the holding in Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987)

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1 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT, IN AND FOR SARASOTA COUNTY, FLORIDA KLAUS A. ROESSLER, CASE NO CA-01 Plaintiff, vs. RUSSELL W. NOVAK, M.D., SARASOTA SURGICAL SPECIALISTS, P.A., a Florida corporation, RICHARD J. LICHTENSTEIN, M.D., SMH RADIOLOGY ASSOCIATES, P.A., a Florida corporation, SARASOTA COUNTY PUBLIC HOSPITAL BOARD, d/b/a SARASOTA MEMORIAL HOSPITAL, Defendants. / PLAINTIFF S MOTION IN LIMINE FOR JURY INSTRUCTION THAT AS A MATTER OF LAW IT IS PRESUMED THAT THE DEFENDANT NOVAK WAS NEGLIGENT DUE TO THE DEFENDANTS FAILURE TO PRODUCE EVIDENCE IN THEIR POSSESSION THAT WOULD SUPPORT THE PLAINTIFF S CLAIM AND MAKES THE PLAINTIFF S CASE MORE DIFFICULT TO PROVE Plaintiff, Klaus A. Roessler ( Plaintiff ), pursuant to Florida Statute section and the holding in Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987) responds to Defendant s Motion to Dismiss or Strike Count II of Plaintiff s Amended Complaint and moves for an order in limine establishing his entitlement to a jury instruction that the Defendant Novak is presumed to have provided negligent care to the Plaintiff and as grounds would show the Court: I. Relief Sought Plaintiff, as a result of the holding in Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005) and pursuant to the holding in Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987), seeks a ruling, in limine, that there is a presumption that the Defendant

2 Novak was negligent in the care and treatment of the Plaintiff. To obtain this presumption the Plaintiff must establish that to the Court s satisfaction that the absence of the x-rays sufficiently hinders Plaintiff s ability to proceed with his case against Dr. Novak such that the presumption is necessary to serve the purpose of justice. Id. at 599. II. Background This lawsuit arises from Defendants alleged medical malpractice. The Complaint alleges claims for medical negligence, Count I, and for spoliation of evidence, Count II. The claim for spoliation of evidence is predicated on the Defendants inability to produce evidence within their control, namely, x-rays that Plaintiff brought with him to the Defendant, Hospital. The facts giving rise to the claim for spoliation are that prior to seeing Dr. Novak at the Defendant Hospital, the Plaintiff was seen by doctor at a family clinic who ordered x-rays of his abdomen and chest. The doctor at the family clinic, after examining Plaintiff and reviewing the x-rays, diagnosed Plaintiff with a perforated intestinal organ (viscus), contacted Dr. Novak and sent Plaintiff, with the x-rays to see Dr. Novak at the Defendant Hospital s Emergency Department. The Plaintiff alleges that Dr. Novak, despite reviewing both x-rays or failing to review the x-ray of the abdomen, failed to diagnose the Plaintiff with a perforated viscus. Neither, it is alleged, did he take or order any tests to rule out a perforated viscus, when Plaintiff presented at the hospital. Plaintiff contends Dr. Novak failed to meet the standard of care by incorrectly interpreting the x-rays, by failing to order the proper tests to rule out a perforated viscus and failing to properly diagnose Plaintiff. The x-rays, therefore, if available, would be direct evidence of Dr. Novak s negligence and the absence of the x-rays sufficiently hinders Plaintiff s ability to proceed with his case against Dr. Novak -2-

