UNITED	STATES	DISTRICT	COURT

SOUTHERN	DISTRICT	OF	FLORIDA

MIAMI	DIVISION

Case	No.	20‐21885‐CIV	COOKE/GOODMAN

ANTONIO	HERNANDEZ,			

	 Plaintiff,	

v.		

UNITED	STATES	OF	AMERICA,		

	 Defendant.	

					 /

PLAINTIFF’S	RESPONSE	IN	OPPOSITION	TO	THE	DEFENDANT’S	DAUBERT	MOTION	TO	

EXCLUDE	PLAINTIFF’S	EXPERT	OPINION	TESTIMONY	

	

	 Plaintiff	hereby	files	this	Response	in	Opposition	to	Defendant’s	Daubert	Motion	to	

Exclude	 the	 Plaintiff’s	 Expert	 Opinion	 Testimony,	 and	 in	 support	 of	 the	 same,	 Plaintiff	

states:		

I.	 Introduction:		

	 The	Plaintiff	contends	that	 the	Defendant’s	motion	is	misplaced,	 fails	 to	inform	 the	

Court	 of	 all	 the	 disputed	 facts,	 and	 does	 not	 meet	 the	 elements	 required	 to	 strike.	

Furthermore,	the	Plaintiff	contends	that	as	evidenced	below	we	have	met	our	burden	and	

satisfied	all	the	elements	in	Daubert	with	the	countless	articles	attached	that	are	on	point	

for	our	liability	and	causation	opinions.	This	is	a	not	a	case	 that	involves	issues	of	highly	

technical	science,	or	a	case	that	requires	an	expert	to	review	7,000൅	documents.	This	is	a	

very	 straightforward	 case	 in	 which	 a	 man	 stepped	 on	 a	 nail	 and	 developed	 an	 acute	

infection	 of	 his	 skin	 and	 then	lost	 his	leg	 due	 to	 a	 six	 day	 delay.	 	 There	 are	 hundreds	 of	

articles	and	reference	publications	regarding:	ሺ1ሻ	hospitalization	of	diabetic	patients	with	

Cellulitis,	 ሺ2ሻ	 what	 the	 proper	 antibiotic	 coverage	is,	 and	 ሺ3ሻ	 what	is	 commonly	 done	 to	

prevent	Osteomyelitis	and	a	leg	amputation,	including	but	not	limited	to	an	immediate	ER	

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referral.1	 Wherefore,	 Defendant’s	 motion	 should	 be	 denied	 with	 prejudice	 based	 on	 the	

below	facts,	referenced	articles,	and	controlling	case	law.	

II.	 Brief	Factual	Background:	

	 	The	negligence	in	 this	case	surrounds	one	single	outpatient	visit	at	CHI	clinic.	ሾEx.	

10ሿ Our	allegations	of	negligence	have	been	addressed	by	peer	review	articles	for	decades.	

These	allegations	are	supported	by	sworn	testimony	from	our	local	board	certified	internal	

medicine	 expert	 Dr.	 Kevin	 Inwood	 and	 his	 rule	 26	 report.	ሾExs.	 11	 &	 12ሿ Moreover,	 our	

allegations	 regarding	 liability	 and	 causation	 are	 supported	 by	 peer	 review	

articles/reference	publications	and	the	Homestead	medical	records.	This	is	a	case	of	acute	

Cellulitis	 and	 how	 the	 outpatient	 medical	 community	 commonly	 treats	 this	 common	

infection	in	order	to	avoid	a	leg/foot	amputation	due	to	an	infection	that	reaches	the	bone.	

This	issue	is	seen	by	medical	doctors	on	the	daily.		

	 The	Defendants	filed	a	Daubert	motion trying	to	engineer	an	issue	that	Dr.	Inwood	

did	not	review	the	important	and	relevant	documents.	This	is	a	giant	red	herring.	The	only	

ripe	 issue	 at	 bar	 that	 has	 any	 degree	 of	 merit	 to	 discuss	 is	 the	 following:	 If	 CHI	 acted	

appropriately	and	 sent	Mr.	Hernandez	 to	 the	 ER	 on	 January	 15,	 2019,	which	was	 six	 days	

before	he	presented,	more	likely	than	not,	would	have	those	six	days	of	inpatient	care	saved	

his	leg?		

	 We	 assert	 that	 the	 medicine	 and	 the	 overwhelming	 articles	 and	 reference	

publications	supports,	more	likely	than	not,	that	the	answer	is	a	clear	yes.	This	is	not	a	case	

that	involves	a	novel	 theory	of	medicine	 that	has	not	been	 tested.2	Contrary	 to	 that	novel	

issue,	this	is	established	basic	medicine	in	which	Dr.	Inwood	went	in	great	detail	in	order	to	

assist	this	Court	with	understanding	 the	medicine.	The	Defendant’s	motion	is	intended	 to	

confuse	the	Court	regarding	the	relevant	issues	at	bar.	In	addition,	the	Defendant	has	only	

portrayed	 their	 side	 of	 the	 disputed	 facts,	 and	 has	 not	 provided	 the	 entire	 picture.	 One	

example	on	how	the	motion	is	misleading	is	the	misplaced	assertion	 that	Dr.	 Inwood	was	

not	 aware	 of	 a	 possible	 delay	 on	 the	 Plaintiff	 before	 arriving	to	 the	 clinic	 on	 January	 15,	

2019.	It	should	be	noted,	that	for	every	single	document	that	the	Defense	is	trying	to	utilize	

 

1	The	articles	are	attached	as	ሾEx.	1ሿ	through	ሾEx.	9ሿ	and	will	be	discussed	in	greater	detail	below.	 2	A	current	example	is	a	new	COVID‐19	 test	 study	 regarding	 side	effects	 from	 only	getting	 one	 vaccination	

compared	to	two	vaccinations.	

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to	support	the	incident	occurred	around	January	8,	2019,	there	are	two	documents	to	say	it	

was	January	14,	2019.

