On July 08, 101 a
No Value
was filed
involving a dispute between
Burg, Deborah A,
Burg, Nicole,
Burg, Rick,
and
Bruner, Susan,
Criss, Cathy,
Domingo E. Galliano, Jr., P.A.,
Fawcett Memorial Hospital, Inc.,
Galliano, Domingo J,
Harbor Medical Group, Llc,
Joseph, Sovi,
Kamal, Ahsan,
Kiri, Nandini,
Life Care Physician Services, Llc,
Maloney, Vance 3,
Millennium Physician Group, Llc,
Nandini Kiri, M.D., P.A.,
Punta Gorda Medical Investors, Llc,
Rioux, John,
Rodriguez-Martin, Arturo,
Rodriguez-Martin, M.D., P.L., Arturo,
Sovi Joseph, M.D., P.A.,
Utech, Abigail,
Weerasinghe, Dilendra,
West Florida Physicians Network, Llc,
for Medical Malpractice
in the District Court of Charlotte County.
Preview
Filing # 143025879 E-Filed 02/01/2022 09:50:09 AM
IN THE CIRCUIT COURT OF THE
20% JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
DEBORAH COOPER BURG, by and through her CASE NO.: 2020-000616 CA
Court-appointed Guardian, RICKY BURG; NICOLE
BURG, her daughter; and RICKY BURG, her spouse,
Plaintiffs,
Vv
WEST FLORIDA PHYSICIAN NETWORK, LLC;
DILENDRA WEERASINGHE; JOHN RIOUX;
FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL; SUSAN
BRUNER; ABIGAIL UTECH; NANDINI KIRI, M.D.,
P.A.; NANDINI KIRI; HARBOR MEDICAL GROUP,
LLC; AHSAN KAMAL; SOVI JOSEPH, M.D., P.A.;
SOVI JOSEPH; DOMINGO E. GALLIANO, JR., P.A.;
DOMINGO GALLIANO, JR.; ARTURO RODRIGUEZ-
MARTIN, M.D., P.L.; ARTURO RODRIGUEZ-
MARTIN; MILLENNIUM PHYSICIAN GROUP, LLC;
CATHY CRISS; LIFECARE CENTERS OF AMERICA,
INC.; PUNTA GORDA MEDICAL INVESTORS, LLC
d/b/a LIFE CARE CENTER OF PUNTA GORDA;
LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE
MALONEY, IIL,
Defendants.
ee /
DEFENDANTS, CATHY CRISS, D.O. AND MILLENNIUM PHYSICIAN GROUP, LLC’S
RESPONSE IN OPPOSITION TO LIFE CARE DEFENDANTS’ MOTION TO STRIKE
Defendants, CATHY CRISS, D.0. and MILLENNIUM PHYSICIAN GROUP, LLC, by and
through their undersigned counsel, hereby oppose and respond as follows to the January 24
Motion to Strike or for a Protective Order Regarding Expert Witness filed by co-defendants
Life Care Centers of America, Inc., Punta Gorda Medical Investors, LLC d/b/a Life Care Center
of Punta Gorda, Life Care Physician Services, LLC, and Dr. Vance Maloney (hereinafter,
Cole, Scott & Kissane
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CASE NO.: 2020-000616 CA
collectively, “LCC-PG”. While the Motion presents a reasonable case for a protective order,
there is zero basis under Florida law to strike an expert on these grounds.
£ This action against Dr. Cathy Criss and Millennium Physician Group, as her
employer, is based on the allegations that Dr. Criss should have, but failed to recognize the
development of nutritional deficiencies, including thiamine deficiency, and to prevent the
same by administering thiamine supplementation herself or alerting other care providers to
ensure such supplementation was given. See Am. Compl. J] 660-62.
2 These allegations are based on Plaintiff Deborah Burg’s
admission/interactions with Millennium Home Care (a nonparty); similar claims are made
against LCC-PG, based on the patient’s subsequent admission to that facility.
