Preview
Filing # 138343955 E-Filed 11/11/2021 10:41:55 AM
IN THE COUNTY COURT IN AND FOR
MIAMI-DADE COUNTY FLORIDA
CASE NO. 21-009772-cc-21
THE RIGHT SPINAL CLINIC, INC.
A/A/O (HERNANDEZ, LOIDA) ,
Plaintiff,
vs.
GEICO GENERAL INS. CO.,
Defendant.
_________________________________/
______________________________________________________________________________
PLAINTIFF’S FIRST MOTION IN LIMINE
______________________________________________________________________________
COMES NOW, the Plaintiff, The Right Spinal Clinic, Inc a/a/o Hernandez,Loida, by and
through undersigned counsel, and files this Motion in Limine regarding the general allegations,
certain records, and remarks, and as grounds therefore states as follows:
1. The Plaintiff has filed suit against the Defendant for PIP benefits. The Plaintiff
anticipates that the Defendant will attempt to elicit and make prohibited general
allegations and remarks during the trial. The primary purpose of a Motion in Limine is to
prevent prejudice at the time of trial that cannot be corrected, and which would result in a
party not receiving a fair trial. The Court has the authority to issue a preliminary ruling
on the admissibility of evidence. The decision to do so is vested in the sound discretion of
the Court. The Court’s decision will not be overturned on appeal absent a showing of a
Plaintiff’s First Motion in Limine |1
clear abuse of discretion. These motions are designed to simplify the trial, avoid side
bars, and avoid prejudice that often occurs when a party is forced to object in the front of
the jury to the introduction of evidence.
2. The Plaintiff hereby moves to preclude the Defendant, the Defendant’s attorney or the
Defendant’s witnesses from directly or indirectly making any such reference or inference
regarding any of the following:
3. Any reference to “crowded courtrooms” or identifying, either directly or implicitly, this
case as being the type of case that causes delays or backlogs in the court systems. Stokes
v. Wet’n Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988); Levinson v. State Farm Mutual
Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002).
4. Any mention that the effect or results of a claim, suit, or judgment upon insurance rates,
premiums, or charges, either generally or as particularly, to Defendant or its insured, as a
result of this lawsuit or any other lawsuit. Davidoff v. Segret, 551 So. 2d 1274 (Fla. 4th
DCA 1989); Russel v. Guider, 362 So.2d 55 (Fla. 4th DCA 1978).
5. Any mention or reference to an “insurance crisis”. Davidoff v. Segret, 551 So. 2d 1274
(Fla. 4th DCA 1989), Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly
Supp. 721 (Fla. Broward Cty Court 2002).
6. That if Defendant’s expert is permitted to testify, he/she should not be permitted to
express his/her opinions as to the Plaintiff’s experts. It is improper to impeach an expert
witness by eliciting from another expert witness what he/she thinks of that expert.
Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977); Ecker v. Nashville Roofing of
Miami, Inc., 201 So. 2d 586 (Fla. 3rd DCA 1967). See also Dungan v. Ford, 632 So. 2d
Plaintiff’s First Motion in Limine |2
159 (Fla. 1st DCA 1994) (improper to allow expert to testify on lack of skill or judgment
and poor results achieved by a treating physician), Levinson v. State Farm Mutual Auto.
Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002); Carver v. Orange
County, 444 So. 2d 452 (Fla. 5th DCA 1983) (error to permit expert witness to impeach
another expert witness by asking first expert witness as to second expert’s ability). It is
improper to impeach an expert witness by eliciting from another expert witness what he
thinks of that expert. Ecker v. Nashville Roofing of Miami, Inc., 201 So. 2d 586 (Fla. 3rd
DCA 1967). In Enterprise Leasing v. Sosa, 907 So. 2d 1239 (Fla. 3d DCA 2005) the
Court held the trial court correctly precluded an expert from commenting on the
sufficiency or credibility of the Plaintiff’s evidence, from speaking about the Plaintiff’s
evidence and from commenting on the weight and sufficiency of the Plaintiff’s
testimony.
7. That if Defendant’s expert is permitted to testify, he/she should not be permitted to
reference any opinions not contained in the report or answers to expert Interrogatories.