3		

	 But	most	importantly,	regardless	if	this	accident	occurred	on	January	8,	or	January	

14,	Dr.	Inwood	was	clear	as	day	in	his	deposition	and	in	his	report	that	he	recognized	the	

factual	dispute	about	when	the	incident	occurred,	and	took	that	into	consideration	with	his	

opinions.	So	it	is	very	misplaced	to	try	and	say	he	failed	to	review	those	records,	and	then	

try	and	cherry	pick	a	few	documents	out	of	the	7,000	൅	documents	that	have	circulated	in	

this	case	to	date	to	support	their	motion.	Finally,	it	is	undisputed	that	Dr.	Inwood	reviewed	

all	the	documents,	depositions	and	medical	records	that	were	relevant	to	him	and	what	he	

needed	to	form	his	opinions.	So	regardless	of	the	way	the	Defendant	words	the	motion,	the	

main	 documents	 in	 order	 to	 give	 opinions	 within	 a	 reasonable	 degree	 of	 medical	

probability	were	reviewed.	

ሾEx.	11,	pg.	223,	line	20	to	pg.	224,	line	14ሿ	

20	Q.	Okay.	Doctor,	I	got	about	two	minutes.	I'm	so	

21	sorry.	This	was	scheduled	for	two	to	three	hours,	it's	

22	been	about	six,	So	I	apologize	for	that,	but	thank	you	for	

23	making	the	time	and	being	here	with	us.	

24	So	have	all	your	opinions	today	been	given	with	

25	within	a	reasonable	degree	of	medical	probability?	

1	A.	Yes,	sir,	they	have.	

2	Q.	All	these	records	that	counsel	started	talk	

3	about	while	she	gave	hypotheticals	and	issues	that	are	not	

4	relevant	or	even	factual	to	our	case	‐‐and	that	picked	records	

that	you	didn't	have,	do	any	of	those	records	have	anything	to	

do	with	your	opinions	on	the	deviations	in	the	standard	of	care

in	this	case?	

11	A.	No,	they	do	not.	

	

 

3

 The attorneys that handled this case in the Workers Compensation arena actually filed a joint Pre-trial stipulation 

agreeing that the day of accident was on January 14, 2019, not a week before the visit. It is hard to believe a Defense 

attorney would stipulate to an important fact like this if it was not true. [Ex. 13]

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III.	 Brief	Summary	of	the	Controlling	Law:	

As	 written	 by	 Magistrate	 Jonathan	 Goodman	 in	 Carideo	 v.	Whet	 Travel,	 2018	WL	

1367444	ሺUS	SD,	Miami	2018ሻ	“Daubertizing”	is	an	informal	term	lawyers	sometimes	use	

when	referring	to	efforts	designed	to	challenge	ሺand	ultimately	exclude	the	other	side	from	

offering	expert	witness	opinions.ሻ	Under	this	framework,	district	courts	are	charged	with	a	

gatekeeping	 function	 “to	 ensure	 that	 speculative,	 unreliable	 expert	 testimony	 does	 not	

reach	 the	 jury.”	 McCorvey	 v.	 Baxter	 Healthcare	 Corp.,	 298	 F.3d	 1253,	 1256	 ሺ11th	 Cir.	

2002ሻ.	

Rule	702	provides	that:	

A	 witness	 who	 is	 qualified	 as	 an	 expert	 by	 knowledge,	 skill,	 experience,	

training,	or	education	may	testify	in	the	form	of	an	opinion	or	otherwise	if:	

ሺaሻ	the	expert’s	scientific,	technical,	or	other	specialized	knowledge	will	help	

the	trier	of	fact	to	understand	the	evidence	or	to	determine	a	fact	in	issue;	

ሺbሻ	the	testimony	is	based	on	sufficient	facts	or	data;	

ሺcሻ	the	testimony	is	the	product	of	reliable	principles	and	methods;	and	

ሺdሻ	the	expert	has	reliably	applied	the	principles	and	methods	to	the	facts	of	

the	case.	

Fed.	R.	Evid.	702.	

		 To	 fulfill	its	obligation	under	Daubert,	a	trial	court	engages	in	a	three‐part	inquiry:	

ሺ1ሻ	 whether	 the	 expert	is	 qualified	 to	 testify	 competently;	 ሺ2ሻ	 whether	 the	methodology	

used	to	reach	the	conclusions	is	sufficiently	reliable;	and	ሺ3ሻ	whether	the	testimony	assists	

the	 trier	 of	 fact	 to	 understand	 the	 evidence	 or	 to	 determine	 a	 fact	 at	 issue.	 Rink	 v.	

Cheminova,	Inc.,	400	F.3d	1286,	1291‐92	ሺ11th	Cir.	2005ሻ.	

		 The	district	court	has	“broad	discretion	in	determining	whether	to	admit	or	exclude	

expert	 testimony	 and	 its	 decision	 will	 be	 disturbed	 on	 appeal	 only	 if	 it	 is	 manifestly	

erroneous.”	Evans	 v.	Mathis	 Funeral	Home,	 996	 F.2d	 266,	 268	 ሺ11th	 Cir.	 1993ሻ	 ሺinternal	

citations	 omittedሻ.	 Because	 the	 task	 of	 evaluating	 the	 reliability	 of	 expert	 testimony	 “is	

uniquely	entrusted	to	the	district	court”	under	Daubert,	appellate	courts	give	district	courts	

“considerable	 leeway	 in	 the	 execution	 of	 their	 Daubert	 duties.”	 Rink,	 400	 F.3d	 at	 1291	

ሺinternal	quotations	omittedሻ.	

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	 The	 party	 offering	 the	 expert	 has	 the	 burden	 of	 satisfying	 each	 of	 these	 three	

elements	by	a	preponderance	of	the	evidence.		See	Allison	v.	McGhan	Med.	Corp.,	184	F.3d	

1300,	1306	ሺ11th	Cir.1999ሻ.	

