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Filing # 146113713 E-Filed 03/21/2022 04:14:12 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,
deceased,
Plaintiff,
CASE NO.: 2021-CA-000610
vs.
LEONEL LOPEZ, D.O.; PARAGON
CONTRACTING SERVICES, LLC; MICHAEL
Y
MALTMAN, M.D., TREASURE COAST TOPDOC,
PLLC; MARTIN MEMORIAL MEDICAL CENTER,
INC., d/b/a CLEVELAND CLINIC TRADITION
O
HOSPITAL; and MARTIN MEMORIAL PHYSICIAN
CORPORATION, INC., d/b/a MARTIN HEALTH P
PHYSICIAN GROUP,
Defendants. C
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 LIMIT AND EXCLUDE THE AUTOPSY PHOTOGRAPHS
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 the undersigned counsel, file this Motion in Limine to Limit and
Exclude the Autopsy Photographs and state the following:
1. This is a wrongful death action wherein Plaintiff alleges that Defendants, by and
through the actions of their alleged agents, negligently provided care and treatment to Margaret
Carlton, resulting in her death.
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2. Following Margaret Carlton's death, an autopsy was performed by Dr. Eroston
Price. As part of the autopsy, Dr. Price took a number of photographs.
3. Dr. Price was deposed in this matter and questioned regarding which photographs
served as the basis for her opinions. She identified the following photographs: IMG_1364,
IMG_1377, IMG_1389, IMG_1387, IMG_1390 through IMG 1401, IMG_1472, IMG_1483,
IMG 1486, IMG_1488, and IMG_1499.
4. Any photographs that do not serve as the basis for Dr. Price's opinions should be
excluded as they are irrelevant, inflammatory, prejudicial, and needlessly cumulative.
ARGUMENT
P Y
The initial test for determining the admissibility of photographic evidence is relevance.
C O
Mansfield v. State, 758 So. 2d 636 (Fla. 2000); see also Ault v. State, 53 So. 3d 175 (Fla. 2011);
Fla. Stat. §§ 90.401, 90.402. "[R]elevancy is founded on materiality, the nexus between a fact
being proved and a disputed issue, and probativeness, the effect this evidence would have on the
existence of that fact." Barrett v. State, 605 So. 2d 560, 561 (Fla. 4th DCA 1992). "For evidence
to be relevant, it must have a logical tendency to prove or disprove a fact which is of consequence
to the outcome of the action." Shaw v. Jain, 914 So. 2d 458, 460 (Fla. 1st DCA 2005) (emphasis
added).
Specifically, as it pertains to autopsy photographs, they are admissible where they are
relevant and assist the medical examiner in explaining an issue in dispute to the jury, such as the
cause of death. See Bush v. State, 461 So.2d 936 (Fla. 1984); Jackson v. State, 213 So.3d 754 (Fla.
2017). The decision to exclude autopsy photographs is within the trial court's discretion and will
only be reversed upon a showing of abuse of discretion. Bogle v. State, 213 So. 3d 833 (Fla. 2017).
2
The photographs relied upon by Dr. Price in rendering her opinions are certainly
admissible. However, the remaining photographs are not relevant to any issue in dispute.
Therefore, this Court should exclude them at trial.
Additionally, assuming, arguendo, this Court were to find all of the autopsy photographs
relevant, which they are not, this Court should still exclude the photographs not relied upon by Dr.
Price under Florida Statute § 90.403: "Relevant evidence is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the
jury, or needless presentation of cumulative evidence." Further, the First District Court of Appeal
P Y
has previously noted that the trial court should only permit evidence of autopsy photographs where
the shocking nature of the photographs does not outweigh their relevance. Steiger v. State, 301
C O
So.3d 485 (Fla. 1st DCA 2020). Fla. Stat. § 90.403.
In Hoffert v. State, 559 So. 2d 1246 (Fla. 4th DCA 1990), the defendant was tried for second
degree murder. The Defendant was convicted and on appeal to the Fourth District, argued that the
trial court erred in permitting the introduction of an autopsy photograph of the victim's head. Id
at 1248. The photograph depicted the internal portion of the victim's head from behind the ears to
the top of the head with the scalp rolled away revealing the flesh which underlies the hair and
overlies the skull. Id. The state argued the photograph was relevant to show that the victim had
suffered a separate blow to the left side of his head and received the worst of the fight. Id. The
Fourth District held the introduction of the photograph was error and reversed and remanded for a
new trial stating the following:
The record contains other evidence which shows that the victim had broken fingers,
bruises above the noes and lacerations on the back of the head. The medical
examiner could have testified that the victim had a bruise on the left side of his head
and a hemorrhage to the temporalise muscle without reference to the photograph.