This would be trial by ambush, “surprise in fact,” and unfair surprise. See Binger v. King
Pest Control, 401 So. 2d 1310 (Fla. 1981); Suarez-Burgos v. Morhaim, 745 So. 2d 368
(Fla. 4th DCA 1999). Pipkin v. Hamer, 501 So. 2d 1365 (Fla. 4th DCA 1987); Scarlett v.
Ouellette, 948 So. 2d 859 (Fla. 3d DCA 2007); Gonzalez v. State of Florida, 777 So. 2d
1068 (Fla. 3d DCA 1068); Carver v. Orange County, 444 So. 2d 452 (Fla. 5th DCA 1983)
(error to permit expert witness to impeach another expert witness by asking first expert
witness as to second expert’s ability). The Plaintiff was under no obligation to depose the
Defendant’s expert. See Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA
Plaintiff’s First Motion in Limine |3
1999). The Plaintiffs has a right to know, and the Defendant has the duty to inform the
Plaintiff of its opinions in advance of the trial. The Plaintiff would be prejudiced if there
are any new opinions generated at the time of trial. The Plaintiff would not be able to
prepare, in advance of the trial, for any new opinions. The Plaintiff generated expert
witness interrogatories and the Plaintiff should be able to rely on the opinions contained
therein are the final opinions.
8. The Defendant’s attorney, experts and/or witnesses should be limited from stating
personal opinions about the Plaintiff, or the patient, or about the merits of the claim. See
Wasten v. Seaboard Coast Line R.R. Co., 474 So. 2d 825 (Fla. 2nd DCA 1985) (error to
state personal opinions about the merits of the case or credibility of the Plaintiff). rev.
den., 484 So. 2d 9 (Fla. 1986). See also Moore v. Taylor Concrete & Supply Co., Inc.,
553 So. 2d 787 (Fla. 1st DCA 1989); Blue Grass Shows, Inc. v. Collins, 614 So.2d 626
(Fla. 1st DCA 1993); Nelson v. Reliance Ins. Co., 368 So. 2d 361 (Fla. 4th DCA 1978);
Riley v. Willis, 585 So.2d 676 (Fla. 1st DCA 1995). Cf., Feller v. State, 637 So. 2d 911
(Fla. 1994) (error for expert to state belief that victim was telling the truth); Tingle v.
State, 536 So. 2d 202 (Fla. 1989) (error to commit expert to testify she believed victim.);
Hitchcock v. State, 636 So. 2d 572 (Fla. 4th DCA 1994); Davis v. State, 527 So. 2d 962
(Fla. 5th DCA 1988) (error to permit expert to testify the victim was frank); SDG
Dadeland v. Anthony, 33 Florida Law Weekly D507 (Fla. 3d DCA 2008). A trial is no
place for an attorney’s personal opinions and any opinions would violate the Florida Bar
rules.
Plaintiff’s First Motion in Limine |4
9. The Plaintiff hereby moves to preclude the Defendant, the Defendant’s attorney or the
Defendant’s witnesses from directly or indirectly making any reference concerning fraud
or any newspaper articles or grand jury reports as these issues are a matter to be decided
by this case. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721
(Fla. Broward Cty Court 2002). This case involves a PIP suit over the Defendant’s failure
to pay medical expenses pursuant to Florida law and the terms and conditions of the
policy of insurance. The Defendant has not pled any affirmative defense relating to fraud
of any kind or listed any exhibit or witness with information concerning fraud. Any
discussion about fraud of any kind, the possibility of fraud or the prevention of fraud will
be unduly prejudicial and outside the scope of these pleadings.
10. The Plaintiff seeks an Order of the Court precluding the Defendant, the Defendant’s
counsel, or any of the witnesses from informing the jury the doctor’s hired by the
Defendant were “independent”. The doctors are not independent. The defendant’s doctors
were hired by the defense and paid by the defense. See U.S. Security v. Cimino, 754 So.