IV.		 Daubert	Element	1:	Qualifications:	The	Law	and	Facts.	

	 It	is	unclear	if	the	Defendant	is	challenging	the	qualification	element	for	Dr.	Inwood.	

Because	of	this,	and	in	an	abundance	of	caution,	we	must	address	this	element.	Dr.	Inwood	

clearly	satisfies	this	element	under	the	law	and	facts	of	this	case.4

	 An	 expert	 needs	 to	 be	 minimally	 qualified,	 and	 any	 objections	 to	 the	 level	 of	 his	

expertise	 typically	 go	 to	 the	 credibility	 and	 weight	 of	 the	 expert’s	 opinion,	 not	 the	

admissibility	of	it.	See Clena	Invs.,	Inc.	v.	XL	Specialty	Ins.	Co.,	280	F.R.D.	653,	661	ሺS.D.	Fla.	

2012ሻ.	 The	 test	 is	 “whether	 the	 subject	 matter	 of	 the	 witness’s	 proposed	 testimony	 is	

sufficiently	within	the	expert’s	expertise.”	In	re	Mentor	Corp.	ObTape	Transobturator	Sling	

Prods.	Liab.	Litig.,	711	F.	Supp.	2d	1348,	1367	ሺM.D.	Ga.	2010ሻ	ሺinternal	citation	omittedሻ.	

		 A	lack	of	formal	education	does	not	automatically	preclude	an	expert	from	testifying	

because	 “experience	 in	 a	 field	 may	 offer	 another	 path	 to	 expert	 status.” United	 States	 v.	

Masferrer,	367	F.	Supp.	2d	1365,	1372	ሺS.D.	Fla.	2005ሻ	ሺemphasis	suppliedሻ	ሺciting	United	

States	v.	Frazier,	387	F.3d	1244,	1260‐61	ሺ11th	Cir.	2004ሻሻ.	Indeed,	the	Committee	Note	to	

the	2000	Amendments	of	Rule	702	explains	that	“ሾnሿothing	in	this	amendment	is	intended	

to	 suggest	 that	 experience	 alone	 ...	 may	 not	 provide	 a	 sufficient	 foundation	 for	 expert	

testimony.”	Fed.	R.	Evid.	702	Advisory	Committee’s	Note,	2000	Amendment.	

		 Rule	702	requires	an	expert	witness	to	have	“specialized	knowledge”	regarding	the	

area	of	testimony.	Fed.	R.	Evid.	702ሺaሻ.	As	noted,	the	basis	of	this	specialized	knowledge	“can	

be	 practical	 experience	 as	 well	 as	 academic	 training	 and	 credentials.”	 Am.	 Tech.	 Res.	 v.

United	States,	 893	 F.2d	 651,	 656	 ሺ3d	 Cir.	 1990ሻ	 ሺinternal	 citation	 omittedሻ; Hammond	 v.	

Int’l	Harvester	Co.,	691	F.2d	646,	653	ሺ3d	Cir.	1982ሻ	ሺ“under	Rule	702,	an	individual	need	

possess	 no	 special	 academic	 credentials	 to	 serve	 as	 an	 expert	 witness....	 ሺPሻractical	

experience	as	well	as	academic	 training	and	credentials	may	 be	the	 basis	 of	 qualification	

 

4

 The Defendant is claiming that Dr. Inwood fails to satisfy element one of Daubert, but at the same time, they 

retained a semi-retired 75 year old pediatrician from New Mexico that who has not had had a private clinical 

practice since 2002, has not treated an adult like Mr. Hernandez for a condition like this since 2004 and does not 

actively supervise mid-level practitioners in a clinical setting. [Ex. 14].

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ሺas	an	expert	witnessሻ.”ሻ	 ሺinternal	 quotation	 omittedሻ;	 see	also Galarza	 v.	 Carnival	 Corp.,	

No.	15‐24380,	2016	WL	7507883,	at	*1	ሺS.D.	Fla.	Aug.	8,	2016ሻ	ሺ“experts	may	be	qualified	

in	various	ways,”	such	as	“scientific	training	or	education”	and	“experience	in	a	field”ሻ.	

		 Courts	 have	 liberally	 interpreted	 the	 specialized	 knowledge	 requirement,	 and	 have	

stated	that	this	policy	of	liberal	admissibility	of	expert	testimony	“extends	to	the	substantive	

as	well	as	the	formal	qualification	of	experts.”	In	re	Paoli	R.R.	Yard	PCB	Litig.,	35	F.3d	717,	

741	ሺ3d	Cir.	1994ሻ;	see	also Waldorf	v.	Shuta,	142	F.3d	601,	625	ሺ3d	Cir.	1998ሻ	ሺquoting	In	

re	Paoli	R.	R	Yard,	35	F.3d	at	741	for	this	propositionሻ.	

		 Given	 this	 flexibility,	a	witness	 “who	possesses	general	 knowledge	 of	a	 subject	may	

qualify	 as	 an	 expert	 despite	 lacking	 specialized	 training	 or	 experience,	 so	 long	 as	 his	

testimony	would	likely	assist	a	trier	of	fact.”	Whelan	v.	Royal	Caribbean	Cruises,	Ltd.,	976	F.	

Supp.	 2d	 1328,	 1331	 ሺS.D.	 Fla.	 2013ሻ	 ሺemphasis	 addedሻ	 ሺrejecting	 challenges	 to	

pulmonologist	 and	 hematologist	 in	 wrongful	 death	 action	 against	 cruise	 ship	 companyሻ	

ሺinternal	citation	omittedሻ;	see	generally Maiz	v.	Virani,	253	F.3d	641,	665	ሺ11th	Cir.	2001ሻ	

ሺrejecting	 Daubert	 challenge	 to	 economist	 in	 civil	 RICO	 case	 involving	 fraudulent	 real	

estate	transactions	even	though	the	economist	had	no	real	estate	development	experienceሻ.	

	 i.	 	Element	1:	Dr.	Inwood	Clearly	Meets	the	Burden	for	Qualifications.	

