cumulative nursing standard of care testimony and any other relief this Court deems just
and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this
of/ * day of March, 2022, via the Florida Courts E-Portal/E-Mail upon the parties listed in the
attached Service List.
STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
Attorneys for Defendants Martin Memorial
Medical Center, Inc. and Martin Memorial
Physician Corporation, Inc.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
Telephone: (954) 462-9500
Facsimile: (954) 2 TS
By: LA
THOMAS G. AUBIN
FBN: 008060
taubin @stearnsweaver.com
MATTHEW S. PODOLNICK
FBN: 112126
mpodolnick @stearnsweaver.com
4AMANDA L. SPENCER
FBN: 1010874
aspencer @ stearnsweaver.comSERVICE LIST
Bonnie Navin, Esq.
Michael Petruccelli, Esq.
Rubenstein Law, P.A.
9130 S. Dadeland Blvd., PH
Miami, FL 33156
Tel.: 305-661-6000
Attorneys for Plaintiff
James White, Esq.
White & Russell, P.A.
11641 Kew Gardens Ave., Suite 101
Palm Beach Gardens, FL 33410
Tel.: 561-684-6600
Fax: 561-622-6288
Attorneys for Paragon Contracting Services,
LLC and Leonel Lopez, D.O.
Jessica Kaplan, Esquire
515 E. Las Olas Blvd.
Suntrust Center, Suite 1400
Fort Lauderdale, FL 33301
Phone: (954) 847-4800
Fax: (954) 760-9353
Attorneys for Michael Maltman, M.D.
Wicker Smith O’ Hara McCoy & Ford, P.A.
#10383392 v1
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Filing # 146100732 E-Filed 03/21/2022 03:02:27 PM IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA CHELSEA HILL, as Personal Representative of the Estate of MARGARET CARLTON, CASENO.: 2021-CA-000610 deceased, Plaintiff, vs. LEONEL LOPEZ, D.O.; PARAGON CONTRACTING SERVICES, LLC; MICHAEL MALTMAN, M.D., TREASURE COAST TOPDOC, PLLC; MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a CLEVELAND CLINIC TRADITION HOSPITAL; and MARTIN MEMORIAL PHYSICIAN CORPORATION, INC., d/b/a MARTIN HEALTH PHYSICIAN GROUP, Defendants. DEFENDANTS’, MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a CLEVELAND CLINIC TRADITION HOSPITAL and MARTIN MEMORIAL PHYSICIAN CORPORATION, INC., d/b/a MARTIN HEALTH PHYSICIAN GROUP, MOTION IN LIMINE TO PRECLUDE PLAINTIFF’S EXPERT, JOHN SCHWEIGER, M.D., FROM PROVIDING CUMULATIVE TESTIMONY Defendants, MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a CLEVELAND CLINIC TRADITION HOSPITAL (“CCTH”) and MARTIN MEMORIAL PHYSICIAN CORPORATION, INC., d/b/a MARTIN HEALTH PHYSICIAN GROUP (“MHPG”) (collectively “Defendants”), by and through their undersigned counsel, move for an order in limine to preclude Plaintiff’s anesthesiology and critical care expert, John Schweiger, M.D. (“Dr. Schweiger”), from offering any cumulative opinions regarding the nursing standard of care. In support of their motion, Defendants state as follows:INTRODUCTION 1. This is a wrongful death action which arises out of allegations that Defendants were negligent in the care and treatment of Margaret Carlton. 2. As part of her case in chief, Plaintiff retained Tabetha Ruple, R.N. to offer standard of care opinions regarding the nursing care in this case. 3. Nurse Ruple was deposed on February 18, 2022, and testified regarding the nursing standard of care. 4, Plaintiff also retained critical care physician Dr. Schweiger. During his deposition, Dr. Schweiger was critical of the nursing care provided to Margaret Carlton and attempted to offer standard of care and causation opinions against them. 5. This court should exclude Dr. Schweiger’s opinions concerning the nursing care and treatment because they will be improperly cumulative of the opinions of Tabetha Ruple, RN. ARGUMENT 1 Any Nursing Standard of Care Testimony Elicited from Plaintiff's Expert Physicians Would be Cumulative Expert testimony, even if relevant, is inadmissible if its probative value is substantially outweighed by the danger of “unfair prejudice” and “needless presentation of cumulative evidence.” Fla. Stat. § 90.403; See, e.g., DeLibero v. Q Clubs, Inc., 956 So. 2d 1286, 1288 (Fla. 4th DCA 2007) (affirming exclusion of cumulative expert testimony from second cardiologist); Nicholson v. Hospital Corporation of America, 725 So. 2d 1264 (Fla. 4th DCA 1999) (expert was properly excluded as his proffered testimony was cumulative of two other experts who essentially testified to the same opinion); Gavin v. Promo