Party Discovery: Joe Carl Rogers, et al Plaintiff vs. Certainteed Corporation Defendant

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                                Filing # 129339043 E-Filed 06/23/2021 01:01:57 PM
 IN THE CIRCUIT COURT OF THE 17TH
 JUDICIAL CIRCUIT, IN AND FOR
 BROWARD COUNTY, FLORIDA
 JOE CARL ROGERS and
 HILDA ROGERS, his wife,
 GENERAL JURISDICTION DIVISION
 CASE NO.: CACE-19-025692
 Plaintiffs,
 V
 ACOUSTI ENGINEERING COMPANY
 OF FLORIDA; et al.
 Defendants.
 DEFENDANT J-M MANUFACTURINGCOMPANY. INC.'S MOTION IN LIMINETO
 PRECLUDE THE USE OF DEPOSITIONAND TRIAL TESTIMONY TAKEN IN
 CASES IN WHICH J-M MANUFACTURINGCOMPANY. INC. WAS NOT A PARTY
 (J-MM Motion in Limine No. 5)
 NOW COMES Defendant,J-M MANUFACTURING COMPANY, INC., (hereinafteralso
 referred to as "J-MM" or "Defendant"), and hereby moves to preclude the use by Plaintiffs of
 prior deposition or trial testimony in cases in which J-MM was not a party at the time such
 testimony was given. The use of such transcriptswould be unfairly prejudicial because J- MM
 had no opportunity to cross-examinethe witnesses.
 I.
 Background
 Plaintiffs allege that Plaintiff, Joe Carl Rogers, was exposed to asbestos from many
 different types of products throughout his work life. Plaintiffs have or may certify testimony
 from their experts, other lay witnesses and/or individuals in numerous deposition and trial
 transcripts from previous cases in which J-MM was not a party, or attempt to elicit testimony
 from these experts, other lay witnesses and/or individualsat trial that their testimony would be
 consistent with the testimony found in these prior transcripts. Use or, or reference to, such
 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/23/2021 01:01:56 PM.****
 prior testimony or deposition transcriptsis improper and impermissible.
 II.
 Argument
 Plaintiffs should not be permitted to offer any of the certified transcripts in lieu of
 calling respective experts, other lay witnesses and/or individuals at trial for the purpose of
 offering testimony given in cases in which J-MM was not a party at the time the testimony was
 previously given. The use of such transcripts against J-MM would be unfairly prejudicial
 because J-MM wasnot afforded the opportunity to cross-examine any such experts and other
 lay witnesses and/or individuals. Thus, the use of such transcripts would represent
 unchallenged testimony against J- MM, which may lead the jury to erroneouslyassume that J-
 MM was unable to refute the profferedtestimony.
 Florida Rule of Civil Procedure 1.330(a) provides that a deposition may be used as
 direct evidence against a party only if the party was present or represented at the taking of the
 deposition. Likewise, Florida Statute Section 90.803(22) states former testimony of a witness
 may only be used against a party if the party or predecessor in interest had an opportunity to
 develop the testimony by examination. In addition, Florida courts consistently hold that a
 party's absolute right to cross-examine adverse witnesses serves an integral role in satisfying
 the constitutional requirements of procedural due process. See Coxwell v. State, 361 So. 2d
 148 (Fla. 1978); Fictorino v. State, 127 So. 3d 478 (Fla. 2013). Further, use of deposition
 testimony in other matters would constitute inadmissible hearsay in violation of Florida Statute
 Section 90.802, and/or would constitute improper bolstering of the witness in violation of
 Florida Statute Section 90.804(2)(a); see also Howard v. State, 151 So. 3d %15 (Fla. 2d DCA
 2014); Rodriguez v. State, 609 So. 2d 493 (Fla. 1992); C. Ehrhardt, Florida Evidence § 801.8
 (2020 Edition).
 WHEREFORE, J-MM respectfully requests that the Court grant its Motion in Limine to
 preclude the use of prior deposition or trial testimony given by witnesses and/or individuals in
 cases in which J-MM was not a party.
 CERTIFICATE OF SERVICE
 I HEREBY CERTIFY that on June 23, 2021, I electronically filed the foregoing with the
 Clerk of the Courts by using the Florida Courts eFiling Portal which will provide notice to all
 Counsel of Record.
 Is/Jeffreyw.Kirsheman
 JEFFREY W. KIRSHEMAN, ESQUIRE
 Florida Bar No. 0059341
 Fisher Rushmer, P.A.
 Post Office Box 3753
 Orlando, FL 32802-3753
 Tel: 407-843-2111 / Fax: 407-422-1080
 com
 com
 Attorneys for Defendant, J-M Manufacturing
 Company, Inc.