	 In	 this	 case	 it	 is	 undisputed	 that	 Dr.	 Inwood	 went	 to	 medical	 school,	 obtained	 an	

accredited	 internship	 and	 internal	 medicine	 residency,	 is	 board	 certified	 in	 Internal	

medicine,	is	licensed	 to	practice	medicine	in	Florida,	and	has	a	current	and	active	clinical	

practice	 in	 Jupiter,	 Florida	 in	 which	 he	 evaluates	 and	 treats	 adults	 with	 acute	 skin	

infections	for	decades.	ሾEx.	11,	12	and	15ሿ.

	 Furthermore,	it	is	undisputed	that	he	actively	supervises	mid‐level	practitioners	like	

Defendant	 ARNP	Menberu	in	 a	 clinical	 setting	 on	 the	 daily.	 Finally,	 because	 of	 his	 active	

clinical	 practice,	 his	 training,	 and	 his	 experience	 with	 acute	 skin	 infections,	 he	 has	 vast	

knowledge	regarding	infectious	conditions	like	Cellulitis	and	how	to	treat	them	and	how	to	

avoid	infections	to	the	bone.	In	fact,	he	went	over	in	pain	staking	detail	this	issue	during	his	

224	page	deposition.	

		 Based	 on	 the	 undisputed	 facts	 regarding	 Dr.	 Inwood’s,	 training,	 experience,	 and	

clinical	 experience	with	 Cellulitis,	 and	 the	 controlling	 case	law	 that	 defines	 the	 standard,	

Plaintiff	 strongly	 contends	 that	 we	 have	 met	 our	 burden	 to	 prove	 to	 this	 Court	 that	 the	

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Defense	is	not	able	to	satisfy	element	one	of	this	Daubert	Challenge.		

V.	 Element	2:	Reliable	Methodology:	The	Law	and	Facts.	

	 So	again,	we	humbly	contend	that	only	issue	that	has	any	weight	is:	did	Dr.	Inwood	

utilize	reliable	methodology	in	forming	his	ultimate	opinion,	which	is	“more	likely	than	not,	if	

Mr.	Hernandez	was	sent	to	the	ER	as	testified	to	by	the	ARNP	on	January	15,	2019,	would	he	

have	his	leg?	

	 Everything	else	is	 fluff	and	not	 the	issue.	Again,	Dr.	 Inwood	clearly	 touched	all	 the	

elements	and	basis	for	this.	In	an	effort	to	mucky	the	waters,	the	Defendant	took	an	almost	

six	hour	225	page	marathon	deposition	 to	 try	and	get	any	sound	bites	 they	can	attach	 to	

this	 motion.	 The	 vast	 majority	 of	 those	 questions	 were	 based	 on	 non‐relevant	

hypothetical’s	or	made	up	facts	that	have	nothing	to	do	with	our	case.	Fact	of	the	matter	is,	

Dr.	 Inwood’s	 opinions	 are	 clear,	 concise	 and	 reliable,	 and	 satisfies	 the	 required	 criteria	

listed	below.	 	

	 Reliability	 of	 the	 methodology,	 ሾisሿ	 a	 separate	 factor,	 requireሾingሿ	 “an	 exacting	

analysis	of	the	proffered	expert’s	methodology.”	McCorvey,	298	F.3d	at	1257.	That	analysis	

takes	 into	 consideration	 a	 number	 of	 factors,	 including:	 ሺ1ሻ	 whether	 the	 expert’s	

methodology	can	be,	and	has	been,	tested;	ሺ2ሻ	whether	the	expert’s	scientific	technique	has	

been	 subjected	 to	 peer	 review	 and	 publication;	 ሺ3ሻ	whether	 the	method	 employed	 has	 a	

known	rate	of	error;	and	ሺ4ሻ	whether	the	technique	is	generally	accepted	in	the	scientific	

community.	Quiet	Tech.	DC‐8,	326	F.3d	at	1341	ሺinternal	citation	omittedሻ.	

		 To	 be	 sure,	 the	 thoroughness	 of	 an	 expert’s	 investigation	 may	 play	 a	 role	 in	

determining	if	the	opinion’s	methodology	is	reliable;	however,	the	Court	does	not	make	this	

judgment	 in	 a	 vacuum.	 Expert	 testimony	 is	 admissible	 “if	 it	 concerns	 matters	 that	 are	

beyond	 the	 understanding	 of	 the	 average	 lay	 person.”	 Whelan,	 976	 F.	 Supp.	 2d	 at	 1332	

ሺinternal	quotation	omittedሻ.	Expert	testimony	is	properly	excluded	when	it	is	not	needed	

to	clarify	facts	and	issues	of	common	understanding	that	jurors	are	able	to	comprehend	for	

themselves.	Id.	ሺinternal	quotation	omittedሻ.	Proffered	expert	testimony	generally	will	not	

help	 the	 trier	 of	 fact	 when	 it	 offers	 nothing	 more	 than	 what	 lawyers	 for	 the	 parties	 can	

argue	in	closing	arguments.	Cook	ex	rel.	Estate	of	Tessier	v.	Sheriff	of	Monroe	Cty.,	Fla.,	402	

F.3d	1092,	1111	ሺ11th	Cir.	2005ሻ.	

	 The	party	proffering	the	expert	has	the	burden	of	“laying	the	proper	foundation	for	

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the	 admission	 of	 the	 expert	 testimony	 ...	 and	 admissibility	 must	 be	 shown	 by	 a	

preponderance	of	the	evidence.”	Allison	v.	McGhan	Med.	Corp.,	184	F.3d	1300,	1306	ሺ11th	

Cir.	 1999ሻ	Expert	 testimony	must	 be	 “based	 on	 sufficient	 facts	or	 data”	 to	 be	admissible.	

Fed.	R.	Evid.	702.	The	facts	or	data	must	be	“of	a	type	reasonably	relied	upon	by	experts	in	

the	particular	 field	in	 forming	opinions	or	inferences	upon	 the	subject.”	Fed.	R.	Evid.	703.	

