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Filing # 105351198 E-Filed 03/24/2020 01:02:03 PM
IN THE CIRCUIT COURT OF THE
ee
OR MARTIN COUNTY, FLORIDA
FREDERIC CHARLES GREER, III, and
MELISSA ANNE GREER, as Husband and
Wife, and FREDERIC CHARLES GREER, III CASE NO: 2019-CA-000015
and MELISSA ANNE GREER, individually,
Plaintiffs,
vs.
MARTIN MEMORIAL MEDICAL CENTER,
INC. d/b/a MARTIN MEDICAL CENTER, a
Florida Corporation, KUNAL CHAUDHRY, M.D.;
and CARDIOLOGY ASSOCIATES OF STUART,
P.A., a Florida profit corporation,
Defendants.
/
DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER’s d/b/a MARTIN
MEDICAL CENTER MOTION IN LIMINE REGARDING
REFERENCE TO AUTHORITATIVE TEXTS
Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN
MEDICAL CENTER, (“MMMC’”) by and through its undersigned counsel, moves for an order
in limine to preclude Plaintiffs from introducing evidence of, or making reference to, any journal
articles, medical textbooks, committee guidelines, or other medical publications as authoritative
texts and/or learned treatises during the direct examination of Plaintiffs’ expert witnesses:
Andrew Selwyn, M.D., George Tolis, M.D., Eli Gelfand, M.D., Robert Eilers, M.D., Nicholas
Suite, M.D., and Ronald Missun, Ph.D., and quite possibly, during the direct examination of
other witnesses. In support of its motion, Defendant states as follows:
Florida law prohibits the use of such materials to bolster the testimony of an expert
witness during direct examination. Authoritative publications cannot be used to bolster the
credibility of an expert or to supplement an opinion of the expert that has already been formed,
nor can medical treatises be used to bolster the testimony of a physician on direct examination.
Electronically Filed Martin 03/24/2020 01:02 PM
GREER V MMMC et. al.
2019-CA-00015
Fla. Stat. §90.706; Phillip Morris, Inc. v. Janoff, 901 So. 2d 141 (Fla. 3d DCA 2004), rehearing
denied (May 18, 2005); Medina v, Variety Children’s Hosp., 438 So. 2d 138 (Fla. 34 DCA
1983).
Likewise, in Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989), the Fourth
District Court found that textual material from a medical treatise could not be read by a
motorist’s attorney to a motorist’s expert witness or used by the witness to bolster his own
opinion testimony during direct examination in a negligence action. See also Linn v. Fossum,
946 So. 2d 1032, 1039 (Fla. 2007)(“it is inappropriate to allow experts on direct examination to
bolster their credibility or to supplement their opinions by ‘testifying that a treatise agrees with
their opinion.’”); Schwarz y. State, 695 So. 2d 452, 455 (Fla. 4" DCA 1997)(“Expert cannot, on
direct examination, bolster their testimony by testifying that a treatise agrees with their
opinion.”).
Here, the Court should preclude Plaintiffs and their experts from citing, mentioning, or
making any reference to any medical treatise or literature during direct examination of their
experts or any treating physician.
Next, it is reversible error to allow the cross-examination of an expert witness with
medical literature if the expert or court does not recognize that literature as authoritative. In
Myron y. Doctors Gen. Hosp., Ltd., 704 So. 2d 1083, 1086 (Fla. 4" DCA 1997), the Fourth
District Court .held that “the trial court erred in admitting Child Protection Team reports of a
child abuse investigation and in permitting the defense to cross-examine the appellants’ experts
with non-authoritative medical treatises. These errors were not harmless and consequently
necessitate a new trial.” Jd. The Myron Court further held that “the treatises should not have
been used in cross-examination unless either the expert or the trial court recognized their
GREER V MMMC, et. al.
2019-CA-00015
authoritativeness. Since neither did, it was error to permit cross-examination using the treatises.”
Id. at 1092.
In this case, Plaintiffs have failed to establish the authoritativeness of any medical
treatises or literature through either Defendant’s experts.
Defense expert Kim Klancke, M.D. was not asked whether he believed any medical
treatises or literature was authoritative. Defense expert Michael Carmichael, M.D. testified:
Q Do you consider any type of literature authoritative?
A No.
See Excerpt of Deposition Transcript of Dr. Carmichael, p. 38, a copy of which is
attached hereto as Exhibit “A.”
Defense expert Timothy Fischell, M.D. testified:
Q Do you consider any medical literature authoritative?
A No, not really.
See Excerpt of Deposition Transcript of Dr. Fischell, p. 29, a copy of which is attached
hereto as Exhibit “B.”
Finally, Plaintiffs’ counsel questioned a number of Defense experts by referencing or
quoting certain ACCF/AHA Guidelines, as well as a medical literature article by Judith
Hochman, M.D. See Exhibit “B,” pp. 29-35, 112-113. This is precisely the type of
impermissible questions that Florida law precludes.
However, Defense counsel is permitted to cross examine Plaintiffs’ expert Andrew
Selwyn, M.D., on these guidelines because he testified that ACC/AHA/SCAI were authoritative.
See Excerpt of November 2019 Deposition Transcript of Dr. Selwyn, p. 37, a copy of which is
attached hereto as Exhibit “C.” Thus, while Plaintiffs’ counsel must be precluded from asking
GREER V MMMC et. al.
2019-CA-00015
Dr. Selwyn about these guidelines during direct examination, under the relevant case law in
Florida, and because Dr. Selwyn acknowledged under oath that these guidelines were
authoritative, Defendant counsel is permitted to use them to cross-examine Dr. Selwyn at the
time of trial.