3 Plaintiff s allegations in Count II set forth a first party claim for spoliation of evidence as recognized in Bondu v. Gurvich, 473 So 2d 1307 (Fla. 3d DCA 1984), rev. denied, 484 So.2d 7 (Fla. 1986); wherein the Third District Court of Appeal held that a first party claim for spoliation of evidence existed on behalf of a wife, whose husband died during surgery, and that she was entitled to bring an action for negligent failure to preserve evidence [spoliation of evidence] against a hospital and its physicians where the hospital misplaced records which were indispensable to the plaintiff's medical malpractice action. Recently, however, the Florida Supreme Court accepted review of Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003) based on the Fourth District s certification that it was in direct conflict with Bondu, supra, and rejected the holding in Bondu, holding there is no first party spoliation of evidence claim. Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). In Martino, The Supreme Court limited its consideration to the issue on which conflict was certified: whether an independent cause of action should exist for first-party spoliation of evidence. Id. at 346. After discussing the Third District s opinions in Bondu, supra, and Valcin, supra, the Supreme Court held: Id. at 347. Now that we consider whether the remedy against a first-party defendant for spoliation of evidence should be the Valcin presumption and sanctions, if found to be necessary, or an independent cause of action, we decide in favor of the Valcin presumption and sanctions. Martino has not demonstrated that there is any need to change our reliance on the Valcin presumption and instead recognize an independent cause of action for first-party spoliation of evidence. As a result there is no longer any first party claim for spoliation. However, Florida Courts are now required to inform the jury that there is a presumption of negligence where the absence of evidence, that was in the control of the other party, sufficiently hinders Plaintiff s -3-

4 ability to proceed. Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 599 (Fla. 1987) III. Motions in Limine The Florida Rule of Civil Procedure expressly authorize motions in limine. See, Fla. R. Civ. P (a)(6). The Latin phrase, in limine, literally means at the beginning. Hence, motions in limine are motions made at the very start of a trial to obtain rulings on the admissibility of evidence. Motions in limine can be used as either swords to admit evidence or shields to prohibit its admission. See, e.g., Iowa Nat. Ins. Co. v. Worthy, 447 So. 2d 998, 1000 (Fla. 5th DCA 1984); Bracey v. Reynolds, 414 So. 2d 1081, 1082 (Fla. 4th DCA 1982). Although Rule 1.200(a)(6) contemplates a written pretrial motion and a hearing on the motion, Florida courts do not absolutely require a written motion and notice when an oral motion is akin to an evidentiary objection at trial. Dailey v. Multicon Development, Inc., 417 So. 2d 1106, 1107 (Fla. 4th DCA 1982). IV. Plaintiff is Entitled to a Presumption of Negligence The Florida Supreme Court s opinion in Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987) and Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005) compel a presumption of negligence against Dr. Novak and in favor of the Plaintiff. The issue in Valcin v. Public Health Trust, 473 So.2d 1297 (Fla. 3d DCA 1984), just as Bondu v. Gurvich, 473 So.2d 1307 (Fla. 3d DCA 1984), involved missing medical records which impacted a plaintiff s ability to prove a medical malpractice case. In Valcin, due to the relief requested, the District Court did not address whether a cause of action for spoliation existed but rather, adopted a scheme of evidentiary presumptions to be utilized where the absence of medical -4-

5 records, specifically surgical operative notes, impaired the plaintiff's ability to establish his case for malpractice. The Florida Supreme Court did not review Bondu, but the Court did review Valcin, at 507 So. 2d 586 (Fla. 1987). In Valcin, the Supreme Court adopted the Third District s opinion to the extent that it established a rebuttable presumption of negligence when the plaintiff establishes, to the satisfaction of the court, that the absence of the records hinders his ability to establish a prima facie case. Id. at 599. The holding in Valcin is directly applicable to the instant matter. In Valcin, the Court held that the failure of the Defendants to produce an operative report would result in a presumption of negligence in order to equalize the parties' respective positions in regard to the evidence and to allow the plaintiff to proceed. Id. at 600. While the missing operative report did not mean there was malpractice by the surgeon, its absence did impair the Plaintiff s ability to produce expert testimony on the conduct of the operation. Id. Likewise, in the instant matter, the missing x-rays do not mean there was malpractice by Dr. Novak; however their absence precludes the Plaintiff from introducing testimony by an expert that the x-rays demonstrates Dr. Novak s malpractice. Accordingly, as a matter of policy, the only way to resolve the missing evidence and equalize the parties position is a presumption of negligence by Dr. Novak that under section (2) shifts the burden of proof, ensuring that the issue of negligence goes to the jury. Id. at 600. As the Supreme Court explained: Although we approve the district court's adoption of the rebuttable presumption, applicable when essential medical records are unavailable due to the adverse parties' negligence, we must clarify its application in certain respects. We first stress the limited function of the presumption. The absence of a surgical note will not necessarily bear on the issues in a malpractice action based solely on, for example, failure to obtain an informed consent or failure to properly diagnose an illness. It should apply only when -5-

