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Filing # 146095455 E-Filed 03/21/2022 02:31:01 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 PRECLUDE PLAINTIFF FROM COMMENTING ON THE
FAILURE OF A WITNESS TO TESTIFY
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, move to preclude Plaintiff from
commenting on, or making adverse inferences regarding, the failure of a defense witness to testify.
In addition, Plaintiff should be precluded from referring directly or indirectly to the fact that a
defense witness may testify via videotaped deposition rather than live.
1
ARGUMENT
It is improper for a party to comment on the failure of a witness to testify unless that party
can show that certain criteria are met. See Lowder v. Economic Opportunity Family Health Center,
Inc., 680 So. 2d 1133 (Fla. 3d DCA 1996). The Third District in Lowder explained that a party
may comment on a failure to testify when it is shown that the witness is "peculiarly within the
party's power to produce and the testimony of the witness would elucidate the transaction," but
"the missing witness inference does not arise where the testimony of the missing witness would
be cumulative" or "where there has been sufficient explanation for such absence." Id. at 1135-36.
P Y
It is also improper for Plaintiff's counsel, in closing argument, to challenge Defendants' counsel
to explain the absence of a witness. See Biggins v. Mariner Boat Works, Inc., 545 So. 2d 430, 433
(Fla. 1989).
C O
In addition, Plaintiff must be precluded from commenting on the presentation of a defense
witness via videotaped deposition rather than live. See Muhammad v. Toys "R" Us, Inc., 668 So.
2d 254, 257 (Fla. 1st DCA 1996). Florida Standard Jury Instruction 301.1(a) (Civil Cases)
provides that the following explanation be read immediately before testimony is presented via
deposition:
Members of the jury, the sworn testimony of (name), given before trial, will now
be presented. You are to consider and weigh this testimony as you would any
other evidence in the case.
Fla. Std. Jury Instr. 301.1(a) (emphasis added). Thus, videotaped deposition testimony and live
testimony must be accorded the same weight, and Plaintiff must not be permitted to insinuate
otherwise. Moreover, whether certain of Defendants' witnesses testify via pre-recorded
videotaped deposition testimony is utterly irrelevant to the content or reliability of that testimony.
The fact that certain testimony is presented on videotape will not "tend to prove or disprove a
material fact" and therefore should not be the basis for any comment.
2
WHEREFORE Defendants request that the Court grant this motion to preclude Plaintiff
from commenting on or making impermissible inferences regarding the failure of a witness to
testify and from referring directly or indirectly to the fact that some of Defendants' witnesses will
be or were presented via videotape rather than through live testimony, and award such other and
further relief as it deems just.
CERTIFICATE OF SERVICE
571- WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this
0// --day of March, 2022, via the Florida Courts E-Portal/E-Mail upon the parties listed in the
attached Service List.
P Y
STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
O
Attorneys for Defendants Martin Memorial
Medical Center, Inc. and Martin Memorial
C
Physician Corporation, Inc.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
Telephone: (954) 462-9500
Facsimile: (954) 462-9567
B
OMAS G. AUBIN
FBN: 008060
taubin@stearnsweaver.com
MATTHEW S. PODOLNICK
FBN: 112126
mpodolnick@stearnsweaver.com
AMANDA L. SPENCER
FBN: 1010874
aspencer@steamsweaver.com
3
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
O
Phone: (954) 847-4800
Fax: (954) 760-9353
C
Attorneys for Michael Maltman, M.D.
4
#10290303 vl
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Filing # 146095455 E-Filed 03/21/2022 02:31:01 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 PRECLUDE PLAINTIFF FROM COMMENTING ON THE FAILURE OF A WITNESS TO TESTIFY 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, move to preclude Plaintiff from commenting on, or making adverse inferences regarding, the failure of a defense witness to testify. In addition, Plaintiff should be precluded from referring directly or indirectly to the fact that a defense witness may testify via videotaped deposition rather than live. 1 ARGUMENT It is improper for a party to comment on the failure of a witness to testify unless that party can show that certain criteria are met. See Lowder v. Economic Opportunity Family Health Center, Inc., 680 So. 2d 1133 (Fla. 3d DCA 1996). The Third District in Lowder explained that a party may comment on a failure to testify when it is shown that the witness is "peculiarly within the party's power to produce and the testimony of the witness would elucidate the transaction," but "the missing witness inference does not arise where the testimony of the missing witness would be cumulative" or "where there has been sufficient explanation for such absence." Id. at 1135-36. P Y It is also improper for Plaintiff's counsel, in closing argument, to challenge Defendants' counsel to explain the absence of a witness. See Biggins v. Mariner Boat Works, Inc., 545 So. 2d 430, 433 (Fla. 1989). C O In addition, Plaintiff must be precluded from commenting on the presentation of a defense witness via videotaped deposition rather than live. See Muhammad v. Toys "R" Us, Inc., 668 So. 2d 254, 257 (Fla. 1st DCA 1996). Florida Standard Jury Instruction 301.1(a) (Civil Cases) provides that the following explanation be read immediately before testimony is presented via deposition: Members of the jury, the sworn testimony of (name), given before trial, will now be presented. You are to consider and weigh this testimony as you would any other evidence in the case. Fla. Std. Jury Instr. 301.1(a) (emphasis added). Thus, videotaped deposition testimony and live testimony must be accorded the same weight, and Plaintiff must not be permitted to insinuate otherwise. Moreover, whether certain of Defendants' witnesses testify via pre-recorded videotaped deposition testimony is utterly irrelevant to the content or reliability of that testimony. The fact that certain testimony is presented on videotape will not "tend to prove or disprove a material fact" and therefore should not be the basis for any comment. 2 WHEREFORE Defendants request that the Court grant this motion to preclude Plaintiff from commenting on or making impermissible inferences regarding the failure of a witness to testify and from referring directly or indirectly to the fact that some of Defendants' witnesses will be or were presented via videotape rather than through live testimony, and award such other and further relief as it deems just. CERTIFICATE OF SERVICE 571- WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this 0// --day of March, 2022, via the Florida Courts E-Portal/E-Mail upon the parties listed in the attached Service List. P Y STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. O Attorneys for Defendants Martin Memorial Medical Center, Inc. and Martin Memorial C Physician Corporation, Inc. 200 East Las Olas Blvd., Suite 2100 Fort Lauderdale, FL 33301 Telephone: (954) 462-9500 Facsimile: (954) 462-9567 B OMAS G. AUBIN FBN: 008060 taubin@stearnsweaver.com MATTHEW S. PODOLNICK FBN: 112126 mpodolnick@stearnsweaver.com AMANDA L. SPENCER FBN: 1010874 aspencer@steamsweaver.com 3 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 O Phone: (954) 847-4800 Fax: (954) 760-9353 C Attorneys for Michael Maltman, M.D. 4 #10290303 vl