1

2 BAILIFF: All rise.

3 THE COURT: We're here on the matter of

4 versus Stores.

5 Let me have appearances. Counsel,

6 Ms. Suiter, if you would just wait until the end.

7 MR. LAGE: Good afternoon Gus Lage and

8 Percy Martinez on the behalf of the Plaintiff,

9 .

10 MR. BUCHHOLZ: Good morning -- or good

11 afternoon, Your Honor. John Buchholz and Carol

12 Fennello, from the law offices of Clinton Flagg,

13 on behalf of .

14 MS. ELLIS: Nicole Ellis, on behalf of IS

15 Facility Services.

16 MS. SUITER: And attorney, Suzanne Suiter

17 on behalf of Inter-continental.

18 THE COURT: Okay. Very good.

19 If you all will hold on just one moment. I

20 will pull up my notes in this case.

21 Okay. I can't find it. Let's proceed.

22 MR. BUCHHOLZ: Good afternoon, Your Honor.

23 First motion in limine we'd like to argue is,

24 the Defendant's motion in limine regarding

25 exclusion of testimony, regarding malingering.

1

add ,

verified via firm website and used throughout the transcript with only one NFenello

cap no ,

one word

no ,

1 Do you have a copy of my memorandum of law?

2 THE COURT: I do.

3 MR. BUCHHOLZ: Your Honor, this is a slip

4 and fall accident, and during the course of the

5 discovery, the deposition of an orthopedic

6 physician was taken. It was the CME of

7 Dr. and Dr. (phonetic),

8 Dr. who saw the Plaintiff. Both of them

9 are board certified orthopedist. And during the

10 depositions of each of the physicians, Gus Lage,

11 the Plaintiffs attorney asked whether they had the

12 information as to whether the Plaintiff was

13 malingering. And on Page 8 of Exhibit A of my

14 exhibit to the motion, on Page 83 of the

15 deposition, this is Dr. .

16 Do you know what a malingerer is?

17 Yes.

18 What is a malingerer?

19 A malingerer is someone who does not really

20 have the real specific medical pathology or

21 problems and are constantly complaining of things

22 and different issues, more or less.

23 Question: Do you have an indication,

24 whatsoever, that Ms. is a malingerer when

25 she presented to you.

2

hyphenate

pluralhyphenate

Plaintiff's

Reminder: "Page" is one of the few words that do not get capped as a sequential reference, but a reporter may choose to cap it as a preference.

any?

add ?

1 And the answer is no.

2 Later on he's asked about invasive

3 procedures, and at the bottom of Page 84 of the

4 deposition, which you have is Exhibit A.

5 He states yes, I would. I'm not a

6 psychologist, obviously. Most of the time

7 malingerers, a large part don't go through a

8 scheme of procedures.

9 And then attached is Exhibit B. It is the

10 portions of the deposition of Dr.

11 , the CME physician.

12 On Page 36 of the deposition, Mr. Lage asked

13 Dr. during either of those two meetings

14 did you make any notations that you believe

15 Ms. was malingering, as it relates to her

16 treatment?

17 No. Not at all. I don't think she was

18 malingering.

19 And then he went on to the definition of

20 malingering.

21 In this particularly case, Your Honor, there

22 has been no evidence presented, and it's not my

23 intention to argue that Ms. was

24 malingering. It is, of course, our intention to

25 say that these injuries were not causally related

3

particular

1 to the accident itself.

2 As you may recall from an earlier motion, s he

3 had a boating accident. She injured the same

4 knee. She had a slip and fall or trip and fall

5 after our accident. And turning over to, you

6 know, back to my memorandum of law, at the botto m

7 of Page 2, it talks about bolstering. Moreover,

8 it is an improper attempt to bolster a plaintiff 's

9 credibility.

10 A party may not introduce evidence to bolst er

11 a witness's credibility before it has been

12 attacked. And their citing Gus versus Garcia, 8 0

13 Southern Third, 358, 365, First DCA.

14 And under Rule 90.702, which is on Page 3,

15 Your Honor, it talks about what an expert -- how

16 does an expert's testimony -- and what the

17 criteria has to be met. And the testimony is

18 based on sufficient facts or data.

19 Number two, the testimony is a product of

20 reliable principle and the method.