3 On November 1, 2021, Plaintiffs’ counsel disclosed a list of expert witnesses
that includes Dr. Arthur Herold who is expected to testify that—
Dr. Cathy Criss breached the accepted standard of care and prevailing
professional practices by approving a Plan of care that was not the accurate
plan of care, but based upon the Plan of Care that indicated that Deborah
Cooper Burg was dyspneic and confused, Dr. Cathy Criss who assumed the
responsibility of being the attending physician of Deborah Cooper Burg
deviated from the accepted standards of care in not recognizing from the
Plan of Care that Deborah Cooper Burg was in need of an immediate
evaluation in an acute hospital setting.
4. Following this (late) disclosure of new, plan-of-care-based liability theories,
Dr. Criss and Millennium disclosed expert Steven H. Selznick, D.O., F.A.A.F.P., C.M.D., an
osteopathic physician specializing in family medicine, with specific background in the
treatment of patients in home care settings.
Page 2
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CASE NO.: 2020-000616 CA
5 Among his lengthy work history, Dr. Selznick had served (as an independent
contractor) as Medical Director of Life Care Center of Altamonte Springs, an entity distinct
from but apparently affiliated in some manner with LCC-PG.
6. LCC-PG now moves to strike Dr. Selznick based on the possibility that
Plaintiffs’ counsel might question Dr. Selznick regarding—
a. “{LCC-PG] and its facilities, attempting to obtain additional fact discovery
regarding these Defendants;” and
“the standard of care for physicians similar to Dr. Selznick, i.e., that practice
in Life Care nursing homes, to obtain expert testimony against these
Defendants.”
7 The Motion fails to cite, nor is the undersigned aware of any authority
establishing or suggesting an expert can be stricken on such grounds.
8. Dr. Selznick’s retention and evaluation were preceded by a reasonable and
proper conflict check.
9 Dr. Selznick had no knowledge of this case prior to his involvement as an
expert; he is familiar with Eduardo Diaz, who was deposed as a corporate representative of
LCC-PG, but they have never discussed this case.!
1 Notably, LCC-PG does not contend that any such discussions occurred, or that Dr. Selznick
was provided any other confidential information. Comparing Sultan v. Earing-Doud, 852
So.2d 313 (Fla. 4th DCA 2003), if prior consultation and retention by the opposing party in
the same matter is not grounds strike an expert, prior indirect association with a co-
defendant certainly cannot be.
Page 3
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Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West
CASE NO.: 2020-000616 CA
10. Whatever limited knowledge Dr. Selznick, a former independent contractor,
might have regarding Life Care’s general corporate structure is immaterial and inadmissible.
11. The prospect that Plaintiffs’ counsel might pursue improper and untimely fact
discovery on these matters is an issue that LCC-PG’s counsel can address with Plaintiffs’
counsel if and when it occurs; it is not grounds to strike an expert.
12. Likewise, LCC-PG’s proposition that a defense expert can be stricken because
his expertise is broad enough that he might be questioned about care rendered by other
defendants has no basis in Florida law.
13. The undersigned agrees with LCC-PG that such improper and immaterial
questioning would be a needless distraction from the opinions Dr. Selznick will offer at trial,
but the solution to overbroad and improper discovery is an order limiting overbroad and
improper discovery, not an order excluding the witness altogether and punishing these
Defendants for another party’s potential discovery misconduct.
14. Whatever the motivation for this indirect attack by LCC-PG, the Motion has no
discernable legal basis and is worthy of sanctions, which are not requested at this time
simply because Court can dispose of this matter in short order in the upcoming hearing.
WHEREFORE, Defendants Dr. Cathy Criss and Millennium Physician Group
respectfully request an order denying the motion to strike their expert, Dr. Selznick, and
granting such other relief the Court finds to be appropriate.