WHEREFORE, Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a
MARTIN MEDICAL CENTER, respectfully requests this Court to preclude Plaintiffs from
introducing evidence of, or making reference to, any journal articles, medical textbooks,
committee guidelines, or other medical publications as authoritative texts and/or learned treatises
during the direct examination of Plaintiffs’ expert witnesses or during the direct examination of
other witnesses in this medical negligence case.
Further, MMMC requests this Court to preclude Plaintiffs’ experts or any treating
physician from referencing “the literature” generally during cross-examination, unless such
literature is identified specifically and was relied upon in forming that expert’s opinion during
the discovery deposition. Plaintiffs should not be permitted to circumvent the rule precluding the
bolstering of an expert’s opinion during direct examination by having the expert reference
“general” medical literature during cross-examination.
Finally, MMMC requests this Court to preclude Plaintiffs’ counsel from using, citing, or
referencing in any way any medical treatise or literature during the cross-examination of
Defendant’s expert witnesses, as neither those experts, nor the Court, has established any
medical treatises or literature as authoritative in this case.
GREER V MMMC, et. al.
2019-CA-00015
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 4, of March, 2020, a copy of the foregoing
was served via the Florida E-Filing Portal to the parties on the attached service list.
STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
Attorneys for Martin Memorial Medical Center, Inc.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
Phone: (954) 462-9500
Fax: (954) 462-9567
yy. . a
OMAS G. AUB IN, ESQUIRE
FB 008060
taubin@stearnsweayer.com
weaver-Com
MATTHEW S. PODOLNICK, ESQUIRE
FBN: 112126
mpodolnick@stearnsweaver.com
GREER V MMMC , et. al.
2019-CA-00015
SERVICE LIST
Peter J. Somera Jr., Esq. Keith J. Puya, Esq.
Paul M. Silva, M.D., Esq. Hector R. Buigas, Esq.
Somera & Silva, LLP Law Offices of Keith J. Puya, P.A.
2255 Glades Road, Suite 232W 4880 Donald Ross Road, Suite 225
Boca Raton, FL 33431 Palm Beach Gardens, FL 33418
Phone: (561) 981-8881 Phone: (561) 408-3772
Fax: (561) 981-8887 Fax: (561) 408-3759
pleadings@somerasilva.com service @} yu yalaw.com
litigation somerasilva.com Attorneys for Defendants Kunal Chaudhry,
Attorneys for Plaintiffs M.D. and Cardiology Associates of Stuart,
PA,
——
Dinah Stein, Esq. Adam Richardson, Esq.
Hicks, Poerter, Ebenfeld & Stein Burlington & Rockenbach, P.A.
799 Brickell Plaza, 9" Floor 444 West Railroad Avenue
Miami, FL 33131 West Palm Beach, FL 33401
Phone: (305) 375-8171 Tel: 561-721-0400
dstein@mhickslaw.com
KSI ajr@FLAppellateLaw.com
Attorneys for Defendants Kunal Chaudhry, fa@FLAppellateLaw.com
M.D. and Cardiology Associates of Stuart, Appellate attorneys
for Plaintiffs
P.A.
MICHAEL CARMICHAEL M.D. January
16, 2020
GREER vs MARTIN MEMORIAL
a ee =
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR MARTIN COUNTY, FLORIDA, CIVIL ACTION
FREDERIC CHARLES GREER, TII and
MELISSA ANNE GREER, as Husband
and Wife, and FREDERIC CHARLES
GREER, III and MELISSA ANNE
GREER, individually,
Plaintiffs,
vs CASE NO 2019CA000015
MARTIN MEMORIAL MEDICAL
CENTER, INC., d/b/a MARTIN
MEDICAL CENTER, a Florida
Corporation; KUNAL CHAUDHRY, M.D.
and CARDIOLOGY ASSOCIATES OF
STUART, P.A., a Florj}@eBxogre.
Corporation,
Defendants.
——S a /
DEPOSITION OF: MICHAEL J. CARMICHAEL, M.D.
DATE: Thursday, January 16, 2020
TIME: 10:02 a.m. to 4:01 p.m.
LOCATION: Fort Myers Court Reporting
2180 West First Street, #120
Fort Myers, Florida 33901
TAKEN BY: Counsel for Plaintiffs
REPORTER: Julie A. Winn, RPR, CRR
@ ESQUIRE
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800.211.DEPgy 6
EsquireSolu EXHIBIT
1A
MICHAEL CARMICHAEL M.D. January
16, 2020
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38
a
Q Doesn't the medical literature specifically
state that the only type of intervention for
revascularization that increases a patient's life span
in a patient who's a diabetic, has decreased left
ventricular function and has triple vessel disease is
coronary artery bypass graft?
MR. BUIGAS: Object to the form. Go ahead.
BY MR. SILVA:
Q You can answer. Isn't that true?
10 A The literature would say that the only thing
11 that we do in medicine that has ever prolonged life is
12 the presence of a left internal mammary artery to the
13 LAD.
14 So, medical management, stenting, angioplasty,
aL surgery, the only thing that has ever been shown, and
16 that's out of Cleveland Clinic -- that has ever been
17 shown to prolong life is the presence of an internal
18 mammary to the LAD. Everything else that we do is
19 symptomatic relief trying to improve quality of life,
20 but the only thing that's ever been shown to improve
a longevity is a mammary to the LAD.
22 Q Do you consider any type of literature
23 authoritative?
24 A No.
25 Q Are you familiar with the 2011 ACCF/American
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TIMOTHY FISCHELL, M.D. January
22, 2020
4
GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER
=.