6 necessary to serve the purposes of justice. In other words, a plaintiff must first establish to the satisfaction of the court that the absence of the records hinders his ability to establish a prima facie case. In Patrick v. Sedwick, 391 P.2d 453, 457 (Alaska 1964), for example, the Alaska Supreme Court noted that "it was incumbent upon the appellee surgeon to have described accurately and fully in his report of the operation everything of consequence that he did and which his trained eye observed during the operation... if these requirements had been met the report would... more likely... have supplied sufficient facts to have permitted expert witnesses to testify on the question of negligence." 507 So. 2d 596 at 599. CASE NO NC The jury must be informed of the presumption of negligence because as the Supreme Court stated in Valcin, A vanishing presumption will not assist a plaintiff in proving his case. If the plaintiff is in fact sufficiently "hindered" by the absence of an operative note, odds are that the defendant's production of some evidence of non-negligence will not place the plaintiff in a better position. Testimony based on the selective recollections of the surgeon and his staff would be considered "substantial" enough to "burst the bubble," thus keeping the presumption from the jury. See Gulle v. Boggs, 174 So.2d 26 (Fla. 1965); see also Baughman v. Vann, 390 So.2d 750 (Fla. 5th DCA 1980); Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977). Plaintiff could rarely prove negligence by a preponderance of the evidence when the presumption has given him nothing more than the self-serving testimony of the defendant. Accordingly, the presumption remains unless the trier of fact, the jury, determines there is sufficient evidence to overcome it. Id at 600. See also Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla 4 th DCA 2001), which reversed the trial court s directed verdict and confirmed that a jury instruction on the presumption should be given during the retrial. V. Conclusion In the instant matter, the missing x-rays do not necessarily mean Dr. Novak committed malpractice, anymore than the missing operative report meant that the surgeon in Valcin -6-

7 committed malpractice. However, in both cases their absences impaired and here impairs the ability of the Plaintiffs to present their claims for malpractice. Accordingly, this Plaintiff, just as the plaintiff in Valcin, is legally entitled to a jury instruction that the negligence of Dr. Novak is presumed. CERTIFICATE OF SERVICE WE DO HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by mail this day of January, 2006 to: CHARLES C. PAPY, III, ESQUIRE, Duane Morris & Heckscher, LLP, 200 S. Biscayne Blvd., Suite 3400, Miami, FL 33131; G. HUNTER GIBBONS, ESQUIRE, Dickinson & Gibbons, P.A., 1750 Ringling Blvd., Sarasota, FL 34236; LYNN GROSECLOSE, ESQUIRE, Thompson, Goodis, Thompson, et al., 1201 Sixth Avenue West, #326, Bradenton, FL 34205; KENNETH C. DEACON, JR., ESQUIRE, Deacon & Moulds, P.A., 100 Second Avenue South, #902S, St. Petersburg, FL and RUSSELL S. BUHITE, ESQUIRE, Fowler, White, et al., Post Office Box 1438, Tampa, FL ROMANO, ERIKSEN & CRONIN Post Office Box West Palm Beach, FL Tel: (561) FAX: (561) Attorneys for Plaintiff By: JOEL S. CRONIN Florida Bar No MIA\

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