Page 4
Cole, Scott & Kissane
www.esklegal.com
Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West
CASE NO.: 2020-000616 CA
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 1st day of February, 2022, a true and correct copy of
the foregoing was filed with the Clerk of Charlotte County by using the Florida Courts e-Filing
Portal, which will send an automatic e-mail message all attorneys of record.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendants MILLENIUM PHYSICIAN GROUP,
LLC and DR. CATHY CRISS
Cole, Scott & Kissane Building
27300 Riverview Center Boulevard, Suite 200
Bonita Springs, Florida 34134
Telephone (239) 690-7900
Facsimile (239) 738-7778
Primary e-mail: ron.campbell@csklegal.com
Secondary e-mail: daniel.calvert@csklegal.com
Alternate e-mail: juliette.heller@csklegal.com
By s/ Daniel C. Calvert
RON M. CAMPBELL
Florida Bar No.: 827061
DANIEL C. CALVERT
Florida Bar No.: 116544
Page 5
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www.esklegal.com
Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West
Preview
Filing # 143025879 E-Filed 02/01/2022 09:50:09 AM IN THE CIRCUIT COURT OF THE 20% JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA DEBORAH COOPER BURG, by and through her CASE NO.: 2020-000616 CA Court-appointed Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her spouse, Plaintiffs, Vv WEST FLORIDA PHYSICIAN NETWORK, LLC; DILENDRA WEERASINGHE; JOHN RIOUX; FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL; SUSAN BRUNER; ABIGAIL UTECH; NANDINI KIRI, M.D., P.A.; NANDINI KIRI; HARBOR MEDICAL GROUP, LLC; AHSAN KAMAL; SOVI JOSEPH, M.D., P.A.; SOVI JOSEPH; DOMINGO E. GALLIANO, JR., P.A.; DOMINGO GALLIANO, JR.; ARTURO RODRIGUEZ- MARTIN, M.D., P.L.; ARTURO RODRIGUEZ- MARTIN; MILLENNIUM PHYSICIAN GROUP, LLC; CATHY CRISS; LIFECARE CENTERS OF AMERICA, INC.; PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE MALONEY, IIL, Defendants. ee / DEFENDANTS, CATHY CRISS, D.O. AND MILLENNIUM PHYSICIAN GROUP, LLC’S RESPONSE IN OPPOSITION TO LIFE CARE DEFENDANTS’ MOTION TO STRIKE Defendants, CATHY CRISS, D.0. and MILLENNIUM PHYSICIAN GROUP, LLC, by and through their undersigned counsel, hereby oppose and respond as follows to the January 24 Motion to Strike or for a Protective Order Regarding Expert Witness filed by co-defendants Life Care Centers of America, Inc., Punta Gorda Medical Investors, LLC d/b/a Life Care Center of Punta Gorda, Life Care Physician Services, LLC, and Dr. Vance Maloney (hereinafter, Cole, Scott & Kissane www.esklegal.com Miami | Fort Lauderdale West | Fort Lauderdale East| West Palm Beach | Orlando | Jacksonville | Tampa Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West CASE NO.: 2020-000616 CA collectively, “LCC-PG”. While the Motion presents a reasonable case for a protective order, there is zero basis under Florida law to strike an expert on these grounds. £ This action against Dr. Cathy Criss and Millennium Physician Group, as her employer, is based on the allegations that Dr. Criss should have, but failed to recognize the development of nutritional deficiencies, including thiamine deficiency, and to prevent the same by administering thiamine supplementation herself or alerting other care providers to ensure such supplementation was given. See Am. Compl. J] 660-62. 2 These allegations are based on Plaintiff Deborah Burg’s admission/interactions with Millennium Home Care (a nonparty); similar claims are made against LCC-PG, based on the patient’s subsequent admission to that facility. 3 On November 1, 2021, Plaintiffs’ counsel disclosed a list of expert witnesses that includes Dr. Arthur Herold who is expected to testify that— Dr. Cathy Criss breached the accepted standard of care and prevailing professional practices by approving a Plan of care that was not the accurate plan of care, but based upon the Plan of Care that indicated that Deborah Cooper Burg was dyspneic and confused, Dr. Cathy Criss who assumed the responsibility of being the attending physician of Deborah Cooper Burg deviated from the accepted standards of care in not recognizing from the Plan of Care that Deborah Cooper Burg was in need of an immediate evaluation in an acute hospital setting. 