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL DISTRICT
IN AND FOR MARTIN COUNTY, FLORIDA
FREDERIC CHARLES GREER III
and MELISSA ANNE GREER, as
husband and wife, and FREDERIC
CHARLES GREER III and MELISSA
ANNE GREER, individually,
Plaintiffs,
vs. No. 2019CA000015
MARTIN MEMORIAL MEDICAL
CENTER, INC., dba MARTIN
MEDICAL CENTER, a Florida
corporation, KUNAL CHAUDHRY,
10 M.D.,; and CARDIOLOGY
ASSOCIATES OF STUART, RAY, a
11 Florida Profit Corporation,
12 Defendants.
13
14
15 VIDEO-CONFERENCED DEPOSITION OF
16 IMOTHY FISCHELL, M.D.
17
18
19 Date: Wednesday, January 22, 2020
20
Time: 10:04 A.M.
ee
22 Location La Playa Carmel
Camino Real at 8th Avenue
23 Carmel, California
24
25
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1
TIMOTHY FISCHELL, M.D. January 22, 2020
GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 29
_
A I'm not aware of that.
Q Did you see any evidence in the medical records
that Dr. Chaudhry attempted to call Dr. Silvestry prior
to the coronary perforation?
A I'm not aware of that.
Q Do you consider any medical literature
authoritative?
A No, not really.
Q Are you a member of the American Heart
10 Association?
11 A Yeah.
12 Q Have you ever reviewed the 2011 ACCF American
13 Heart Associatiom SCAI guideline for percutaneous
14 coronary intervention?
15 A Yes.
16 Q Do you use those guidelines in your practice?
17 A Indirectly. I mean they're -- they are
18 guidelines. They are not the -- you know, meant to
19. determine in individual cases exactly what should be
20 done. But they're helpful guidelines to give you some
21 sense of, you know, appropriate, may be appropriate, and
22 inappropriate care.
23 Q And do you agree that a heart team approach to
24 revascularization is recommended in patients with
25 complex coronary artery disease?
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TIMOTHY FISCHELL, M.D. January 22, 2020
GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 30
A Yes.
Q Did Mr. Greer, based upon his coronary --
diagnostic coronary catheterization, have complex
coronary artery disease on September lst, 2017?
A Yes.
Q Do you agree, disagree or have no opinion with
this statement? Coronary -- coronary artery bypass
grafting improves survival and is beneficial in patients
with significant, greater than or equal to 70 percent
10 diameter stenosis in three major coronary arteries, with
11 or without involvement of the proximal LAD or in the
ae, proximal LAD plus one other major coronary artery.
13 A Do I agree with that as a general statement or
14 are you --
15 Q Yes.
16 A -- referring specifically to Mr. Greer? That's
7, an important distinction.
18 Q As a general statement.
ag A As a general statement, there are data
20 suggesting benefits of bypass surgery in certain
21 patients with three-vessel coronary disease.
22 Q Have you referred patients to heart surgeons
23 with triple-vessel disease for bypass surgery in your
24 career?
25 A Yes.
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TIMOTHY FISCHELL, M.D. January
22, 2020
GREER, III vs MARTIN MEMORIAL MEDICAL CENTER dl
ae
Q The -- are you familiar with the medical
literature that patients who have triple-vessel disease
who are diabetic and have decreased left ventricular
function have an increase in life expectancy with
coronary artery bypass grafting versus balloon
angioplasty?
A I think there are some literature that, again,
in a general spirit of -- of -- of medical therapy,
there are data that would support that statement.
10 _ Okay. And in regards to that -- that 2011
11 guideline for percutaneous coronary intervention, are
ale you familiar with the aspect of discussing informed
ae) consent?
14 A Yes.
15 Q Okay. Do -- do you agree, disagree or have no
16 opinion with this statement? Obtaining informed consent
17 for procedures is a legal and ethical necessity;
18 ideally, informed consent is obtained long before the
ao procedure so that the patient can fully consider
20 informed consent issues and discuss them with family or
21 other providers, avoiding any sense of coercion or lack
22 of informed consent.
23 MR. BUIGAS: Object. co. the: form.
24 MR. MITTELMARK: Mittelmark.
25 Object to the form.
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TIMOTHY FISCHELL, M.D. January 22, 2020
GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 32
THE WITNESS: Tl Phin thatwcta
BY MR. SILVA:
Q Do you agree, disagree or have no opinion?
A I generally agree that informed consent should
be given to patients. I mean that's basically what
that's saying. Appropriate informed consent should be
given that -- you know, just to clarify that in
different situations, you know, informed consent can be
given in more full ways, and_in certain urgent
10 situations in less -- with less full consideration, it
eee depends on the -- on the individual situation. But yes,
12 informed consent should be given.
13 . Do you agree or disagree or have no opinion
14 with this statement? If diagnostic catheterization
15 reveals anatomy that poses a particularly high risk or
16 for which the superiority of angioplasty compared to
el other strategies is unclear, the pre-catheterization
18 informed consent discussion may be inadequate.
19 MR. MITTELMARK: Mittelmark.
20 Object to the form.
21 MR. BUIGAS: Join.
22 THE WITNESS: I don't disagree with that.
23 BY MR. SILVA:
24 Q Okay. Will you agree, disagree or have no
25 opinion with this statement? In those such cases,
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TIMOTHY FISCHELL, M.D. January
22, 2020
GREER, III vs MARTIN MEMORIAL MEDICAL CENTER 33
deferral of balloon angioplasty until additional
informed consent discussions and/or complications occur
may be appropriate even though it inconveniences the
patient and the health care system?