Because	experts	can	 “opine	about	a	complicated	matter	without	any	 firsthand	knowledge	

of	the	facts	in	the	case,”	the	trial	court’s	gatekeeping	role	is	“especially	significant.”	Frazier,	

387	F.3d	at	1260;	see	also Daubert,	509	U.S.	at	592	ሺfinding	that	expert’s	“wide	latitude	to	

offer	opinions”	is	“premised	on	an	assumption	that	the	expert’s	opinion	will	have	a	reliable	

basis	in	the	knowledge	and	experience	of	his	discipline.”ሻ.	

		 Nevertheless,	 mistakes,	 defects,	 omissions,	 problems,	 and	 weaknesses	 with	 an	

expert’s	opinion	do	not	necessarily	mean	that	it	must	be	excluded.	To	the	contrary,	many	

challenges	to	expert	testimony	ultimately	can	be	viewed	as	an	attack	on	the	weight	of	the	

expert’s	 opinions,	 which	 can	 be	 addressed	 at	 trial	 through	 vigorous	 cross‐examination.	

Holiday	Inns,	Inc.	v.	Holiday	Out	in	Am.,	481	F.2d	445,	447	ሺ5th	Cir.	1973ሻ	ሺ“format	of	the	

questions	and	the	manner	of	conducting	the	survey”	go	to	“the	weight	of	ሾtheሿ	evidence”ሻ;	

see Pods	Enters.,	Inc.	v.	U‐Haul	Int’l,	Inc.,	12‐01479,	2014	WL	2625297,	at	*	*2‐3	ሺM.D.	Fla.	

June	 12,	 2014ሻ	 ሺ“improper	 universe”	 and	 “improper	 questioning”	 were	 “technical	

deficiencies”	 that	 “go	 to	 the	 weight	 of	 ሾtheሿ	 opinions,	 not	 their	 admissibility”ሻ;	 Hoff	 v.	

Steiner	 Transocean,	 Ltd.,	 No.	 12‐22329,	 2014	WL	 273075,	 at	 *4	 ሺS.D.	 Fla.	 Jan.	 24,	 2014ሻ	

ሺ“As	long	as	a	reliable	basis	exists	for	the	expert’s	opinion,	it	is	admissible,	and	it	is	then	up	

to	the	parties	to	vet	the	opinion	before	the	jury.”ሻ;	Nightlight	Sys.,	Inc.	v.	Nitelites	Franchise	

Sys.,	 Inc.,	 No.	 1:04–CV–2112–CAP,	 2007	 WL	 4563873,	 at	 *7‐8	 ሺN.D.	 Ga.	 July	 17,	 2007ሻ	

ሺfinding	allegedly	flawed	survey	universe	and	question	formats	were	technical	deficiencies	

of	weight,	not	admissibilityሻ.	

		 “It	 is	 not	 the	 role	 of	 the	 district	 court	 to	 make	 ultimate	 conclusions	 as	 to	 the	

persuasiveness	of	 the	proffered	evidence.”	Quiet	Tech.	DC–8,	326	F.3d	at	1341;	Maiz,	253	

F.3d	at	666	ሺ“A	district	court’s	gatekeeper	role	under	Daubert	‘is	not	intended	to	supplant	

the	adversary	system	or	the	role	of	the	jury.’	”ሻ	ሺquoting	Allison.,	184	F.3d	at	1311ሻ.	Thus,	

the	 district	 court	 cannot	 exclude	 an	 expert	 because	 it	 believes	 the	 expert	 lacks	 personal	

credibility.	 Rink,	 400	 F.3d	 at	 1293	 n.7.	 To	 the	 contrary,	 “vigorous	 cross‐examination,	

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presentation	of	contrary	evidence,	and	careful	instruction	on	 the	burden	of	proof	are	 the	

traditional	and	appropriate	means	of	attacking	shaky	but	admissible	evidence.”	Quiet	Tech.	

DC–8,	326	F.3d	at	1341	ሺquoting	Daubert,	509	U.S.	at	596ሻ.	

	 i.		 Dr.	Inwood:	Liability	Methodology:	Tested,	Proven	and	Generally	Accepted.	

	 The	 methodology	 of	 Dr.	 Inwood’s	 opinions	 can	 100%	 be	 tested	 and	 is	 well	

recognized	in	 our	medical	 community.	 	His	liability	 opinions	 ሺand	 causation	 opinions	 for	

that	matter	which	are	discussed	in	detail	belowሻ	are	clear	and	concise.	The	gravamen	of	his	

clear	 opinions	 is	 that	 more	 likely	 than	 not	 and	 within	 a	 reasonable	 degree	 of	 medical	

probability	 CHI	 deviated	 the	 standard	 or	 care	 in	 the	 bullet	 points	 below,	 and	 that	 the	

deviations	 created	 a	 six	 day	 delay	 which	 caused	 or	 substantially	 contributed	 to	 Mr.	

Hernandez	having	to	undergo	a	leg	amputation.	

1. Failure	to	appreciate	the	significance	of	his	acute	infection;	

2. Failure	to	order	a	plain	film	to	rule	out	any	foreign	bodies	or	Osteomyelitis;	

3. Failure	to	obtain	STAT	blood	work;		

4. Failure	to	order	the	proper	antibiotics;	and		

5. Most	importantly,	failure	to	review	the	abnormal	A1C	test	result	and	then	refer	Mr.	

Hernandez	to	an	emergency	room	that	day.		