21 And three, the witnesses applied these

22 principles and methods reliable to the facts in

23 the case. And there's actually insufficient

24 evidence that any of the doctors are qualified t o

25 offer opinions.

4

Morson's 151, Gregg 804a, BGGP Hyphen.20 -- Hyphenate a compound noun that lacks a noun as one of its elements.

hyphenate hyphenate

GLOBALGLOBAL

Note: "A plaintiff" is more than likely referring to a plaintiff in general; if it was "the Plaintiff," it would be more likely that it's referring to a Plaintiff in the case that's being discussed.

they're

1 Typically what happens is, if there's an

2 issue malingering, I would send her to a

3 psychologist, a neuro-psychologist, and they would

4 perform a battery of tests. That's not the case.

5 here.

6 The only time the word malingering has been

7 brought up in any of the depositions is, when

8 presented by Mr. Lage, during his cross

9 examination of the witnesses.

10 So, it's our position since we are not

11 calling her a malingerer. We're not saying she's

12 faking, along those lines that this line of

13 questioning is improper.

14 And so, I'm asking that the Court grant my

15 motion in limine that prohibits any witnesses from

16 testifying on the issue as to whether she was

17 malingering or not malingering. And as you can

18 see, I cited several cases in my memorandum of

19 law.

20 MR. LAGE: Your Honor, the -- just because

21 they haven't out and out called her a malingerer,

22 doesn't mean that they haven't implied on numerous

23 occasions that the client is malingering. They

24 sought to introduce testimony through ,

25 saying he could find no reason why she would a

5

of?

one word

no .

add -

all one sentence

Note: MW Unabridged Online does show "out and out" hyphenated as an adverb, but the free version of MW and the iPad dictionary says it's hyphenated as an adjective with no mention of as an adverb, so it's probably more commonly hyphenated only as an adjective.

1 knee replacement. That her complaints of pain h as

2 no basis, in fact. It has no basis whatsoever.

3 That's a nice way of calling her a malingerer.

4 THE COURT: I don't think so.

5 MR. LAGE: Well --

6 THE COURT: It might be something else.

7 She may be trying to -- well, they can say she's

8 trying to run up her damages, perhaps. That's n ot

9 malingering.

10 MR. LAGE: Well, the definition of

11 malingering is the diagnosis that she's frequent ly

12 avoided by physician. There's a claim of sympto ms

13 or disease that are either exaggerated or do not

14 exist. The diagnosis of malingering should be

15 entertained. Malingering is associated with the

16 conscious intent to deceive, in order to obtain a

17 known gain, much like in these types of

18 situations.

19 THE COURT: Okay.

20 MR. LAGE: So, they are trying to say in a

21 very nice way, she's a malingerer, because there 's

22 no reason for her to need a knee replacement.

23 There's no reason to have pain associated

24 with this, and if they are going to raise those

25 issues, I should be allowed to rebut.

6

1 from the slip and fall. That's a big difference .

2 So, the fact is, Judge, none of these docto rs

3 did any tests to determine whether she was

4 malingering, because we have not asked him to do

5 that.

6 THE COURT: Okay. What I'm going to do is

7 reserve for the time of trial.

8 If you are going to question her treating

9 physician or even your experts to say that she

10 didn't need this knee replacement, then that fal ls

11 within their definition of malingering, which I

12 assume is the legal definition. It's not what I

13 think malingering means in the ordinary course. I

14 think malingering is somebody who consciously

15 pretends that they are.

16 MR. LAGE: More like bunch housing.

17 THE COURT: Well, no -- well, it is sort of

18 bunch housing. Anyway.

19 If there's questions that are asked, for

20 which is appropriate to cross examine, in that

21 regard, I will allow it at that time. If not, I

22 won't allow it. A lot depends upon what the

23 questions are.

24 So, I'm going to reserve until the time of

25 trial.

8

Munchausen

GLOBAL

it? add -

1 MR. BUCHHOLZ: All right.

2 Judge, so I can draft an order, because I had

3 brought a motion --

4 THE COURT: Just say reserved until trial.

5 MR. BUCHHOLZ: Okay.

6 THE COURT: Next?

7 MS. FENELLO: Your Honor, we have two

8 motions that relate to the testimony of

9 Dr. , and he was the physician who

10 repaired a femur fracture that the Plaintiff

11 sustained at home, two and a half years after her

12 slip and fall at .