4. Following this (late) disclosure of new, plan-of-care-based liability theories, Dr. Criss and Millennium disclosed expert Steven H. Selznick, D.O., F.A.A.F.P., C.M.D., an osteopathic physician specializing in family medicine, with specific background in the treatment of patients in home care settings. Page 2 Cole, Scott & Kissane www.esklegal.com Miami | Fort Lauderdale West | Fort Lauderdale East| West Palm Beach | Orlando | Jacksonville | Tampa Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West CASE NO.: 2020-000616 CA 5 Among his lengthy work history, Dr. Selznick had served (as an independent contractor) as Medical Director of Life Care Center of Altamonte Springs, an entity distinct from but apparently affiliated in some manner with LCC-PG. 6. LCC-PG now moves to strike Dr. Selznick based on the possibility that Plaintiffs’ counsel might question Dr. Selznick regarding— a. “{LCC-PG] and its facilities, attempting to obtain additional fact discovery regarding these Defendants;” and “the standard of care for physicians similar to Dr. Selznick, i.e., that practice in Life Care nursing homes, to obtain expert testimony against these Defendants.” 7 The Motion fails to cite, nor is the undersigned aware of any authority establishing or suggesting an expert can be stricken on such grounds. 8. Dr. Selznick’s retention and evaluation were preceded by a reasonable and proper conflict check. 9 Dr. Selznick had no knowledge of this case prior to his involvement as an expert; he is familiar with Eduardo Diaz, who was deposed as a corporate representative of LCC-PG, but they have never discussed this case.! 1 Notably, LCC-PG does not contend that any such discussions occurred, or that Dr. Selznick was provided any other confidential information. Comparing Sultan v. Earing-Doud, 852 So.2d 313 (Fla. 4th DCA 2003), if prior consultation and retention by the opposing party in the same matter is not grounds strike an expert, prior indirect association with a co- defendant certainly cannot be. Page 3 Cole, Scott & Kissane www.esklegal.com Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West CASE NO.: 2020-000616 CA 10. Whatever limited knowledge Dr. Selznick, a former independent contractor, might have regarding Life Care’s general corporate structure is immaterial and inadmissible. 11. The prospect that Plaintiffs’ counsel might pursue improper and untimely fact discovery on these matters is an issue that LCC-PG’s counsel can address with Plaintiffs’ counsel if and when it occurs; it is not grounds to strike an expert. 12. Likewise, LCC-PG’s proposition that a defense expert can be stricken because his expertise is broad enough that he might be questioned about care rendered by other defendants has no basis in Florida law. 13. The undersigned agrees with LCC-PG that such improper and immaterial questioning would be a needless distraction from the opinions Dr. Selznick will offer at trial, but the solution to overbroad and improper discovery is an order limiting overbroad and improper discovery, not an order excluding the witness altogether and punishing these Defendants for another party’s potential discovery misconduct. 14. Whatever the motivation for this indirect attack by LCC-PG, the Motion has no discernable legal basis and is worthy of sanctions, which are not requested at this time simply because Court can dispose of this matter in short order in the upcoming hearing. WHEREFORE, Defendants Dr. Cathy Criss and Millennium Physician Group respectfully request an order denying the motion to strike their expert, Dr. Selznick, and granting such other relief the Court finds to be appropriate. Page 4 Cole, Scott & Kissane www.esklegal.com Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West CASE NO.: 2020-000616 CA CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 1st day of February, 2022, a true and correct copy of the foregoing was filed with the Clerk of Charlotte County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message all attorneys of record. COLE, SCOTT & KISSANE, P.A. Counsel for Defendants MILLENIUM PHYSICIAN GROUP, LLC and DR. CATHY CRISS Cole, Scott & Kissane Building 27300 Riverview Center Boulevard, Suite 200 Bonita Springs, Florida 34134 Telephone (239) 690-7900 Facsimile (239) 738-7778 Primary e-mail: ron.campbell@csklegal.com Secondary e-mail: daniel.calvert@csklegal.com Alternate e-mail: juliette.heller@csklegal.com By s/ Daniel C. Calvert RON M. CAMPBELL Florida Bar No.: 827061 DANIEL C. CALVERT Florida Bar No.: 116544 Page 5 Cole, Scott & Kissane www.esklegal.com Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa Bonita Springs | Naples | Pensacda | Fort Myers | Tallahassee | Key West