2d 697 (Fla. 2000); Allstate v. Boecher, 733 So. 2d 993 (Fla. 1999, footnote 4); Jeremie
v. Carey, 16 Florida Law Weekly Supp. 740 (Fla. Palm Beach Cir. Court 2009) (defense
doctor will not be referred to as independent or as an IME); Nguyen v. State Farm, 9 Fla.
L. Weekly Supp. 305 (Fla. Palm Beach Cir. Court 2002). If the jury hears the doctors are
“independent” the jury may be confused into believing or thinking the doctors were
appointed by this court, the county, a governing body, or with the approval of the
Plaintiff or the Plaintiff’s attorney. The Defendant should refer its doctors as defense
witnesses. See also Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly
Plaintiff’s First Motion in Limine |5
Supp. 721 (Fla. Broward Cty Court 2002); Arbogast v. Barlow, 11 Florida L. Weekly
Supp. 119 (Fla. Broward Cir. Court 2003) (in a 3rd party case the Court ruled the doctor
hired by the insurance company cannot be referred to as “independent”). See also
McGarrah v. Bayfront, 889 So. 2d 923 (Fla. 2d DCA) where the Court referred to the
exam as a compulsory medical examination. See Florida Rule of Civil Procedure
1.360(c), Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 996 footnote 4 (Fla. 1999); and
Broward County v. Cento, 611 So. 2d 1339 (Fla. 4th DCA 1993).
11. The Plaintiff seeks an order precluding any evidence about any information contained in
any police reports, statements made to the police, to preclude the placing of the police
report in evidence from either the Defendant, the Defendant’s experts, or the Defendant’s
attorney and to ask the insured or the patient why he/she does not appear on the police
report.
12. There should be no questions as to what the patient or the insured did or did not do in
relation to the police report.
13. The Plaintiff also seeks an order precluding the raising or asking about the amount of
property damage the patient’s vehicle sustained in the accident. There is no correlation
between property damages in an automobile and the amount of injuries. There has been
no expert witness who are qualified to discuss this issue and any reference to the amount
of property damage will be unduly prejudicial.
14. The Plaintiff also seeks an order precluding the raising or asking about any financial
motives the medical provider may have had in prescribing treatment or ordering
diagnostic tests as there is no evidence the Plaintiff was financially motivated to order
Plaintiff’s First Motion in Limine |6
any tests. Any reference to this type of motivation would be extremely prejudicial and
this issue should not be raised in any capacity. See Diagnostic Neurology Group, Inc. v.
Allstate, 5 Fla. L. Weekly Supp. 134 (Fla. 9th Cir. Court 1997).
15. The Plaintiff seeks to exclude any amount previously paid by the Defendant as it is
unrelated to the bills that are at issue and it will serve only to prejudice the jury.
16. Defendant shall be prohibited from making any mention, comment, reference, suggestion
or question regarding anything suspicious about the accident. Levinson v. State Farm
Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002).
17. Defendant shall be prohibited from making any mention, comment, reference, suggestion
or question that the type of impact involved in this case would not produce injury.
Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward
Cty Court 2002).
18. Defendant shall be prohibited from making any mention, comment, reference, suggestion
or question to anything that was said by anyone at the scene of the accident during the
accident investigation. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly
Supp. 721 (Fla. Broward Cty Court 2002).
19. Defendant shall be prohibited from making any mention, comment, reference, suggestion
or question to the financial status of the Plaintiff. Levinson v. State Farm Mutual Auto.
Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002).
20. Defendant shall be prohibited from making any mention, comment, reference, suggestion
or question of the opinion of any adjuster of Defendant or the opinion any witness
appearing on behalf of Defendant as to the validity or the lack of validity of the Plaintiff's
Plaintiff’s First Motion in Limine |7
claim. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla.
Broward Cty Court 2002).
21. Defendant should be prohibited from making any mention, comment, reference,
suggestion or question of other patients of the treating physicians of Plaintiff. Levinson v.
State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court
2002).
22. The Defendant should be precluded from making any comment or reference to their
alleged motive to reduce or deny payments in order to preserve benefits for the insured.
Since the Defendant has not provided the Plaintiff with any evidence as to how much
money the Defendant has saved by not paying claims or reducing payments of claims.