13 So, she fell at in August of 2009.

14 In May of 2011, almost two years later, she

15 had knee replacement surgery, and then seven

16 months after that surgery, she slip and fell at

17 home in December of 2011. She was not a patient

18 of Dr. . He came to that repair, because

19 it was called in because of the accident. And the

20 issue before your -- before you today is, first of

21 all, a reconsideration of an oral ruling made in

22 that hearing of September, 2014. And the pending

23 ruling that we await, which generated that verbal

24 ruling, which was our motion in limine that

25 Dr. be precluded from testifying. That

9

no ,

no . uncap

1 her knee replacement caused her to fall at home,

2 in December of 2011. And at the September 26th

3 hearing, you reserved ruling on that issue and t o

4 testify to the actual cause. But you did say

5 verbally that you would permit him to testify,

6 quote, "I will allow him to testify that people

7 who have knee replacements, that it's not uncomm on

8 to have fractures right in this area,

9 mechanically."

10 Referring to that area of the femur, which

11 was fractured when she fell in December, '11.

12 So, since these are intertwined, I just

13 wanted to say that we reiterate our argument tha t

14 he can't testify as to whether the fall caused - -

15 whether the knee replacement caused the fall in

16 December of 2011, unless the fracture, because

17 unequivocally stated, he not know one way or the

18 other whether it was a slip, a trip or something

19 about the knee that caused her to fall.

20 And he was asked for the record, you don't

21 have an opinion -- you don't have an opinion

22 within a reasonable degree of medical certainly

23 whether the fracture of the femur was as a resul t

24 of the slip and fall, trip and fall, or the knee

25 replacement. You can't say one way or the other ,

10

no ,

add ,

1 correct?

2 Answer: Correct. The --

3 THE COURT: I would assume as an expert, he

4 would testify consistent with his deposition.

5 MR. FENELLO: I think the analysis should

6 stop there. We can't force him to make an opini on

7 that he's unwilling to make an opinion. And to

8 have him come in and say I think the knee

9 replacement caused her to fall, it does not meet

10 criteria for a scientific opinion, which of

11 course, for physicians differential diagnosis, y ou

12 eliminate other possibilities from -- in

13 determining the actual cause. So --

14 THE COURT: Why do you think he's going to

15 testify differently from his testimony?

16 MS. FENELLO: I guess we just want to

17 button up the point, Your Honor. At this -- we

18 asked you to look at his deposition, which we

19 provided to the Court, because initially it had

20 sounded in his deposition, oh, I think it's

21 related. And then as the deposition progressed i t

22 turns out he did not know about prior injuries o r

23 other matters. He had never seen her before and

24 he acknowledged that given those other possible

25 causes, he could not give that opinion.

11

MS.

spacing add ,

1 So, this is to prevent the issue from being

2 raised inadvertently and we think your order --

3 THE COURT: Inadvertently?

4 MS. FENELLO: Did I say inadvertently?

5 We ask that Your Honor rule in that regard,

6 that he can't say that.

7 Now, the other thing that you did rule at th e

8 hearing was, whether that he could say that peop le

9 who have knee replacements, that it's not uncomm on

10 for them to have fractures right in this area,

11 mechanically, referring to the femur.

12 We asked you to reconsider that based on th e

13 testimony. If you look into what he actually

14 said, he said that kind of femur fracture can

15 occur if the knee is stiff. He says that at Pag e

16 24. But he goes on to acknowledge it in 24 and 25

17 of the testimony. There's nothing in the record

18 that says that her knee was stiff.

19 So, all he can say is that he believed that

20 she had a reduced range of motion at the time th at

21 he saw her.

22 So, we would have to hear that testimony,

23 that all of a sudden now he can talk about femur

24 fractures and people with stiff knee replacement s,

25 is to allow the jury to pile on some inferences

12

no ,

keep together

1 about what could have that. And there's no

2 support in the record, and it's highly prejudici al

3 allowing them to speculate as to what a possible

4 cause was.

5 THE COURT: Aren't you speculating as to

6 what the possible questions are?

7 Aren't you asking me to speculate in advanc e,

8 when I have not heard the questions?