MR. MITTELMARK: Mittelmark.
Obijece co. che. Lorne
MR. BUIGAS: Join.
THE WITNESS: I think the important word there
is "may be appropriate." Tt edi Gilbey -- it didn't make a
10 concrete statement, "is always appropriate." But there
aed may be situations, and every case is slightly different,
12 where additional discussion should be had. So yeah,
13 there are cases where that's appropriate.
14 BY MR. SILVA:
15 Q And do you agree, disagree or have no opinion
16 with the statement that in those types of cases it's the
17 responsibility of the cardiac interventionalist to act
18 in the patient's best interest?
19 A It is always the interventional cardiologist's
20 job to act in the patient's best interest. No one can
21 argue about that.
22 Q Do you agree that acting in the patient's best
23 interest would include pre-interventional seeking of
24 advice, assistance or consultation from colleagues, when
25 such consultation would benefit the patient?
2
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TIMOTHY FISCHELL, M.D. January 22, 2020
GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 34
A I think that's a circular question. NOU ES
saying if a consultation would benefit, shouldn't you do
this to benefit the patient. And yeah, if consultation
would -- would benefit the patient, and/or alter things
in a way that would benefit a patient, consultation
would be appropriate.
Q Have you consulted heart surgeons before in
your career after a diagnostic cardiac cath?
A Yes.
10 Q The -- are you familiar with the -- in the 2011
11 guideline for percutaneous coronary intervention
12 guidelines with the paragraphs regarding potential
ale conflicts of interest?
14 A Not -- not specifically familiar. I mean, you
15 know, it is a document that's like 30 or 40 pages long
16 or something. So I can't say I've memorized sections
17 like that, or any of the sections. But I'm familiar
18 with the document in general.
19 Q Do you agree or disagree with the statement
20 that patients with the performance of the timing of
21 balloon angioplasty after diagnostic cardiac cath may
22 pose additional ethical dilemmas?
23 A I'm not sure I agree or disagree with that.
24 Q Okay. Are you familiar with the issue of self
25 referral through which diagnostic catheterization often
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TIMOTHY FISCHELL, M.D. January 22, 2020
GREER, II] vs MARTIN MEMORIAL MEDICAL CENTER 35
——
leads seamlessly to balloon angioplasty by the same
operator?
A I'm going to try and understand the question.
Am I familiar with the concept of self referral? Is
that the question?
Q Yes.
A Yes, I'm familiar with that concept.
Q Okay. Do you agree, disagree or have no
opinion with the statement that the interventionalist
10 has an ethical obligation to the patient to consider all
a1 treatment options, consult with additional specialists,
12 that is, heart surgeons; when their input would be
eles helpful to the patient, avoid unnecessary interventional
14 procedures, and allow the patient to consult family
eS members and other physicians?
16 MR. BUIGAS: Object. to. the torn.
17 MR. MITTELMARK: Join.
18 THE WITNESS: In general, I --
19 BY MR. SILVA:
20 Q You can answer, Doctor.
ai A In general, I -- I would agree with that
22 statement.
23 Q Was Mr. Greer in clinical cardiogenic shock
24 before September 1st, 2017?
25 A Cardiogenic shock? I think he had not
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TIMOTHY FISCHELL, M.D. January
22, 2020
GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 2
1 be visible and were not visible.
Q Have you -- are you aware of the medical
literature that a percutaneous transluminal angioplasty
is indicated for a STEMI patient but not for a non-STEMI
patient?
MR. BUIGAS: Objection to form.
THE WITNESS: Are you saying that intervention
is not an appropriate thing to do in a non-STEMI
patient?
10 BY MR. SILVA:
11 Q Have you seen any literature or written any
12 literature to that effect?
a) A It's actually malpractice not to perform
14 intervention in a severely obstructed vessel that's
15 caused a non-STEMI. That literature is extremely clear.
16 It would be malpractice not to perform intervention on
17 that vessel.
18 Q Does that -- does that literature have any
19 bearing on whether the patient is stable or whether the
20 patient is in cardiogenic shock? Do you know?
21 A It -- regardless, it would be malpractice not
22 to intervene in a non-STEMI patient, whether they're
23 stable or sick.
24 Are you familiar with the -- with the paper by
25 Judith Hochman?
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TIMOTHY FISCHELL, M.D. January 22, 2020
GREER, III vs MARTIN MEMORIAL MEDICAL CENTER 113
—
A als -- I know Judith Hochman. She's probably
published 3- or 400 papers. Which paper exactly are you
referring to?
Q Are you familiar with her paper specifically:
"Revascularization of acute myocardial infarction
complicated by cardiogenic shock"?
A I am not familiar with that -- with that paper,
no
Q Have you ever seen any papers authored by
10 Judith Hochman that state that you can perform balloon
il angioplasty on a patient who is hemodynamically stable
12 in an artery that's been occluded for four days?
an) MR. BUIGAS: Objection to the form.
14 THE WITNESS: I'm not familiar with that
a5 literature. I mean with that article that you're
16 referring to, presumably.
17 BY MR. SILVA:
18 Q Is it below the standard of care to balloon
19 angioplasty an artery that cannot be visualized on a
20 cardiac cath?
2m A Absolutely not. It's definitely within the
22 standard of care.
23 Q Are you familiar with introducing dye through a
24 hundred percent occluded vessel by guide wire to
25 determine what the anatomy is beyond the occlusion?