Since the Defendant has not produced this information the Plaintiff has been prejudiced
by its inability to effectively cross examine the Defendant as to this argument. Judge Pratt
in the case of Dr. Pollak a/a/o Cino v. Progressive, 02-009602 COCE 56 (Fla. Broward
County Court 2002) entered an order to this effect on November 14, 2002.
23. The Defendant should also be precluded from mentioning or informing the Court what
they attempted to pay, at the time of trial. The Plaintiff has the burden of proof and under
Florida law any amounts paid by the Defendant would be irrelevant and confusing to the
jury. The Court will not instruct the jury to consider what the Defendant paid in
determining whether the Plaintiff’s bill is related or necessary and it should not be
introduced by the Court. The jury will get confused as the amount offered by the
Defendant may very well be reasonable but what the Defendant did or did not do is not
the issue in the case and it will only serve to confuse the jury.
Plaintiff’s First Motion in Limine |8
24. The Defendant should be precluded from raising any additional defenses, legal issues, or
claim the bills have not been lawfully rendered as these issues have not been raised. The
Plaintiff is entitled to rely on the pretrial stipulation and any new defenses should be
deemed waived. See Cooke v. Insurance Co. of North America, 652 So. 2d 1154 (Fla. 2d
DCA 1995). The Plaintiff will be prejudiced as it will be unable to prepare for any new
legal arguments at the time of trial. “Where a defendant fails to provide an answer or
responsive pleading he waives defenses that could have been raised in those pleadings”
Chillemi v. Rorabeck, 629 So. 2d 206 (Fla. 4th DCA 1994). Furthermore, “All other
defenses are waived if not raised by motion or responsive pleading” J.A.B. Enterprises v.
Gibons, 596 So. 2d 1247 (4th DCA 1992), “[a]verments in a pleading to which a
responsive pleading is required are admitted when not denied in the responsive pleading”
Id,. at 1249, See also, Florida Rule of Civil Procedure 1.110(e). “In the absence of a
responsive pleading to a cross-claim which states a cause of action, the court, after notice
and a hearing may enter a default judgment” Fla.R.Civ.P. 1.500(b), See also National
Union Fire Ins. Co. of Pittsburg v. J.M. Pontiac, Inc., 571 So. 2d 512 (Fla. 3rd DCA
1990). Appellant argues, correctly, that subject to certain exceptions not applicable here,
affirmative defenses not alleged in the answer are deemed waived. Fla. R. Civ. P.
1.140(b) & (h). See Billo v. Benoit, 519 So.2d 1114 (Fla. 1st DCA 1988), Moreover,
nonperformance of a condition precedent must be plead “specifically and with
particularity, or it will be deemed waived,” as well. Fla. R. Civ. P. 1.120(c), Magnum v.
Susser, 764 So. 2d 653 (Fla. 1st DCA 2000).
Plaintiff’s First Motion in Limine |9
25. The Defendant should be precluded from discussing or introducing any exhibits not
previously raised or listed in the pretrial stipulation. The Plaintiff will be prejudiced by
being unable to fully evaluate any last minute exhibits.
26. The Defendant should be precluded from making any reference of the Plaintiff’s failure
to call any witness especially where such testimony would be cumulative or where said
witness would be equally available to the Defendant. Community Asphalt v. Bassols, 34
Florida Law Weekly D1342 (Fla. 3d DCA 2009); SDG Dadeland v. Anthony, 33 Florida
Law Weekly D507 (Fla. 3d DCA 2008); Wall v. Costco, 857 So. 2d 975 (Fla. 3d DCA
2003); Henderson v. State, 648 So. 2d 856 (Fla. 2d DCA 1995); Jean Marie v. State of
Florida, 993 So. 2d 1160 (Fla. 4th DCA 2008); Haliburton v. State, 561 So. 2d 248 (Fla.
1990); Lowder v. Econ Opportunity, 680 So. 2d 1133 (Fla. 3d DCA 1996).
27. The Defendant should be precluded from making any reference to whether any of the
other passengers in the vehicle were injured or not.