9 MS. FENELLO: His testimony is going to be

10 elicited first by the Plaintiff, and because of

11 the deposition we have a good idea. That's why

12 I'm jumping in limine ahead of time to ask Your

13 Honor to preclude that line of inquiry.

14 The -- he -- I had an X-ray of the femur th at

15 shows what he called a spiral fracture pattern,

16 but when he asked point blank if that's the kind

17 of fracture pattern that you see with people wit h

18 knee replacements, he answered at Page 59, I don 't

19 know.

20 So, without some more support in the report ,

21 we are asking Your Honor to exclude his testimon y,

22 first of all, that this falls to -- that the kne e

23 replacement caused this fall two and a half year s

24 after our accident, and also to preclude him fro m

25 testifying under the considerations of --

13

add -was?

1 THE COURT: I assume you asked the

2 questions, and he said I don't know, right?

3 MS. FENELLO: Yes.

4 THE COURT: Well, I assume that's what he's

5 going to say when he comes to trial. If not, we

6 have remedies, including, you know, there's cros s

7 examination. And there's all kinds of things.

8 MR. BUCHHOLZ: Your Honor, I believe he's

9 going to testify by deposition. I don't know if

10 he is coming in person. If he comes in person i t

11 would be a different issue. But if, in fact, he

12 testifies, or they read the deposition, that

13 question is out there that he thought initially it

14 was related. Then as he got more information,

15 then in the end of his deposition he said I can' t

16 say. And, so, we want a definitive order saying

17 he can't testify to that issue. And we know the

18 question. It's not speculation at all. I know

19 what Mr. Lage asked him, and I know what I asked

20 him. So, it's not speculation. It's what the

21 question and answer is. It's to limit what he

22 said, initially, because later on, if you follow

23 the progression of what he said, I can't say one

24 way or another if it's related.

25 so, that's really the end of the story. If

14

add -

spacing

1 he can't say that, we should enter an order.

2 THE COURT: Since when do we have two

3 lawyers arguing?

4 MR. BUCHHOLZ: My fault, Your Honor.

5 MR. LAGE: I'll cut to the chase. I am

6 going to call him live. He's one of the main

7 witnesses in this case.

8 But putting that aside, there were a bunch of

9 theoretical questions about what he knew or what

10 he might of known or didn't know by the Defense

11 counsel.

12 He's -- look, based on the presentation, the

13 information that was given to me, at the time, I

14 find that it's consistent with the knee locking,

15 because of the hardware in place. And what leads

16 me to that conclusion is, the numerous surgeries

17 that I have performed, the training that I have

18 received. And he's a very accomplished surgery.

19 He works with Dr. (phonetic), at Doctor's

20 Hospital. He's done training. He has also

21 done -- I believe he has been involved in

22 testing. And what ultimately he says is, based on

23 where the fracture is, that's not something that

24 we find that is consistent with a trip and fall.

25 It's more consistent, and we believe within a

15

might've

spacing

no ,

Doctors

1 reasonable degree of medical certainty, it's

2 related to the locking and stiff knee. And you

3 can get locking and a stiff knee. That's the

4 testimony that's going to be elicited. That's t he

5 testimony that, Your Honor found that he could

6 give the last time around. You said that you we re

7 reserving on the part relating to the fall aspec t

8 of it. But Your Honor didn't reserve at all as

9 relates to him being able to testify that based on

10 where the fracture occurred, being in such close

11 proximity to the hardware, that within a

12 reasonable degree of medical probability he

13 believed it to be related to the hardware, itsel f

14 MS. FENELLO: Briefly that characterization

15 of the doctor's testimony is not accurate and go es

16 far beyond the scope of what he did say in the

17 deposition.

18 So, that raises a whole hoist of other

19 questions and suggest that we were correct to be

20 concerned about what he might say outside of the

21 scope of his deposition.

22 THE COURT: Well, I will reserve until I

23 hear what he has to say.

24 MR. BUCHHOLZ: May I ask a question?

25 THE COURT: Yes.

16

no ,

period

add ,

host

suggests

1 MR. BUCHHOLZ: If we find out he's not

2 going to testify in person, because he's

3 unavailable.

4 THE COURT: I believe my trial order

5 requires you to go over any deposition.

6 MR. BUCHHOLZ: Page, line designation.

7 MR. LAGE: Sure.

8 THE COURT: You can raise any objections at

9 that point in time and I will deal with it.