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ANDREW P. SELWYN, M.D. Se eee
GREER vs MARTIN MEMORIAL MEDICAL CENTER
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT IN AND FOR MARTIN COUNTY, FL
Civil Action No. 2019CA000015CAAXMX
TRI IR RI TR ROI OR IR IFO IO KR II
FREDERIC CHARLES GREER, III and
MELISSA ANNE GREER, as Husband
and Wife and FREDERIC CHARLES
GREER, IIIT and MELISSA ANNE
GREER, Individuall
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Filing # 105351198 E-Filed 03/24/2020 01:02:03 PM IN THE CIRCUIT COURT OF THE ee OR MARTIN COUNTY, FLORIDA FREDERIC CHARLES GREER, III, and MELISSA ANNE GREER, as Husband and Wife, and FREDERIC CHARLES GREER, III CASE NO: 2019-CA-000015 and MELISSA ANNE GREER, individually, Plaintiffs, vs. MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN MEDICAL CENTER, a Florida Corporation, KUNAL CHAUDHRY, M.D.; and CARDIOLOGY ASSOCIATES OF STUART, P.A., a Florida profit corporation, Defendants. / DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER’s d/b/a MARTIN MEDICAL CENTER MOTION IN LIMINE REGARDING REFERENCE TO AUTHORITATIVE TEXTS Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN MEDICAL CENTER, (“MMMC’”) by and through its undersigned counsel, moves for an order in limine to preclude Plaintiffs from introducing evidence of, or making reference to, any journal articles, medical textbooks, committee guidelines, or other medical publications as authoritative texts and/or learned treatises during the direct examination of Plaintiffs’ expert witnesses: Andrew Selwyn, M.D., George Tolis, M.D., Eli Gelfand, M.D., Robert Eilers, M.D., Nicholas Suite, M.D., and Ronald Missun, Ph.D., and quite possibly, during the direct examination of other witnesses. In support of its motion, Defendant states as follows: Florida law prohibits the use of such materials to bolster the testimony of an expert witness during direct examination. Authoritative publications cannot be used to bolster the credibility of an expert or to supplement an opinion of the expert that has already been formed, nor can medical treatises be used to bolster the testimony of a physician on direct examination. Electronically Filed Martin 03/24/2020 01:02 PM GREER V MMMC et. al. 2019-CA-00015 Fla. Stat. §90.706; Phillip Morris, Inc. v. Janoff, 901 So. 2d 141 (Fla. 3d DCA 2004), rehearing denied (May 18, 2005); Medina v, Variety Children’s Hosp., 438 So. 2d 138 (Fla. 34 DCA 1983). Likewise, in Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989), the Fourth District Court found that textual material from a medical treatise could not be read by a motorist’s attorney to a motorist’s expert witness or used by the witness to bolster his own opinion testimony during direct examination in a negligence action. See also Linn v. Fossum, 946 So. 2d 1032, 1039 (Fla. 2007)(“it is inappropriate to allow experts on direct examination to bolster their credibility or to supplement their opinions by ‘testifying that a treatise agrees with their opinion.’”); Schwarz y. State, 695 So. 2d 452, 455 (Fla. 4" DCA 1997)(“Expert cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion.”). Here, the Court should preclude Plaintiffs and their experts from citing, mentioning, or making any reference to any medical treatise or literature during direct examination of their experts or any treating physician. Next, it is reversible error to allow the cross-examination of an expert witness with medical literature if the expert or court does not recognize that literature as authoritative. In Myron y. Doctors Gen. Hosp., Ltd., 704 So. 2d 1083, 1086 (Fla. 4" DCA 1997), the Fourth District Court .held that “the trial court erred in admitting Child Protection Team reports of a child abuse investigation and in permitting the defense to cross-examine the appellants’ experts with non-authoritative medical treatises. These errors were not harmless and consequently necessitate a new trial.” Jd. The Myron Court further held that “the treatises should not have been used in cross-examination unless either the expert or the trial court recognized their GREER V MMMC, et. al. 2019-CA-00015 authoritativeness. Since neither did, it was error to permit cross-examination using the treatises.” Id. at 1092. In this case, Plaintiffs have failed to establish the authoritativeness of any medical treatises or literature through either Defendant’s experts. Defense expert Kim Klancke, M.D. was not asked whether he believed any medical treatises or literature was authoritative. Defense expert Michael Carmichael, M.D. testified: Q Do you consider any type of literature authoritative? A No. See Excerpt of Deposition Transcript of Dr. Carmichael, p. 38, a copy of which is attached hereto as Exhibit “A.” Defense expert Timothy Fischell, M.D. testified: Q Do you consider any medical literature authoritative? A No, not really. See Excerpt of Deposition Transcript of Dr. Fischell, p. 29, a copy of which is attached hereto as Exhibit “B.” Finally, Plaintiffs’ counsel questioned a number of Defense experts by referencing or quoting certain ACCF/AHA Guidelines, as well as a medical literature article by Judith Hochman, M.D. See Exhibit “B,” pp. 29-35, 112-113. This is precisely the type of impermissible questions that Florida law precludes. However, Defense counsel is permitted to cross examine Plaintiffs’ expert Andrew Selwyn, M.D., on these guidelines because he testified that ACC/AHA/SCAI were authoritative. See Excerpt of November 2019 Deposition Transcript of Dr. Selwyn, p. 37, a copy of which is attached hereto as Exhibit “C.” Thus, while Plaintiffs’ counsel must be precluded from asking GREER V MMMC et. al. 2019-CA-00015 