The danger of unfair prejudice to appellant far outweighed the probative
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value of the photograph and the state has failed to show the necessity for its
admission. On retrial, the photograph should be excluded.
Id. (emphasis added).
Any probative value of the autopsy photographs not relied upon by Dr. Price is
substantially outweighed by the danger of unfair prejudice. Plaintiff has no need for those
photographs admissions. As in Hoffert, Dr. Price can testify about the autopsy findings without
reference to those cumulative and unfairly prejudicial photographs. Therefore, this Court should
exclude the autopsy photographs not relied upon by Dr. Price from entry into evidence.
WHEREFORE Defendants respectfully request this Court to preclude Plaintiff from
P Y
introducing the autopsy photographs not relied upon by Dr. Price into evidence and any other relief
this Court deems just and proper.
C O
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CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this
J/ ‘-'-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
Y
Facsimile: (954) 462-9567
O
By:
P
THOMAS G. AUBIN
C
FBN: 008060
taubin@stearnsweaver.com
MATTHEW S. PODOLNICK
FBN: 112126
mpodolnick@stearnsweaver.com
AMANDA L. SPENCER
FBN: 1010874
aspencer@stearnsweaver.com
5
SERVICE LIST
Bonnie Navin, Esq. James White, Esq.
Michael Petruccelli, Esq. White & Russell, P.A.
Rubenstein Law, P.A. 11641 Kew Gardens Ave., Suite 101
9130 S. Dadeland Blvd., PH Palm Beach Gardens, FL 33410
Miami, FL 33156
Tel.: 561-684-6600
Tel.: 305-661-6000
Attorneys for Plaintiff Fax: 561-622-6288
Attorneys for Paragon Contracting Services,
LLC and Leonel Lopez, D.O.
Jessica Kaplan, Esquire
Y
Wicker Smith O'Hara McCoy & Ford, P.A.
515 E. Las Olas Blvd.
P
Suntrust Center, Suite 1400
Fort Lauderdale, FL 33301
Phone: (954) 847-4800
Fax: (954) 760-9353
C O
Attorneys for Michael Maltman, M.D.
6
Preview
Filing # 146113713 E-Filed 03/21/2022 04:14:12 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, deceased, Plaintiff, CASE NO.: 2021-CA-000610 vs. LEONEL LOPEZ, D.O.; PARAGON CONTRACTING SERVICES, LLC; MICHAEL Y MALTMAN, M.D., TREASURE COAST TOPDOC, PLLC; MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a CLEVELAND CLINIC TRADITION O HOSPITAL; and MARTIN MEMORIAL PHYSICIAN CORPORATION, INC., d/b/a MARTIN HEALTH P PHYSICIAN GROUP, Defendants. C 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 LIMIT AND EXCLUDE THE AUTOPSY PHOTOGRAPHS 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 the undersigned counsel, file this Motion in Limine to Limit and Exclude the Autopsy Photographs and state the following: 1. This is a wrongful death action wherein Plaintiff alleges that Defendants, by and through the actions of their alleged agents, negligently provided care and treatment to Margaret Carlton, resulting in her death. 1 2. Following Margaret Carlton's death, an autopsy was performed by Dr. Eroston Price. As part of the autopsy, Dr. Price took a number of photographs. 3. Dr. Price was deposed in this matter and questioned regarding which photographs served as the basis for her opinions. She identified the following photographs: IMG_1364, IMG_1377, IMG_1389, IMG_1387, IMG_1390 through IMG 1401, IMG_1472, IMG_1483, IMG 1486, IMG_1488, and IMG_1499. 4. Any photographs that do not serve as the basis for Dr. Price's opinions should be excluded as they are irrelevant, inflammatory, prejudicial, and needlessly cumulative. ARGUMENT P Y The initial test for determining the admissibility of photographic evidence is relevance. C O Mansfield v. State, 758 So. 2d 636 (Fla. 2000); see also Ault v. State, 53 So. 3d 175 (Fla. 2011); Fla. Stat. §§ 90.401, 90.402. "[R]elevancy is founded on materiality, the nexus between a fact being proved and a disputed issue, and probativeness, the effect this evidence would have on the existence of that fact." Barrett v. State, 605 So. 2d 560, 561 (Fla. 4th DCA 1992). "For evidence to be relevant, it must have a logical tendency to prove or disprove a fact which is of consequence to the outcome of the action." Shaw v. Jain, 914 So. 2d 458, 460 (Fla. 1st DCA 2005) (emphasis added). Specifically, as it pertains to autopsy photographs, they are admissible where they are relevant and assist the medical examiner in explaining an issue in dispute to the jury, such as the cause of death. See Bush v. State, 461 So.2d 936 (Fla. 1984); Jackson v. State, 213 So.3d 754 (Fla. 2017). The decision to exclude autopsy photographs is within the trial court's discretion and will only be reversed upon a showing of abuse of discretion. Bogle v. State, 213 So. 3d 833 (Fla. 2017). 