10 MR. LAGE: Okay. That's how I'm accustomed

11 to doing it.

12 MS. FENELLO: Logistics -- I guess we would

13 have two on the original motion that was deferred

14 to simply say the Court is reserving ruling until

15 the trial. And as to the motion for

16 reconsideration, reserve ruling until trial?

17 THE COURT: Yes.

18 MS. FENELLO: Thank you.

19 THE COURT: Next?

20 Anything else?

21 MR. LAGE: I noticed you may not be to keem

22 on our motion for reconsideration. We filed or

23 own motion for reconsideration, as it relates to

24 Dr. . We previously provided a courtesy

25 copy to the Court, in reaction to Dr. 's

17

spacing

to?

too keen

our

1 testimony, and the issue that was raised. And

2 Your Honor previously ruled on -- is whether or

3 not Ms. will need future medical

4 treatment, and particularly a knee replacement.

5 And Your Honor ruled saying, that well, you know,

6 it's -- there's never a guarantee. He said

7 there's no guarantee as to what she would need.

8 He testified based on the training and experience

9 and doing numerous knee replacements on a monthly

10 basis. That's almost primarily what he does

11 within the orthopedics practice.

12 And the question by Mr. Buchholz are set

13 forth in my motion for reconsideration. And the

14 issue, Your Honor is, whether Dr. 's

15 testimony would be inappropriate. And we're

16 citing Advid versus Ryder Truck Rental. And we

17 also cited to Dr. 's deposition, and he

18 explained:

19 Given Ms. 's age, would you

20 anticipate that she would you need to redo her

21 hardware at any point in time?

22 It's more likely in a 53-year old than a 63

23 or 73-year old, in a patient, and more likely that

24 was within a reasonable degree of medical

25 certainly, given Ms. 's age you would need

18

Honor, is whether

add -add -

add -

1 to replace her hardware at a certain point in ti me

2 prior to the expiration of her life expectancy.

3 As I quite often explain to patients, that when

4 they're younger --

5 COURT REPORTER: Can you please slow down?

6 MR. LAGE: Yes. And you need a knee

7 replacement, as opposed to being 63 or 73, it's

8 very similar to buying -- people buying a brand

9 new car. Cars are much better than they were in

10 the 60s and 70s. Unfortunately just like a bran d

11 new car, if one person drives it more on Sundays

12 and the Sunday driver is going to last a lot

13 longer, and he goes into a dissertation on why h e

14 believes that she's going to need a knee

15 replacement in the future.

16 He says there's not a statistic, exactly, b ut

17 it's definitely well known and well accepted tha t

18 a younger patient is more likely to need a

19 revision in the future. That's why we try to ho ld

20 off on knee replacements and it would be the las t

21 choice for younger individuals.

22 We believe that much like in Advid and Whit e

23 versus Westland (phonetic), this is the type of

24 testimony that can be presented to the jury, and

25 that they can give the weight that they believe it

19

add -hyphenated in MW as an adjective

'60s and '70s add -

Note: When well and a participle come after the noun, the hyphen is dropped because the participle becomes part of the verb phrase. Morson's 148b.

1 deserves in determining what her future medical

2 expenses are going to be. They can buy into it

3 based on a reasonable degree of medical

4 probability, or they could discount it. But I

5 believe it to be a jury question.

6 THE COURT: Yes?

7 MS. FENELLO: Thank you, Your Honor. You

8 made the correct ruling at the time this motion

9 was first heard, initially. And that's because

10 Doctor didn't say, as was represented,

11 quote, "why he believes she's going to need a knee

12 replacement in the future." Unquote.

13 He said he didn't know if she was going to

14 need one in the future.

15 THE COURT: That's what I recall reading,

16 and I don't recall reading anything else.

17 Let's put it that way.

18 I recall reading he said I don't know.

19 MS. FENELLO: At Page 89 of his deposition,

20 when asked if he had an opinion about her knee for

21 future replacement.

22 Her knee, as opposed to that of the general

23 public, he unambiguously stated I can't answer

24 that.