Dr. Selwyn about these guidelines during direct examination, under the relevant case law in Florida, and because Dr. Selwyn acknowledged under oath that these guidelines were authoritative, Defendant counsel is permitted to use them to cross-examine Dr. Selwyn at the time of trial. WHEREFORE, Defendant, MARTIN MEMORIAL MEDICAL CENTER d/b/a MARTIN MEDICAL CENTER, respectfully requests this Court to preclude Plaintiffs from introducing evidence of, or making reference to, any journal articles, medical textbooks, committee guidelines, or other medical publications as authoritative texts and/or learned treatises during the direct examination of Plaintiffs’ expert witnesses or during the direct examination of other witnesses in this medical negligence case. Further, MMMC requests this Court to preclude Plaintiffs’ experts or any treating physician from referencing “the literature” generally during cross-examination, unless such literature is identified specifically and was relied upon in forming that expert’s opinion during the discovery deposition. Plaintiffs should not be permitted to circumvent the rule precluding the bolstering of an expert’s opinion during direct examination by having the expert reference “general” medical literature during cross-examination. Finally, MMMC requests this Court to preclude Plaintiffs’ counsel from using, citing, or referencing in any way any medical treatise or literature during the cross-examination of Defendant’s expert witnesses, as neither those experts, nor the Court, has established any medical treatises or literature as authoritative in this case. GREER V MMMC, et. al. 2019-CA-00015 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 4, of March, 2020, a copy of the foregoing was served via the Florida E-Filing Portal to the parties on the attached service list. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Attorneys for Martin Memorial Medical Center, Inc. 200 East Las Olas Blvd., Suite 2100 Fort Lauderdale, FL 33301 Phone: (954) 462-9500 Fax: (954) 462-9567 yy. . a OMAS G. AUB IN, ESQUIRE FB 008060 taubin@stearnsweayer.com weaver-Com MATTHEW S. PODOLNICK, ESQUIRE FBN: 112126 mpodolnick@stearnsweaver.com GREER V MMMC , et. al. 2019-CA-00015 SERVICE LIST Peter J. Somera Jr., Esq. Keith J. Puya, Esq. Paul M. Silva, M.D., Esq. Hector R. Buigas, Esq. Somera & Silva, LLP Law Offices of Keith J. Puya, P.A. 2255 Glades Road, Suite 232W 4880 Donald Ross Road, Suite 225 Boca Raton, FL 33431 Palm Beach Gardens, FL 33418 Phone: (561) 981-8881 Phone: (561) 408-3772 Fax: (561) 981-8887 Fax: (561) 408-3759 pleadings@somerasilva.com service @} yu yalaw.com litigation somerasilva.com Attorneys for Defendants Kunal Chaudhry, Attorneys for Plaintiffs M.D. and Cardiology Associates of Stuart, PA, —— Dinah Stein, Esq. Adam Richardson, Esq. Hicks, Poerter, Ebenfeld & Stein Burlington & Rockenbach, P.A. 799 Brickell Plaza, 9" Floor 444 West Railroad Avenue Miami, FL 33131 West Palm Beach, FL 33401 Phone: (305) 375-8171 Tel: 561-721-0400 dstein@mhickslaw.com KSI ajr@FLAppellateLaw.com Attorneys for Defendants Kunal Chaudhry, fa@FLAppellateLaw.com M.D. and Cardiology Associates of Stuart, Appellate attorneys for Plaintiffs P.A. MICHAEL CARMICHAEL M.D. January 16, 2020 GREER vs MARTIN MEMORIAL a ee = IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA, CIVIL ACTION FREDERIC CHARLES GREER, TII and MELISSA ANNE GREER, as Husband and Wife, and FREDERIC CHARLES GREER, III and MELISSA ANNE GREER, individually, Plaintiffs, vs CASE NO 2019CA000015 MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a MARTIN MEDICAL CENTER, a Florida Corporation; KUNAL CHAUDHRY, M.D. and CARDIOLOGY ASSOCIATES OF STUART, P.A., a Florj}@eBxogre. Corporation, Defendants. ——S a / DEPOSITION OF: MICHAEL J. CARMICHAEL, M.D. DATE: Thursday, January 16, 2020 TIME: 10:02 a.m. to 4:01 p.m. LOCATION: Fort Myers Court Reporting 2180 West First Street, #120 Fort Myers, Florida 33901 TAKEN BY: Counsel for Plaintiffs REPORTER: Julie A. Winn, RPR, CRR @ ESQUIRE es . areneencenenineritenprerenererteteretn 800.211.DEPgy 6 EsquireSolu EXHIBIT 1A MICHAEL CARMICHAEL M.D. January 16, 2020 eee oe 38 a Q Doesn't the medical literature specifically state that the only type of intervention for revascularization that increases a patient's life span in a patient who's a diabetic, has decreased left ventricular function and has triple vessel disease is coronary artery bypass graft? MR. BUIGAS: Object to the form. Go ahead. BY MR. SILVA: Q You can answer. Isn't that true? 10 A The literature would say that the only thing 11 that we do in medicine that has ever prolonged life is 12 the presence of a left internal mammary artery to the 13 LAD. 14 So, medical management, stenting, angioplasty, aL surgery, the only thing that has ever been shown, and 16 that's out of Cleveland Clinic -- that has ever been 17 shown to prolong life is the presence of an internal 18 mammary to the LAD. Everything else that we do is 19 symptomatic relief trying to improve quality of life, 20 but the only thing that's ever been shown to improve a longevity is a mammary to the LAD. 22 Q Do you consider any type of literature 23 authoritative? 24 A No. 25 Q Are you familiar with the 2011 ACCF/American ee = = = = ee eee = = Z ESQUIRE dEPosition soLuTIONS 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 4 GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER =. IN THE CIRCUIT COURT OF THE 19TH JUDICIAL DISTRICT IN AND FOR MARTIN COUNTY, FLORIDA FREDERIC CHARLES GREER III and MELISSA ANNE GREER, as husband and wife, and FREDERIC CHARLES GREER III and MELISSA ANNE GREER, individually, Plaintiffs, vs. No. 2019CA000015 MARTIN MEMORIAL MEDICAL CENTER, INC., dba MARTIN MEDICAL CENTER, a Florida corporation, KUNAL CHAUDHRY, 10 M.D.,; and CARDIOLOGY ASSOCIATES OF STUART, RAY, a 11 Florida Profit Corporation, 12 Defendants. 