28. The Defendant should be precluded from making any reference or comment that the
Defendant may have to pay attorney’s fees and costs if it loses this case.
29. The Plaintiff seeks an order of the Court precluding any IME cut off argument be limited
to a reasonable amount of time to AFTER the date the Defendant mailed a letter
informing the patient or the Plaintiff of the cut-off date. It would not be reasonable or fair
for the Plaintiff or the patient to assume the Defendant would cut off benefits and it
would not be reasonable for the Defendant to withhold this information for an
unreasonable amount of time. See Tiedtke v. Fidelity, 222 So.2d 206 (Fla. 1969) where
the Court held “If an insurer intends to stand on any forfeiture reservation, it should
Plaintiff’s First Motion in Limine |10
inform the insured as soon as practicable after it has ascertained facts upon which its
bases its forfeiture.” See also Crown Life v. McBride, 517 So. 2d 660 (Fla. 1987)
“equitable estoppel known as promissory estoppel may be utilized to create insurance
coverage where to refuse to do so would sanction fraud or other injustice.” Why should
the Defendant hold onto the IME cut for months before informing the patient or the
attorney? This would be injustice. The PIP statute allows for an IME to cut off
subsequent benefits. If the benefits should not be deemed subsequent benefits until such
time as the insurer informs the patients of the intent to cut off benefits.
30. The Plaintiff seeks to exclude any mention of whether the patient made any payments
toward its deductible or co-pay as this is not an issue in the case and could only serve to
confuse the jury.
31. The Plaintiff seeks an order precluding the Defendant from asking the treating/ordering
doctor if he or she maintains records as is required of the defense doctors pursuant to
Section 627.736(7)(a), Fla. Stat., as this statute is not applicable to the treating doctors.
32. The Plaintiff seeks an order precluding the Defendant from introducing any defense and
indemnity language contained in any policy of insurance. In Allstate v. Kaklamanos, 843
So. 2d 885 (Fla. 2003) the Florida Supreme Court held Allstate could not argue that the
defense and indemnity precluded an insured from suing a PIP insurer. In Decker v.
Allstate Insurance Co., 7 Fla. L. Weekly Supp. 145 (Fla. Broward County Court 1999),
Allstate moved for Summary Judgment alleging the insured had no damages due to the
language in the above endorsement. The court denied the motion and held Florida law
does not require an insured to be sued by a medical provider prior to filing suit again a
Plaintiff’s First Motion in Limine |11
personal injury protection carrier. The court found the Defendant’s argument, if adopted,
would give an insurance company an incentive to NOT pay claims in a prompt manner.
In Florlenza v. Allstate Indemnity Co., 7 Fla. L. Weekly Supp. 74 (Fla. Brevard County
Court 1999) the court held the above agreement is without force or effect. The court
found the language would potentially force the insured to incur consequential damages
from the loss of credit and/or the rendition of an adverse judgment. In Davis v. Allstate
Indemnity Co., 7 Fla. L. Weekly Supp. 357 (Fla. Broward Cty Court 2000) Judge Wright
granted the Plaintiff’s Motion in Limine precluding Allstate from raising this policy
language for any purpose during the trial as he found the language without force or effect.
In Jones v. Allstate, 7 Fla. L. Weekly Supp. 541 (Fla. Escambia Cty Court 2000) the
County Court Judge denied Allstate Motion for Summary Judgment explaining the above
language is not enforceable as it violates the statute and public policy. In Andrews v.
Allstate, 7 Fla. L. Weekly Supp. 613 (Fla. Escambia Cty Court 2000) the court denied
Allstate’s Motion for Summary Judgment on this exact issue. See Allstate Insurance Co.
v. Ivey, 25 FLW S1103 (Fla. 2000) where the court held the purpose of the no fault
scheme is to provide swift and virtually automatic payment so that the injured may get on
with his life without undue financial interruption. Allowing the Defendant to utilize this
argument would keep the debt owed for an indefinite period of time. See also Burgess v.
Allstate, 823 So. 2d 130 (Fla. 2d DCA 2002) where the Court held this language is not
enforceable.