Brands USA, Inc., 578 So. 2d 518, 519 (Fla. 4th DCA 1991) (affirming exclusion of cumulative expert witness testimony concerning blood test results); Smith v. Coastal Emergency Services, Inc., 538 So. 2d 946, 948 (Fla. 4th DCA 1989)(affirming trial court’s limitation precluding expert from testifying as to standard of care where testimony “would simply have been cumulative....”); Stager v. Florida East Coast Ry. Co., 163 So. 2d 15, 17 (Fla. 3d DCA 1964) (affirming exclusion of testimony of treating physician that would have been duplicative of testimony of previous two treating physicians). It is well established that “[a] limitation on the number of experts per side is allowed as a mechanism to prevent the ‘needless presentation of cumulative evidence.”” Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 770 (Fla. 3d DCA 2003); see also Woodson v. Go, 166 So. 3d 231 (Fla. Sth DCA 2015); Gonzalez v. Martinez, 897 So. 2d 525, 527 (Fla. 3d DCA 2005) (“[A] trial judge has the discretion to limit the number of witnesses who[m] the parties may call to testify at trial, and there is no abuse of discretion when the trial judge excludes additional medical testimony that would have been cumulative in nature”). Additionally, this Court has discretion to limit the presentation of evidence to “[a]void needless consumption of time.” Fla. Stat. § 90.612(1)(b). Plaintiff has produced Nurse Ruple as her nursing standard of care expert in this case. Therefore, allowing Plaintiff’s expert physician Dr. Schweiger to testify regarding the nursing standard of care would result in cumulative and duplicative testimony. This testimony would serve only to improperly bolster the Plaintiff’s expert witnesses. The jury may mistakenly give less weight to the opinions of Defendants’ nursing standard of care expert simply because Plaintiff has presented multiple expert witnesses on the issue of the nursing standard of care. Furthermore, the presentation of this duplicative testimony will unnecessarily prolong the trial and waste judicial resources. As such, the Court should preclude Plaintiff's expert physicians, including but not limited to Dr. Schweiger, from offering standard of care opinions as it relates to the nurses who cared for Margaret Carlton.Finally, the 17" Judicial Circuit has previously precluded plaintiffs from having their expert physician provide cumulative standard of care testimony concerning the nursing standard of care. See excerpt of transcript from trial of Latricia Mitchell et al. v. South Broward Hospital District d/b/a Memorial Hospital West, et al., case No. 14-005044, pp. 18-21, attached hereto as Exhibit “A.” WHEREFORE Defendants, MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a CLEVELAND CLINIC TRADITION HOSPITAL and MARTIN MEMORIAL PHYSICIAN CORPORATION, INC., d/b/a MARTIN HEALTH PHYSICIAN GROUP, respectfully request that Plaintiff's retained experts, including but not limited to Dr. Schweiger, be prohibited from offering cumulative nursing standard of care testimony and any other relief this Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this of/ * day of March, 2022, via the Florida Courts E-Portal/E-Mail upon the parties listed in the attached Service List. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Attorneys for Defendants Martin Memorial Medical Center, Inc. and Martin Memorial Physician Corporation, Inc. 200 East Las Olas Blvd., Suite 2100 Fort Lauderdale, FL 33301 Telephone: (954) 462-9500 Facsimile: (954) 2 TS By: LA THOMAS G. AUBIN FBN: 008060 taubin @stearnsweaver.com MATTHEW S. PODOLNICK FBN: 112126 mpodolnick @stearnsweaver.com 4AMANDA L. SPENCER FBN: 1010874 aspencer @ stearnsweaver.comSERVICE LIST Bonnie Navin, Esq. Michael Petruccelli, Esq. Rubenstein Law, P.A. 9130 S. Dadeland Blvd., PH Miami, FL 33156 Tel.: 305-661-6000 Attorneys for Plaintiff James White, Esq. White & Russell, P.A. 11641 Kew Gardens Ave., Suite 101 Palm Beach Gardens, FL 33410 Tel.: 561-684-6600 Fax: 561-622-6288 Attorneys for Paragon Contracting Services, LLC and Leonel Lopez, D.O. Jessica Kaplan, Esquire 515 E. Las Olas Blvd. Suntrust Center, Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 847-4800 Fax: (954) 760-9353 Attorneys for Michael Maltman, M.D. Wicker Smith O’ Hara McCoy & Ford, P.A. #10383392 v1