13 14 15 VIDEO-CONFERENCED DEPOSITION OF 16 IMOTHY FISCHELL, M.D. 17 18 19 Date: Wednesday, January 22, 2020 20 Time: 10:04 A.M. ee 22 Location La Playa Carmel Camino Real at 8th Avenue 23 Carmel, California 24 25 SS a —~ ZBeESQ UIRE DEPOSITION SOLUTIONS, 800.211. DEPQ EsquireSolui EXHIBIT 1 TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 29 _ A I'm not aware of that. Q Did you see any evidence in the medical records that Dr. Chaudhry attempted to call Dr. Silvestry prior to the coronary perforation? A I'm not aware of that. Q Do you consider any medical literature authoritative? A No, not really. Q Are you a member of the American Heart 10 Association? 11 A Yeah. 12 Q Have you ever reviewed the 2011 ACCF American 13 Heart Associatiom SCAI guideline for percutaneous 14 coronary intervention? 15 A Yes. 16 Q Do you use those guidelines in your practice? 17 A Indirectly. I mean they're -- they are 18 guidelines. They are not the -- you know, meant to 19. determine in individual cases exactly what should be 20 done. But they're helpful guidelines to give you some 21 sense of, you know, appropriate, may be appropriate, and 22 inappropriate care. 23 Q And do you agree that a heart team approach to 24 revascularization is recommended in patients with 25 complex coronary artery disease? { eee a = = = oe ee | BESQ UIRE. DEPOSITION SOLUTIONS, 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 30 A Yes. Q Did Mr. Greer, based upon his coronary -- diagnostic coronary catheterization, have complex coronary artery disease on September lst, 2017? A Yes. Q Do you agree, disagree or have no opinion with this statement? Coronary -- coronary artery bypass grafting improves survival and is beneficial in patients with significant, greater than or equal to 70 percent 10 diameter stenosis in three major coronary arteries, with 11 or without involvement of the proximal LAD or in the ae, proximal LAD plus one other major coronary artery. 13 A Do I agree with that as a general statement or 14 are you -- 15 Q Yes. 16 A -- referring specifically to Mr. Greer? That's 7, an important distinction. 18 Q As a general statement. ag A As a general statement, there are data 20 suggesting benefits of bypass surgery in certain 21 patients with three-vessel coronary disease. 22 Q Have you referred patients to heart surgeons 23 with triple-vessel disease for bypass surgery in your 24 career? 25 A Yes. Z ESQUIRE DEPOSITION SOLUTIONS 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, III vs MARTIN MEMORIAL MEDICAL CENTER dl ae Q The -- are you familiar with the medical literature that patients who have triple-vessel disease who are diabetic and have decreased left ventricular function have an increase in life expectancy with coronary artery bypass grafting versus balloon angioplasty? A I think there are some literature that, again, in a general spirit of -- of -- of medical therapy, there are data that would support that statement. 10 _ Okay. And in regards to that -- that 2011 11 guideline for percutaneous coronary intervention, are ale you familiar with the aspect of discussing informed ae) consent? 14 A Yes. 15 Q Okay. Do -- do you agree, disagree or have no 16 opinion with this statement? Obtaining informed consent 17 for procedures is a legal and ethical necessity; 18 ideally, informed consent is obtained long before the ao procedure so that the patient can fully consider 20 informed consent issues and discuss them with family or 21 other providers, avoiding any sense of coercion or lack 22 of informed consent. 23 MR. BUIGAS: Object. co. the: form. 24 MR. MITTELMARK: Mittelmark. 25 Object to the form. Z ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 32 THE WITNESS: Tl Phin thatwcta BY MR. SILVA: Q Do you agree, disagree or have no opinion? A I generally agree that informed consent should be given to patients. I mean that's basically what that's saying. Appropriate informed consent should be given that -- you know, just to clarify that in different situations, you know, informed consent can be given in more full ways, and_in certain urgent 10 situations in less -- with less full consideration, it eee depends on the -- on the individual situation. But yes, 12 informed consent should be given. 13 . Do you agree or disagree or have no opinion 14 with this statement? If diagnostic catheterization 15 reveals anatomy that poses a particularly high risk or 16 for which the superiority of angioplasty compared to el other strategies is unclear, the pre-catheterization 18 informed consent discussion may be inadequate. 19 MR. MITTELMARK: Mittelmark. 20 Object to the form. 21 MR. BUIGAS: Join. 22 THE WITNESS: I don't disagree with that. 23 BY MR. SILVA: 24 Q Okay. Will you agree, disagree or have no 25 opinion with this statement? In those such cases, — - ZBESQ UIRE berosition souuTions 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, III vs MARTIN MEMORIAL MEDICAL CENTER 33 deferral of balloon angioplasty until additional informed consent discussions and/or complications occur may be appropriate even though it inconveniences the patient and the health care system? MR. MITTELMARK: Mittelmark. Obijece co. che. Lorne MR. BUIGAS: Join. THE WITNESS: I think the important word there is "may be appropriate." Tt edi Gilbey -- it didn't make a 10 concrete statement, "is always appropriate." But there aed may be situations, and every case is slightly different, 12 where additional discussion should be had. So yeah, 13 there are cases where that's appropriate. 