Goines v. Lee Memorial Health System et al

Filing 189

ORDER granting 139 Motion in Limine; granting in part and denying in part 140 Motion in Limine; denying 142, 143, 144, and 145 Motions in Limine. Signed by Judge John E. Steele on 5/22/2019. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.

Case No:

2:17-cv-656-FtM-29UAM

LEE MEMORIAL HEALTH SYSTEM,
d.b.a. Cape Coral Hospital
and JEOVANNI HECHAVARRIA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant Lee Memorial’s
Motions in Limine (Docs. #139, 140, 142, 143, 144, 145) filed on
February 5, 2019.

Plaintiff filed Responses in Opposition (Docs.

#166, 167, 168, 169, 171, 172) on March 4th and 5th, 2019.
I.
Lee

Memorial’s

motions

seek

to

exclude

witnesses that relate to a variety of subjects.

evidence

and/or

The Court will

address these subjects in turn.
1. Testimony of Mary McGillicuddy and Lawrence Antonucci
Lee Memorial first moves to exclude the testimony of Mary
McGillicuddy,

Lee

Memorial’s

chief

legal

officer

and

general

counsel, and Dr. Lawrence Antonucci, Lee Memorial’s former chief
operating officer and current chief executive officer.
#139.)

(Doc.

In her response, plaintiff notes that she will not call

either witness unless Lee Memorial “opens the door to the need for
their

testimony.”

(Doc.

#172,

pp.

1-2.)

Given

plaintiff’s

response, the motion is granted to the extent that plaintiff may
not call Mary McGillicuddy or Lawrence Antonucci as a witness
without prior approval of the Court.
2. Evidence of Past Acts
Lee Memorial next seeks to exclude evidence of past acts
allegedly committed by defendant Jeovanni Hechavarria.
#140.)

(Doc.

Specifically, Lee Memorial seeks to exclude evidence

regarding (1) Hechavarria’s discharge from the military, (2) three
temporary restraining orders entered against Hechavarria that were
sought by his former wife, and (3) Hechavarria’s write up and
termination at a former place of employment.

(Id. pp. 6-18.)

Lee

Memorial argues these topics should be excluded because they are
irrelevant and inadmissible under Rule 403.

(Id.)

The Court will

address these topics in turn.
A. Military Discharge
The record contains a Certificate of Release discharging
Hechavarria from active duty with the United States Navy.
#140-2, p. 39.)

(Doc.

The certificate notes that Hechavarria served

under honorable conditions, but also lists the reason for discharge
as “MISCONDUCT (SERIOUS OFFENSE).”

Id.

Hechavarria testified at

a deposition that he was discharged after misusing prescribed
sleeping pills, which he had taken after his then-wife informed

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him she was having an affair and leaving him.
21.)

(Doc. #140-1, p.

Hechavarria’s former wife testified at a deposition that

Hechavarria
suicide.
Lee

told

her

he

was

discharged

for

trying

to

commit

(Doc. #169-1, pp. 50-51.)
Memorial

argues

evidence

relating

to

Hechavarria’s

military discharge is irrelevant because it would not put Lee
Memorial on notice that Hechavarria was an unfit employee.
#140, p. 6.)
Hechavarria

(Doc.

Specifically, Lee Memorial argues that even if
was

discharged

for

taking

prescription

medicine

improperly, it would not raise an inference that Hechavarria was
unfit or likely to commit a sexual assault upon a patient.
The

Court

agrees.

Plaintiff

argues

that

evidence

(Id.)
that

Hechavarria’s discharge from the military for attempting to commit
suicide “is absolutely relevant to whether or not Hechavarria had
a mental or psychological condition that made him unfit to be a
night

nurse

at

Cape

Coral

Hospital.”

(Doc.

#169,

p.

13.)

However, the Court finds the evidence related to Hechavarria’s
military discharge tenuous at best as to whether Hechavarria was
unfit to be a night nurse when employed by Lee Memorial roughly
seven years later.

See Doe v. NCL (Bahamas) LTD., 2012 WL

12844743, *1, 4 (S.D. Fla. Nov. 27, 2012) (concluding evidence of
plaintiff’s suicide attempt fifteen years earlier was too remote
to be relevant).

Accordingly, the Court grants this portion of

Lee Memorial’s motion and excludes plaintiff’s evidence related to

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Hechavarria’s military discharge without prior approval of the
Court.
B. Restraining Orders
Lee Memorial next seeks to exclude evidence relating to three
temporary restraining orders entered against Hechavarria by his
former wife in 1999, 2010, and 2015.