	 He	generated	a	 very	 detailed	 report	in	 full	 compliance	with	Rule	 26,	and	 sat	 from	

1:30	PM	to	7:11	PM	 for	a	225	page	marathon	deposition.	There	is	absolutely	no	hiding	of	

the	 ball	 here,	 there	 is	 no	 confusion	 with	 his	 clear	 opinions	 and	 there	 are	 certainly	 no	

surprises	 about	 his	 opinions.	 The	 major	 opinion	 regarding	 the	 liability	 is	 derived	 and	

supported	 by	 a	 clear	 undisputed	 concession	 from	 Defendant	 ARNP	 Menberu	 and	 peer	

review	articles.		

ii.		 Undisputed	Damaging	Smoking	Gun	testimony:	

	 This	 damaging	 concession	 surrounds	 the	issue	 regarding	if	Mr.	Hernandez	 should	

have	been	sent	to	an	ER	on	January	15,	2019.	All	Dr.	Inwood	needed	to	review	in	order	to	

form	this	liability	opinion	were	the	CHI	records	ሾEx.	10ሿ	and	the	deposition	of	Dr.	Menberu.	

ሾEx.	16ሿ	He	already	had	a	vast	understanding	through	his	training/experience/knowledge	

dealing	with	this	common	infection	and	from	articles	and	reference	guides	regarding	how	

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to	 treat	 Cellulitis,	 and	 the	 urgency	 behind	 Cellulitis	 when	 dealing	 with	 a	 diabetic.	 Mr.	

Menberu	admitted	in	his	deposition	that	he	did	not	review	the	A1C,	and	if	he	did,	he	would	

have	sent	Mr.	Hernandez	to	the	ER	immediately.		

	ሾEx.	16ሿ.Page	47	Lines	17‐25:	

	 17	Q.	So,	it's	your	testimony	that	you	didn't	

	 18	know	he	had	an	a1c	of	6.6.	Right?	

	 19	A.	I	don't	remember	seeing	that	result,	yes.

	 20	Q.	If	you	saw	that	what	would	you	have	done	

	 21	that	day?	

	 22	A.	Well,	basically,	it's	the	first	time	I	

	 23	see	it	was	a	6.C	‐‐	6.6.	He's	not	taking	any	

	 24	medication.	I	would	advise	him	that	he	is	‐‐	with	

	 25	one	reading	of	6.6	he's	diabetic,	and	probably	

Page	48	Lines	1‐11:	

	 1	since	it's	a	high	risk	of	being	a	diabetic,	

	 2	probably	I'll	send	him	to	the	emergency	room.	

	 3	Q.	The	last	part	I	didn't	catch.	I	heard	

	 4	everything	you	said	other	than	the	last	part.	

5	A.	If	I	had	seen	that	result	I	probably	

	 6	would	have	sent	him	to	the	emergency	room	to	be	

	 7	evaluated.	

	 8	Q.	Right.	You	send	him	to	an	

	 9	endocrinologist.	Right?	

	 10	A.	No,	emergency	room.	There's	no	‐‐	to	be	

	 11	seen	right	away.	

Page	49	Lines	2‐9:	

	 2	Do	you	just	tell	him	that	or	would	you	

	 3	like	write	a	referral	for	him	to	go	to	the	ER	or	

	 4	you'd	just	say	go	to	the	ER?	

	 5	A.	No,	no,	no,	if	he	‐‐	yes.	Like	I	said,	

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	 6	this	is	the	first	time	I	am	seeing	this	patient	

	 7	but	if	I	see	6.6	I	probably	would	refer	him	to	go	

	 8	to	the	emergency	room.	

	 	

	 This	 is	 an	 undisputed	 concession.	 Now	 faced	 with	 this	 damaging	 testimony,	 the	

defense	is	 trying	 to	 twist	 the	ARNP’s	 clear	 testimony	 and	 try	 to	 convince	 this	 Court	 that	

sending	 him	 to	 the	 ER	would	 be	“above	and	 beyond	 the	 standard	 of	 care,”	and	 the	ARNP	

only	 has	 a	 duty	 to	 meet	 the	 standard	 or	 care,	 not	 exceed	 it.	 This	 novel	 approach	 is	

misplaced	and	is	an	attempt	 to	overcome	damaging	 testimony	 regarding	 this	standard	of	

care	 concession	 made	 by	 the	 Defendant	 ARNP.	 Furthermore	 it	 goes	 directly	 against	 the	

grain	of	peer	review	articles	that	speak	about	this	liability	issue.	

	 iii.	 Articles	Supporting	Methodology	of	Liability	Opinions.	

	 Below	is	an	in	depth	review	of	these	articles	in	order	to	satisfy	the	liability	elements	

of	Daubert.	The	 Infectious	Diseases	Society	of	America	ሺIDSAሻ	published	an	article	 that	is	

exactly	on	point	for	our	allegations	and	defenses	in	this	case. When	should	hospitalization	

of	a	patient	with	Cellulitis	be	considered?	ሾEx.	1ሿ	

	 You	cannot	get	any	more	on	point	then	this.	The	article	clearly	states	that	the	IDSA	

also	recommends	inpatient	admission	 for	 the	 following	patients	with	Cellulitis.	Mind	you,	

this	 does	 not	 even	 take	 into	 consideration	 a	 diabetic	 patient,	 which	 you	 must	 make	 an	

immediate	 referral,	 just	 like	 ARNP	 Menberu	 testified	 to	 in	 his	 deposition.	 In	 this	 article,	

they	document	the	key	lab	results	that	would	warrant	immediate	inpatient	admission.		

	 One	 of	Dr.	 Inwood’s	major	 criticisms	is	 that	 CHI	 failed	 to	 secure	 blood	 work	 on	 a	

STAT	 basis.	 In	 fact,	 when	 the	 blood	 was	 finally	 drawn,	 and	 the	 results	 came	 back,	 Mr.	

Hernandez	had	the	left	shift,	and	had	the	elevated	Creatinine	IDSA	speaks	about.	ሾEx.	10ሿ

	 Diabetes	Care:	Trends	in	Rates	of	Infections	Requiring	Hospitalization	Among	Adults	

With	Versus	Without	Diabetes	in	the	U.S.,	2000–2015.	ሾEx.	2ሿ	This	article	speaks	about	how	

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the	rate	 for	hospitalizations	 for	Diabetic	patients	with	infections	is	almost	4	 times	higher	

than	non‐diabetic	patients.	 It	also	speaks	about	 the	need	 for	greater	infectious	mitigation	

management	with	adults	with	diabetes.	The	article	goes	on	to	specifically	speak	about	the	

alarming	increase	in	hospitalizations	for	skin	and	soft	tissue	infections	like	Cellulitis.	