33. The Plaintiff seeks an order precluding the Defendant’s experts from bolstering his/her
testimony by stating on direct examination that a treatise or other type of publication
Plaintiff’s First Motion in Limine |12
supports his/her opinions or that he/she was recognized as a top doctor. See Libertore v.
Kaufman, 835 So. 2d 404 (Fla. 4th DCA 2003). The general rule is that authoritative
publications can only be used during the cross-examination of an expert and cannot be
used to bolster the credibility of an expert or to supplement an opinion. Erwin v. Todd,
699 So. 2d 275 (5th DCA 1997).
34. As there was a pre-suit offer or tender that was made by the Defendant then the Plaintiff
would preclude any testimony of same. The Plaintiff has the burden of proof under
Florida law. See Fla. Stat. §90.408 which states evidence of an offer to compromise a
claim which was disputed as to validity or amount, as well as any relevant conduct or
statements made in negotiation concerning a compromise is inadmissible to prove
liability or absence of liability for the claim or its value. An offer of settlement would
simply not be relevant to any of the material issues in the case and would only serve to
demonstrate the Defendant tried to resolve this matter pre-suit. The offer does not show
motive, bias, intent, or anything that is remotely relevant to the case at bar. Any probative
value would be outweighed by the prejudice to the Plaintiff. This statute promotes
Florida’s public policy favoring settlement by excluding such prejudicial evidence at
trial. Saleeby v. Rocky Elson, 34 FLW S106 (Fla. 2009). In Sullivan v. Galske, 917 So.
2d 412 (Fla. 2d DCA 2006) the Court held:
In most cases, evidence of pre-suit settlement negotiations is not
admissible during trial. See §90.408, Fla. Stat. (2004). Because
parties often make offers to settle for economic reasons, an offer is
not treated like an admission of liability and would be of marginal
relevance to the issues at trial. This evidence is also excluded to
encourage settlement discussions. Charles W. Ehrhardt, Florida
Evidence ' 408.1 (2004 ed.). When such evidence is submitted for
Plaintiff’s First Motion in Limine |13
some reason at trial, it is not always clear on the face of the
document what relevance or weight the document might have to a
determination of whether a party unequivocally rejected a
settlement offer that was in all respects more favorable than the
judgment ultimately received.
35. Plaintiff seeks an order of the Court instructing the Defendant to not move for a mistrial
in the presence of the jury.
36. Plaintiff seeks to preclude the Defendant from waiving around or showing the jury
documents or evidence not admitted in evidence when cross examining a witness. This
would include but is not limited to an IME/Peer Review Report, an EOB, a settlement
check or offer.
37. Plaintiff seeks to preclude the Defendant from asking the Plaintiff’s attorney to stipulate
to any items in the presence of the jury.
38. Plaintiff seeks to preclude the Defendant from stating in front of the jury the Plaintiff
violated any prior Court orders in the presence of the jury. Such statements should be
made at side bar.
39. The Plaintiff seeks an order of the Court precluding Defendant from abusing the patient if
they have health insurance, worker’s compensation, welfare, collateral source, social
security, or public health benefits. This is not relevant as PIP insurance is primary and
would serve only to confuse or mislead the jury. Parker v. Hoppock, 695 So. 2d. 424 (4th
DCA); Williams v. Pincombe, 309 So. 2d 10 (Fla. 4th DCA 1975); Sheffield v. Superior
Insurance, 800 So. 2d 197 (Fla. S.C. 2001 No. SC96857); Goodman v. Roma
Construction, 537 So. 2d 597 (Fla. 3rd DCA 1989); Winston Towers v. DeCarlo, 481
So.2d 1261 (Fla. 3rd DCA 1986); Gormley v. GTE, 587 So. 2d 455 (Fla. SC 1991 No.
Plaintiff’s First Motion in Limine |14
74861); Cook v. Eney, 277 So. 2d 848 (Fla. 3rd DCA 1973); Paradis v. Thomas, 150
So.2d 457 (Fla. 2nd DCA 1963). There should be no statements concerning other forms
of insurance as it would serve no purpose but to confuse the jury.