(Doc. #140, pp. 10-16.)

Lee

Memorial argues such evidence is irrelevant to show whether Lee
Memorial knew or should have known Hechavarria was likely to commit
a sexual assault against a stranger.
the

evidence

is

relevant

to

(Id.)

plaintiff’s

Plaintiff responds
claims

of

negligent

supervision and retention, which require showing Lee Memorial knew
or should have known of Hechavarria’s unfitness.
5-12.)

(Doc. #169, pp.

Having considered the arguments of each party, the Court

finds the evidence is admissible.
Negligent retention and negligent supervision occur when,
during the course of employment, the employer becomes aware or
should

have

become

aware

of

problems

with

an

employee

that

indicated his unfitness, and the employer fails to take further
action such as investigating, discharge, or reassignment.

Degitz

v. S. Mgmt. Servs., Inc., 996 F. Supp. 1451, 1461 (M.D. Fla. 1998)
(citations omitted); Alcantara v. Denny’s Inc., 2006 WL 8439596,
*5 (M.D. Fla. Jan. 19, 2006) (citation omitted).

An issue in this

case is whether Lee Memorial sufficiency investigated Hechavarria
after a patient, non-party Brianna Hammer, accused him of sexual

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assault.

Plaintiff argues Lee Memorial should have conducted a

background investigation of Hechavarria after that allegation, and
that such an investigation would have discovered the temporary
restraining orders.

(Doc. #169, pp. 6-7.)

The Court finds the

evidence relating to the three restraining orders relevant to
plaintiff’s claims.
Regarding

Lee

Memorial’s

argument

that

the

evidence

is

inadmissible under Rule 403, (Doc. #140, pp. 13-14, 16), the Court
disagrees.

The probative value of the evidence outweighs the risk

of prejudice.

Accordingly, the Court denies Lee Memorial’s motion

on this topic.
C. Former Employment
Finally, Lee Memorial seeks to exclude evidence relating to
Hechavarria’s write up and termination from a car dealership
roughly four years before he began working for Lee Memorial.
#140, p. 16.)

(Doc.

Per a Payroll/Status Change Notice in the record,

Hechavarria was laid off from the dealership in March 2010.
#140-3, p. 40.)

(Doc.

Lee Memorial argues the evidence should be

excluded because it is irrelevant and inadmissible under Rule 403.
(Doc.

#140,

pp.

16-18.)

Plaintiff

acknowledges

there

is

no

evidence from the car dealership as to why plaintiff’s employment
was terminated, but seeks to offer the testimony of Hechavarria’s
former wife that Hechavarria stated he was terminated for “looking
at porn online at work.”

(Doc. #169, p. 15; Doc. #169-1, pp. 123-

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24.)

Plaintiff argues such evidence, along with other facts,

establishes Hechavarria’s “likelihood to engage in inappropriate
work behavior.”

(Doc. #169, p. 15.)

Having reviewed the arguments of the parties, the Court finds
the evidence related to Hechavarria’s former employment at the car
dealership is inadmissible.

Plaintiff has not identified any

evidence which would be admissible to establish that Hechavarria
was terminated for watching pornography at work.

Additionally,

plaintiff does not show how Lee Memorial would have known this
from the available records.

Accordingly, the Court grants this

portion

excludes

of

the

motion

and

evidence

related

to

the

termination of Hechavarria’s employment at the car dealership.
3. Evidence of Unrelated Assault Allegations
Lee Memorial next moves to exclude evidence of thirteen sexual
assault

allegations

raised

by

various

patients

Memorial employees from 2012 to the present.

against

Lee

(Doc. #142.)

Lee

Memorial argues the evidence is “only marginally relevant at best,”
and should be excluded under Rule 403 regardless.

(Id. pp. 4-5.)

As to Lee Memorial’s first argument, the Court finds the
evidence

of

plaintiff’s

prior

sexual

section

1983

assault
claim

allegations

that

Lee

Memorial

“deliberate indifference” to the rights of patients. 1

1

relevant

to

showed

To establish

Specifically, plaintiff has alleged Lee Memorial evidenced
deliberate indifference by failing to supervise Hechavarria and

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a

section

1983

claim

premised

on

deliberate

indifference,

a

plaintiff must present some evidence that a local government entity
knew of a need to train and/or supervise in a particular area and
made a deliberate choice not to take any action.

Gold v. City of

Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citations omitted).
Without notice of a need to train or supervise in a particular
area, the entity is not liable as a matter of law for any failure
to train and supervise.

Id. at 1351.