	 IDSA:	 Increasing	 Incidence,	 Cost,	 and	 Seasonality	 in	 Patients	 Hospitalized	 for	

Cellulitis:	ሾEx.	3ሿ	Again,	another	wonderful	article	published	by	the	IDSA	that	speaks	about	

how	the	hospitalization	rates	for	Cellulitis	in	diabetics	have	increased	at	a	huge	rate.	This	is	

because	 the	outpatient	providers	realize	 the	need	 for	ASAP	inpatient	 treatment,	and	how	

this	significantly	reduces	the	chance	for	complications	like	Osteomyelitis	and	amputations.	

	 Diabetic	 foot	infections	ሺDFIሻ:	current	concept	review.	 ሾEx.	4ሿ	This	is	 right	on	point	

about	 the	evaluation	 of	a	 diabetic	 foot	infection	 ሺDBIሻ,	what	 classifies	it	according	 to	 the	

IDSA	and	what	is	the	treatment.	It	further	discusses	why	prompt	recognition	and	treatment	

of	 DFI	 is	 mandatory	 to	 achieve	 a	 goal	 of	 maximal	 limb	 salvage.	Again,	 this	 is	 exactly	 on	

point	regarding	the	opinions	rendered	by	Dr.	Inwood.	

	 In	conclusion,	not	only	are	there	countless	other	peer	review	articles	regarding	how	

to	 treat	 Cellulitis	 and	 how	 it	 is	 an	 emergent	 condition	 that	 requires	 ER	 attention	 when	

dealing	with	a	diabetic,	the	Defendants	main	witness	who	was	the	one	making	the	medical	

decisions	 that	 day	 admitted	 to	 the	 same	 exact	 standard	 or	 care	 about	 sending	 Mr.	

Hernandez	to	the	ER	and	which	Dr.	Inwood	testified	to,	and	which	these	articles	discuss.		

	 ii.		 Dr.	Inwood:	Causation	Methodology:	Tested,	Proven	and	Generally	Accepted.

	 Again,	we	will	go	over	the	countless	peer	review	articles,	and	reference	publications,	

regarding	what	are	 the	outcomes	of	diabetic	Cellulitis	if	left	untreated	and/or	not	treated	

appropriately.	ሺi.e.	leads	to	irreversible	Osteomyelitis	and	amputationሻ.		

	 The	 Defense	 is	 trying	 to	 breeze	 over	 all	 this	 with	 a	 misplaced	 argument	 that	 Dr.	

Inwood	cannot	provide	credible	and	reliable	opinions	because	he	did	not	review	all	7,000	

൅	documents	 that	are	in	 this	case.	This	is	a	giant	red	hearing.	The	 fact	of	the	matter	is	all	

that	 Dr.	 Inwood	 needed	 to	 review	 outside	 of	 his	 extensive	 experience,	 training	 and	

knowledge	 of	 articles	 regarding	Cellulitis	 were	 the	 few	 pages	 from	 the	 CHI	 clinic	ሾEx.10ሿ	

and	the	medical	records	from	Homestead	hospital.	ሾEx.	17ሿ	Dr.	Inwood	testified	clearly	that	

he	had	what	he	needed	in	 terms	of	production	of	documents	 to	support	his	opinions	and	

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assist	the	Court	with	the	medicine.	He	did	not	review	depositions	or	documents	regarding	

the	 several	 red	 herring	 issues	 raised	 by	 the	 Defendant	 as	 those	 documents	 had	 zero	

relevancy	or	value	in	assisting	him	in	rendering	opinions	that	would	ultimately	assist	this	

Court	regarding	medical	opinions	about	acute	Cellulitis.	

	 iii.	 Articles	Supporting	Methodology	of	Causation	Opinions.	

	 A	few	of	leading	organizations	that	have	published	uncountable	peer	review	articles	

relating	to	Cellulitis	in	diabetic	patients	and	how	to	treat	them	to	prevent	leg	amputations	

are	below.	

1. The	Infectious	Diseases	Society	of	America,	ሺIDSAሻ.	

2. The	Journal	of	Diabetic	Foot	Compilations	ሺJDFCሻ	

3. Diabetes	Care	

4. The	National	Institute	for	Health	and	Care	Excellence	ሺNIHCEሻ	

5. American	Family	Physician	ሺAFPሻ	

6. American	Diabetes	Association	ሺADAሻ	

	 The	IDSA	also	speaks	about	the	inpatient	management	that	would	be	provided	to	try	

and	prevent	a	complication	like	Osteomyelitis	and	an	amputation.	 It	is	undisputed	 that	if	

Mr.	Menberu	would	have	reviewed	the	A1C	test,	he	would	have	sent	Mr.	Hernandez	to	the	

ER.	 Looking	 at	 the	 medical	 records	 from	 Homestead	 hospital,	 and	 all	 the	 articles	 and	

publications	 about	 what	 care	 would	 have	 been	 given	 if	 he	 we	 referred	 to	 Homestead	

Hospital	 on	 January	 15,	 2019,	 it	 is	 also	 undisputed	 that	 he	 would	 have	 received	 the	

following	care	and	treatment	in	a	hospital	setting	starting	six	days	early.	

aሻ 24/7	close	motioning	of	his	foot.	

bሻ STAT	blood	work.	

cሻ Full	imaging	work	up.	

dሻ BS	control	with	medications.	

eሻ IV	antibiotics	to	prevent	Osteomyelitis.	

fሻ Culturing	to	identify	the	organism.	

gሻ Debridement’s	to	prevent	the	skin	infection	from	reaching	the	bone	and	remove	

dead	tissue.	

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hሻ Control	of	his	acute	renal	failure.	