2 The photographs relied upon by Dr. Price in rendering her opinions are certainly admissible. However, the remaining photographs are not relevant to any issue in dispute. Therefore, this Court should exclude them at trial. Additionally, assuming, arguendo, this Court were to find all of the autopsy photographs relevant, which they are not, this Court should still exclude the photographs not relied upon by Dr. Price under Florida Statute § 90.403: "Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." Further, the First District Court of Appeal P Y has previously noted that the trial court should only permit evidence of autopsy photographs where the shocking nature of the photographs does not outweigh their relevance. Steiger v. State, 301 C O So.3d 485 (Fla. 1st DCA 2020). Fla. Stat. § 90.403. In Hoffert v. State, 559 So. 2d 1246 (Fla. 4th DCA 1990), the defendant was tried for second degree murder. The Defendant was convicted and on appeal to the Fourth District, argued that the trial court erred in permitting the introduction of an autopsy photograph of the victim's head. Id at 1248. The photograph depicted the internal portion of the victim's head from behind the ears to the top of the head with the scalp rolled away revealing the flesh which underlies the hair and overlies the skull. Id. The state argued the photograph was relevant to show that the victim had suffered a separate blow to the left side of his head and received the worst of the fight. Id. The Fourth District held the introduction of the photograph was error and reversed and remanded for a new trial stating the following: The record contains other evidence which shows that the victim had broken fingers, bruises above the noes and lacerations on the back of the head. The medical examiner could have testified that the victim had a bruise on the left side of his head and a hemorrhage to the temporalise muscle without reference to the photograph. The danger of unfair prejudice to appellant far outweighed the probative 3 value of the photograph and the state has failed to show the necessity for its admission. On retrial, the photograph should be excluded. Id. (emphasis added). Any probative value of the autopsy photographs not relied upon by Dr. Price is substantially outweighed by the danger of unfair prejudice. Plaintiff has no need for those photographs admissions. As in Hoffert, Dr. Price can testify about the autopsy findings without reference to those cumulative and unfairly prejudicial photographs. Therefore, this Court should exclude the autopsy photographs not relied upon by Dr. Price from entry into evidence. WHEREFORE Defendants respectfully request this Court to preclude Plaintiff from P Y introducing the autopsy photographs not relied upon by Dr. Price into evidence and any other relief this Court deems just and proper. C O 4 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this J/ ‘-'-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 Y Facsimile: (954) 462-9567 O By: P THOMAS G. AUBIN C FBN: 008060 taubin@stearnsweaver.com MATTHEW S. PODOLNICK FBN: 112126 mpodolnick@stearnsweaver.com AMANDA L. SPENCER FBN: 1010874 aspencer@stearnsweaver.com 5 SERVICE LIST Bonnie Navin, Esq. James White, Esq. Michael Petruccelli, Esq. White & Russell, P.A. Rubenstein Law, P.A. 11641 Kew Gardens Ave., Suite 101 9130 S. Dadeland Blvd., PH Palm Beach Gardens, FL 33410 Miami, FL 33156 Tel.: 561-684-6600 Tel.: 305-661-6000 Attorneys for Plaintiff Fax: 561-622-6288 Attorneys for Paragon Contracting Services, LLC and Leonel Lopez, D.O. Jessica Kaplan, Esquire Y Wicker Smith O'Hara McCoy & Ford, P.A. 515 E. Las Olas Blvd. P Suntrust Center, Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 847-4800 Fax: (954) 760-9353 C O Attorneys for Michael Maltman, M.D. 6