Here, evidence of prior

sexual assault allegations against other Lee Memorial employees is
relevant to demonstrating Lee Memorial’s notice of a need to train
and supervise.

See Am. Fed’n of Labor & Cong. of Indus. Orgs. v.

City of Miami, 637 F.3d 1178, 1189 (11th Cir. 2011) (noting that
a plaintiff may demonstrate notice “by showing a ‘widespread
pattern of prior abuse’ or even a single earlier constitutional
violation” (citation omitted)). 2
Lee

Memorial

next

argues

that

even

if

the

unrelated

allegations are relevant, they are inadmissible under Rule 403.

investigate sexual assault allegations made against him.
#31, pp. 5-7.)
2

(Doc.

The evidence would also be relevant to the foreseeability
element of plaintiff’s negligent security claim.
See Hardy v.
Pier 99 Motor Inn, 664 So. 2d 1095, 1098 (Fla. 1st DCA 1995) (“Pier
99’s experience with violent and criminal activity on its premises
evidenced by the 911 calls, even if less serious than the tragic
violence experienced by Hardy and his friends, creates an issue
for the finder of fact regarding notice to Pier of the potential
danger and the foreseeability of the instant attack.”).

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(Doc. #142, pp. 5-8.)

While the Court appreciates Lee Memorial’s

concerns, the law permits a plaintiff to establish a deliberate
indifference section 1983 claim by demonstrating a “widespread
pattern of prior abuse.”

See Am. Fed’n of Labor & Cong. of Indus.

Orgs., 637 F.3d at 1189.

Plaintiff is seeking to show such a

pattern and cannot do so without evidence of the prior allegations.
Accordingly, the Court finds the probative value of the evidence
permits its admission.

See United States v. Norton, 867 F.2d

1354, 1361 (11th Cir. 1989) (“Rule 403 is an extraordinary remedy
which should be used only sparingly since it permits the trial
court to exclude concededly probative evidence.

The balance under

the Rule, therefore, should be struck in favor of admissibility.”
(marks and citations omitted)).
4. Evidence of Criminal Investigations and Prosecutions
Lee Memorial next moves to exclude evidence of the criminal
investigations and pending prosecutions of Hechavarria, as well as
the

testimony

(Doc.

of

#143.)

Hechavarria

was

the

Per

investigating

the

Twentieth

criminally

charged

law

enforcement

Judicial
with

a

officers.

Circuit’s
sexual

docket,

battery

on

plaintiff roughly a month before plaintiff filed the instant case.
See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994)
(recognizing that a court may take judicial notice of a document
filed in another court to establish the fact of such litigation
and related filings).

Hechavarria has since been charged with two

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additional sex offenses, the victims of which were both patients
at

the

Cape

Coral

Hospital.

Lee

Memorial

seeks

to

prevent

plaintiff from introducing into evidence the criminal files from
the three investigations, as well as testimony from nine law
enforcement officers who investigated the allegations.
#143, pp. 2-3.)

Lee Memorial argues such evidence is irrelevant,

hearsay, and inadmissible under Rule 403.
Neither

(Doc.

Lee

Memorial’s

motion

(Id. pp. 4-10.)

nor

include the criminal files in dispute.

plaintiff’s

response

It is also unclear from

the submitted documents what testimony law enforcement officers
would provide in this case, or how the files or testimony would be
admissible.

Accordingly,

while

the

Court

questions

the

admissibility of such files or testimony, Lee Memorial’s motion is
denied at this time.
5. Evidence of Christine Montesino-Mena’s Personal Belief
Lee Memorial next seeks to exclude evidence of a Cape Coral
Police

Department

Detective

detective’s

Christine

personal

Montesino-Mena,

belief.

who

(Doc.

investigated

#144.)

Hammer’s

allegation against Hechavarria, testified at a deposition in this
case that she “believed something occurred” and informed Lee
Memorial during the investigation that she “believed the victim.”
(Doc.

#144-1,

p.

11.)

However,

she

later

contradicted

this

testimony by stating she never told anyone at Lee Memorial that
she believed Hammer.

(Id. pp. 12, 13.)

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Lee Memorial now seeks

to

exclude

evidence

of

Montesino-Mena’s

personal

belief

that

“something occurred” and any argument she shared that belief with
Lee Memorial.

(Doc. #144, p. 7.)

Lee Memorial argues the

statement is irrelevant and inadmissible under Rule 403.
3.)

(Id. p.

The Court disagrees.
Evidence that Montesino-Mena informed Lee Memorial that she

believed “something occurred” between Hechavarria and Hammer is
relevant to plaintiff’s claims, not for the truthfulness of her
beliefs, but for the fact that she said it.