14 BY MR. SILVA: 15 Q And do you agree, disagree or have no opinion 16 with the statement that in those types of cases it's the 17 responsibility of the cardiac interventionalist to act 18 in the patient's best interest? 19 A It is always the interventional cardiologist's 20 job to act in the patient's best interest. No one can 21 argue about that. 22 Q Do you agree that acting in the patient's best 23 interest would include pre-interventional seeking of 24 advice, assistance or consultation from colleagues, when 25 such consultation would benefit the patient? 2 ZESQ UIRE OFPOSITION SOLUTIONS 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 34 A I think that's a circular question. NOU ES saying if a consultation would benefit, shouldn't you do this to benefit the patient. And yeah, if consultation would -- would benefit the patient, and/or alter things in a way that would benefit a patient, consultation would be appropriate. Q Have you consulted heart surgeons before in your career after a diagnostic cardiac cath? A Yes. 10 Q The -- are you familiar with the -- in the 2011 11 guideline for percutaneous coronary intervention 12 guidelines with the paragraphs regarding potential ale conflicts of interest? 14 A Not -- not specifically familiar. I mean, you 15 know, it is a document that's like 30 or 40 pages long 16 or something. So I can't say I've memorized sections 17 like that, or any of the sections. But I'm familiar 18 with the document in general. 19 Q Do you agree or disagree with the statement 20 that patients with the performance of the timing of 21 balloon angioplasty after diagnostic cardiac cath may 22 pose additional ethical dilemmas? 23 A I'm not sure I agree or disagree with that. 24 Q Okay. Are you familiar with the issue of self 25 referral through which diagnostic catheterization often Z ESQUIRE DEPOSITION SOLUTIONS 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, II] vs MARTIN MEMORIAL MEDICAL CENTER 35 —— leads seamlessly to balloon angioplasty by the same operator? A I'm going to try and understand the question. Am I familiar with the concept of self referral? Is that the question? Q Yes. A Yes, I'm familiar with that concept. Q Okay. Do you agree, disagree or have no opinion with the statement that the interventionalist 10 has an ethical obligation to the patient to consider all a1 treatment options, consult with additional specialists, 12 that is, heart surgeons; when their input would be eles helpful to the patient, avoid unnecessary interventional 14 procedures, and allow the patient to consult family eS members and other physicians? 16 MR. BUIGAS: Object. to. the torn. 17 MR. MITTELMARK: Join. 18 THE WITNESS: In general, I -- 19 BY MR. SILVA: 20 Q You can answer, Doctor. ai A In general, I -- I would agree with that 22 statement. 23 Q Was Mr. Greer in clinical cardiogenic shock 24 before September 1st, 2017? 25 A Cardiogenic shock? I think he had not ZESQ UIRE DEPOSITION SOLUTIONS 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, Ill vs MARTIN MEMORIAL MEDICAL CENTER 2 1 be visible and were not visible. Q Have you -- are you aware of the medical literature that a percutaneous transluminal angioplasty is indicated for a STEMI patient but not for a non-STEMI patient? MR. BUIGAS: Objection to form. THE WITNESS: Are you saying that intervention is not an appropriate thing to do in a non-STEMI patient? 10 BY MR. SILVA: 11 Q Have you seen any literature or written any 12 literature to that effect? a) A It's actually malpractice not to perform 14 intervention in a severely obstructed vessel that's 15 caused a non-STEMI. That literature is extremely clear. 16 It would be malpractice not to perform intervention on 17 that vessel. 18 Q Does that -- does that literature have any 19 bearing on whether the patient is stable or whether the 20 patient is in cardiogenic shock? Do you know? 21 A It -- regardless, it would be malpractice not 22 to intervene in a non-STEMI patient, whether they're 23 stable or sick. 24 Are you familiar with the -- with the paper by 25 Judith Hochman? Z ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com TIMOTHY FISCHELL, M.D. January 22, 2020 GREER, III vs MARTIN MEMORIAL MEDICAL CENTER 113 — A als -- I know Judith Hochman. She's probably published 3- or 400 papers. Which paper exactly are you referring to? Q Are you familiar with her paper specifically: "Revascularization of acute myocardial infarction complicated by cardiogenic shock"? A I am not familiar with that -- with that paper, no Q Have you ever seen any papers authored by 10 Judith Hochman that state that you can perform balloon il angioplasty on a patient who is hemodynamically stable 12 in an artery that's been occluded for four days? an) MR. BUIGAS: Objection to the form. 14 THE WITNESS: I'm not familiar with that a5 literature. I mean with that article that you're 16 referring to, presumably. 17 BY MR. SILVA: 18 Q Is it below the standard of care to balloon 19 angioplasty an artery that cannot be visualized on a 20 cardiac cath? 2m A Absolutely not. It's definitely within the 22 standard of care. 23 Q Are you familiar with introducing dye through a 24 hundred percent occluded vessel by guide wire to 25 determine what the anatomy is beyond the occlusion? Z ESQUIRE 800.211.DEPO (3376) EsquireSolutions.com ANDREW P. SELWYN, M.D. Se eee GREER vs MARTIN MEMORIAL MEDICAL CENTER IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FL Civil Action No. 2019CA000015CAAXMX TRI IR RI TR ROI OR IR IFO IO KR II FREDERIC CHARLES GREER, III and MELISSA ANNE GREER, as Husband and Wife and FREDERIC CHARLES GREER, IIIT and MELISSA ANNE GREER, Individuall