	 The	above	facts	are	undisputed,	and	referenced	below	is	supports	the	same.		

Guidelines	for	inpatient	management. ሾEx.	1ሿ

	 Diabetic	Foot	 Infection.	 ሾEx.5ሿ	This	article	has	a	nice	algorithm	 that	discusses	what	

the	 care	 and	 treatment	 is	 for	 certain	 DFI,	 and	 how	 that	 treatment	 is	 crucial	 in	 order	 to	

avoid	an	amputation.	

	 Variation	in	antibiotic	 treatment	 for	diabetic	patients	with	serious	 foot	infections,	A	

retrospective	 observation	 study.	 ሾEx.	 6ሿ	 This	 is	 one	 of	 the	 largest	 inpatient	 studies	 that	

utilized	the	VA	diabetic	database	and	followed	the	IDSA	guidelines.	Again,	this	speaks	about	

optimal	 antibiotic	 therapy,	 imaging,	 wound	 management	 and	 hospitalizations	 to	 avoid	

major	complications	like	an	amputation.	

	 A	 new	 staging	 system	 for	 Cellulitis	 in	 diabetic	 lower‐limbs‐improving	 diabetic	 foot	

practice	 around	 the	 world.	 A	 very	 detailed	 article	 published	 by	 the	 respected	 Journal	 of	

Diabetic	 Foot	 Complications.	 They	 did	 a	 wonderful	 job	 of	 staging	 diabetic	 Cellulitis,	 and	

what	needs	to	be	done	to	manage	those	stages	to	avoid	amputation.	It	specifically	discusses	

on	 page	 51	 “that	 Stage	 1	DFI	is	medically	managed	 by	 hospitalization	 and	 IV	 antibiotics.	

Mind	you	Stage	1	is	the	least	aggressive	stage	of	Cellulitis,	ሺstage	5	is	worse	caseሻ	so	it	will	

be	hard	pressed	that	the	Defense	can	argue	Mr.	Hernandez	had	a	lower	stage	then	1.	

	 We	have	other	articles,	ሾEx.8	and	Ex.	9ሿ	but	due	to	the	fact	that	this	medical	issue	has	

been	 cemented	 in	 publications	 for	 decades,	 we	 believe	 we	 discussed	 more	 than	 enough	

information	to	meet	our	burden.	

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	 So	 simply	 stated,	 Dr,	 Inwood	 said,	 more	 likely	 than	 not	 and	 within	 a	 reasonable	

degree	 of	 probability,	 if	 CHI	 sent	 Mr.	 Hernandez	 to	 the	 ER	 like	 ARNP	 Menberu	 said	 he	

would	 have	 done,	 Mr.	 Hernandez	 would	 have	 started	 to	 receive	 all	 this	 medical	

management	as	stated	above	six	days	earlier	than	he	did,	and	that	management	more	likely	

then	not	would	have	prevented	the	foot	amputation.	This	is	supported	by	real	life	medicine,	

and	 the	 countless	 articles	 and	 reference	 publication	 about	 inpatient	 management	 of	 this	

exact	condition.	When	reviewing	all	 the	evidence	presented	in	 this	response,	we	strongly	

contend	 that	 it	 is	 clear	 that	 Dr.	 Inwood	 has	 the	 training	 and	 education	 to	 opine	 on	

causation,	and	has	 the	proper	knowledge	regarding	 the	outcome	of	Cellulitis	in	a	diabetic	

patient,	and	how	leg	amputations	can	be	prevented	in	a	diabetic	if	one	can	avoid	needless	

delay	or	inappropriate	treatment.	

VI.		 Conclusion	

	 We	 strongly	 contend	 that	 when	 reviewing	 all	 the	 facts	 in	 this	 case,	 the	 sworn	

testimony	of	Dr.	Inwood	and	the	plethora	of	peer	review	articles	and	reference	publications	

about	liability	and	causation	surrounding	Cellulitis	and	amputations,	the	Defendant	has	not	

proven	 all	 the	 necessary	 elements	 to	 strike	Dr.	 Inwood	 under	Daubert	and	 that	we	 have

met	our	burden	in	proving	that	his	opinions	satisfy	the	elements	of	Daubert.		

	 WHEREFORE,	we	 respectfully	ask	 this	Court	 to	DENY	 the	Defendants	motion	with	

prejudice.	

Case 1:20-cv-21885-MGC Document 50 Entered on FLSD Docket 05/07/2021 Page 15 of 16
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	 Date:	May	7,	2021	 	 	 			Respectfully	submitted,	

				

/s/	Christopher	S.	Russomanno	

CHRISTOPHER	S.	RUSSOMANNO	

RUSSOMANNO	&	BORRELLO,	P.A.	

Museum	Tower	–	Penthouse	2800		

150	West	Flagler	Street	

Miami,	Florida	33130	

Telephone:	ሺ305ሻ	373‐2101	

Facsimile:	ሺ305ሻ	373‐2103	

Christopher	S.	Russomanno	

Fla.	Bar	No.	14657	

Email:	chris@russomanno.com

Counsel	for	Plaintiff	Antonio	Hernandez

	

CERTIFICATE	OF	SERVICE	

	 I	 hereby	 certify	 that	 on	May	 7,	 2021,	 I	electronically	 filed	 the	 foregoing	 document	

with	 the	Clerk	of	Court	using	CM/ECF.	 I	also	certify	 that	 the	 foregoing	document	is	being	

served	this	day	on	any	and	all	counsel	of	record	or	pro	se	parties	in	the	manner	specified,	

either	 via	 transmission	 of	 Notices	 of	 Electronic	 Filing	 generated	 by	 CM/ECF	 or	 in	 some	

other	 authorized	manner	 for	 those	 counsel	 or	 parties	 who	 are	 not	 authorized	 to	 receive	

electronically	Notices	of	Electronic	Filing.		

/s/	Christopher	S.	Russomanno	

Case 1:20-cv-21885-MGC Document 50 Entered on FLSD Docket 05/07/2021 Page 16 of 16