For example, as

discussed

claim

above,

plaintiff’s

section

1983

requires

demonstrating Lee Memorial was on notice of a need to train or
supervise Hechavarria.

See Gold, 151 F.3d at 1350.

Similarly,

plaintiff’s negligent retention and negligent supervision claims
require showing Lee Memorial was aware or should have been aware
of problems indicating Hechavarria’s unfitness, see Degitz, 996 F.
Supp. at 1461 (citations omitted); Alcantara, 2006 WL 8439596, *5
(citation

omitted),

and

establishing

Hechavarria’s

dangerous

propensities is pertinent to plaintiff’s negligent security claim,
see Banosmoreno v. Walgreen Co., 299 Fed. App’x 912, 913 (11th
Cir.

2008)

(citation

omitted).

Evidence

that

Montesino-Mena

informed Lee Memorial of her personal belief is relevant to these
claims.
under

Further, the Court finds the evidence is not inadmissible
Rule

403.

Montesino-Mena’s

contradiction

during

her

deposition testimony regarding whether she expressed her personal

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belief to anyone at the hospital may be a basis for impeachment,
but does not render her testimony inadmissible.
6. Evidence of J.L.’s Sexual Assault Allegation
Finally, Lee Memorial seeks to exclude evidence of a sexual
assault allegation made by an unrelated individual, J.L., against
Hechavarria.

(Doc. #145.)

J.L. alleges Hechavarria sexually

assaulted her while she was a patient at the Cape Coral Hospital
in April 2016.

(Doc. #168, pp. 15-17.)

J.L. did not make the

allegation until after Hechavarria’s employment was terminated. 3
Lee Memorial now argues J.L.’s allegations are irrelevant and
inadmissible under Rule 403.

(Doc. #145, pp. 3-8.)

Having considered the arguments of the parties, the Court
finds J.L.’s allegations are admissible as similar acts evidence.
See Fed. R. Evid. 415(a) (“In a civil case involving a claim for
relief

based

on

a

party’s

alleged

sexual

assault

or

child

molestation, the court may admit evidence that the party committed
any other sexual assault or child molestation.”).

To the extent

Lee Memorial argues the allegations are irrelevant because Lee
Memorial

Hechavarria

was

discharged, (Doc. #145, pp. 3-4), the Court is unconvinced.

The

relevancy

3

did

of

not

the

J.L. gave a
roughly two years
five months after
case. (Doc. #168,

learn

of

evidence

them

is

until

not

after

related

to

Lee

Memorial’s

statement to the Cape Coral Police Department
after the alleged sexual assault occurred and
plaintiff filed her initial Complaint in this
p. 12; Doc. #2.)

- 11 -

knowledge or notice, but rather to whether Hechavarria sexually
assaulted plaintiff.

See Cleveland v. KFC Nat’l Mgmt. Co., 948

F. Supp. 62, 65 (N.D. Ga. 1996) (“[U]nder Rule 415, evidence of
past

misconduct

admitted.”).

that

supports

plaintiff’s

story

should

be

Further, the Court finds the allegations are more

probative then prejudicial given the timing of J.L.’s alleged
assault, the similarities of the three alleged assaults, and
Hechavarria’s denial that the assaults occurred.

See Medina v.

United Christian Evangelistic Ass’n, 2009 WL 5066675, *2 (S.D.
Fla. Dec. 15, 2009) (finding evidence admissible under Rule 415
should not be excluded under Rule 403 because the probative value
of the evidence was “extremely high” due to “its similarity with
the allegations in this case” and the defendant’s denial of the
plaintiff’s allegations of sexual contact).

As such, the Court

denies Lee Memorial’s motion on this topic.
Accordingly, it is now
ORDERED:
1. Defendant Lee Memorial’s Motion in Limine (Doc. #139) is
GRANTED to the extent that plaintiff may not call Mary
McGillicuddy or Lawrence Antonucci as a witness without
prior approval of the Court.
2. Defendant Lee Memorial’s Motion in Limine (Doc. #140) is
GRANTED IN PART and DENIED IN PART.

To the extent the

motion seeks to exclude evidence relating to defendant

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Hechavarria’s military discharge or former employment at
the car dealership, the motion is granted.

To the extent

the motion seeks to exclude evidence relating to three
temporary restraining orders previously entered against
Hechavarria, the motion is denied.
3. Defendant Lee Memorial’s remaining Motions in Limine (Docs.
#142, 143, 144, and 145) are DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2019.

Copies:
Counsel of Record

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22nd

day