25 When he was asked, in other words, when this

20

Dr.

spacing

this is part of the same thought

1 there are a pluther of reasons that could occur in

2 the future, that could possibly cause the need f or

3 a replacement. He admitted unambiguously, becau se

4 he had not seen her for almost two years since t he

5 time of the depo, and presumingly hasn't seen he r

6 again. He did not have the information. He did

7 not have the facts, of course a expert would nee d

8 to make such an opinion, that any of those facto rs

9 were pertaining to her. He just said she may ne ed

10 it.

11 I said -- he said at Page 90. "I can't go as

12 far as saying I don't have any reason to believe

13 that is an indication she needs a revision now.

14 All of these variables could come into play .

15 That's not a sufficient basis for allowing

16 testimony. And this is just another example of

17 where -- when the witness himself says I can't s ay

18 that quote, unquote it should be full stop, end of

19 the inquiry. He did not say that this Plaintiff

20 is going to need it.

21 He talked in general terms and was very

22 specific, and I'm not sure the word I want to us e,

23 but very specific and conservative in stating wh at

24 he could say that he knew or believed, versus wh at

25 he couldn't attribute to this Plaintiff. And

21

plethora

add ,

end "

add , add ,

1 absolutely that is the reason that Your Honor

2 ruled correctly the first time. And Your Honor,

3 as you know, in order for the jury to get this

4 information, and then award her damages, that --

5 there is no basis to award her damages for a

6 possible, future knee replacement, under this

7 state of the record at all. It's just the

8 opposite. Her doctor said he could not say that

9 period, that any jury would be allowed to consider

10 to award her some money. It has to be only

11 medical expenses that are reasonably certain to be

12 incurred in the future that are recoverable.

13 So, at this stage of the game, there's no

14 basis for that, on this record, and that's why the

15 motion for reconsideration should be denied. And

16 I assume Dr. will testify consistently

17 with the deposition. But when it's represented

18 that he said one thing, much more extensive --

19 THE COURT: Where did this come from?

20 MS. FENELLO: What?

21 THE COURT: What he cited on Page 3 and 4

22 of his motion for reconsideration?

23 MR. LAGE: It comes from Page 77 and 78 of

24 Dr. 's deposition.

25 THE COURT: This was provided to me at the

22

no , no ,

add ,

1 time of the original --

2 MR. LAGE: No.

3 THE COURT: Why not?

4 MR. LAGE: We did not have the deposition

5 here, unfortunately.

6 THE COURT: I mean, I have the pages. I

7 made my ruling based upon what I was provided.

8 And I read what his testimony was, and I certainly

9 never read this.

10 MR. LAGE: I understand, and we argued to

11 the Court, that based on our recollection, this is

12 what Dr. had said. Unfortunately, I did

13 not have the record with me.

14 THE COURT: Well, I need the deposition.

15 MR. LAGE: Okay.

16 MS. FENELLO: Your Honor, we filed a brief

17 response today, and we E-courtesy this and E-filed

18 it.

19 THE COURT: Today?

20 MS. FENELLO: I have a hard copy.

21 THE COURT: I can tell you today, I did not

22 get it or read it.

23 MS. FENELLO: I could hand it up. It does

24 have a complete copy of the deposition transcript.

25 MR. LAGE: I don't have an objection. I

23

eFiledeCourtesy

1 have seen it before, and it gives Your Honor the

2 opportunity to review the deposition.

3 THE COURT: Let me look at the deposition,

4 because as I said, this was not presented to me.

5 MS. FENELLO: Thank you, Judge.

6 THE COURT: All right. I have to read it

7 and take it under consideration.

8 MR. LAGE: Thank you, Your Honor.

9 THE COURT: What else? Anything else?

10 MR. BUCHHOLZ: Your Honor, there were two

11 other motions scheduled for today, but Mr. Mille r

12 was unable to attend in person. We agreed not t o

13 address those issues, because he was unable to

14 come in person. That's it for today.

15 MR. LAGE: All right. Perfect.

16 MR. BUCHHOLZ: But to be continued.

17 THE COURT: That's what I was afraid of.

18 MR. LAGE: That would just have to do with

19 them for the most part, the defense lawyers, for

20 the most part.

21 MR. MARTINEZ: Judge, in terms of

22 scheduling, are we going to be going the first

23 week or --

24 THE COURT: Are you scheduled for January?

25 MR. BUCHHOLZ: No. We are on the February

24

keep together