40. The Plaintiff seeks to preclude any mention of the patient’s general medical history,
weight, or type of work performed by the patient in order to insinuate that this caused or
contributed to the patient’s complaints or injuries when there was no such testimony in
the record.
41. That the Defendant not mention any prior injuries, diseases, conditions or illnesses which
are wholly disassociated from plaintiff’s present condition and which the Defendant
cannot medically, causally relate, or, associate and causally relate to the patient's present
condition.
42. Any volunteering of information or testimony by Defendant’s experts which is not
responsive to the cross-examination by Plaintiff’s counsel. Ratley v. Batchelor, 599 So.
2d 1298 (Fla. 1st DCA 1991).
43. Any reference that patient is malingering or otherwise attempting to make some type of
secondary gain from his/her accident and any questions, allusions or statements that
Plaintiff or other patients involved in compensation cases seem to have a harder time
getting well or better.
44. Any questions, allusions or statements regarding any reference concerning why the
patient never returned to any medical provider or continued treatment with any medical
provider unless Plaintiff is entitled to introduce evidence that the reason for the patient is
Plaintiff’s First Motion in Limine |15
not seeking medical treatment was due to the patient’s financial inability to pay for the
medical treatments and that the Defendant has not been paying the medical bills.
45. Any argument the provider’s notes are not adequate or in any way fall below the standard
of care. There has been no evidence to date that the provider’s notes or record keeping
are inadequate or fall below the standard of care. This would require expert opinion and
there are none. Allowing the Defendant to raise this issue for the first time would be
unfair and prejudicial to the Plaintiff.
46. In the event there is a settlement between the provider and the patient this information
should not be provided to the jury. See Fla. Stat. § 768.041(3).
47. Plaintiff seeks to preclude the introduction or mention of the defense expert’s written
opinions, whether contained within an IME report or another form of report. See
McElroy v. Perry, 753 So. 2d 121 (Fla. 2d DCA 2000), where the court held “We agree
with this view and conclude that an IME report prepared for the purpose of litigation
lacks the trustworthiness that business records are presumed to have, and therefore, is not
admissible under the business records exception.” See also Ross Dress For Less, Inc. v.
Radcliff, 751 So. 2d 126, 127 (Fla. 2d DCA 2000).
48. Plaintiff seeks to preclude any argument of the failure of an airbag to deploy. First, there
is no evidence the vehicle in question had a working air bag. Second, there is no evidence
the type of impact in question would cause an air bag to deploy. Any mention of a failure
of an air bag to deploy would confuse the jury as to the force of impact.
49. Plaintiff seeks to preclude the Defendant’s adjuster from testifying in any capacity from
the adjuster notes, sometimes referred to as AS400 notes, as the Defendant has claimed
Plaintiff’s First Motion in Limine |16
these documents as work product and refused to provide them. The Defendant should not
be permitted to have the adjuster rely on them at trial and not produce them. A trial is not
a place for discovery. The Defendant has made the decision and the Defendant should
have to stand by this decision.
50. Defendant should be precluded from any mention that the claimant went to see an
attorney or that an attorney referred him/her to the medical facility in question. It is not
relevant and its prejudicial value far outweighs its probative value. Any questions
regarding the time period or circumstances under which the claimant hired an attorney is
not relevant to this suit. Watson v. Builders Square, 563 So. 2d 721 (4th DCA 1990).
There is no allegation that the claimant is litigious and therefore no relevance to him/her
seeking the assistance of an attorney or how it was that she came to seek medical
treatment.
51. Any mention, comment, reference, suggestion or question to the patient's desire for
treatment being motivated by the attorneys, claim building or establishment of the tort
threshold in a personal injury case.
MEMORANDUM OF LAW
The Plaintiff has prepared this motion to avoid a mistrial and to confirm the parties will
get a fair trial. Fla. Stat. §90.401 defines "relevant evidence" as that tending to prove or disprove
a material fact. The above would not be relevant or would be collateral to the issues of this trial
and would serve only to confuse and distract the jury.
Plaintiff’s First Motion in Limine |17
Additionally, Fla. Stat. §90.403 states that even relevant evidence is not admissible at
trial if its probative value is outweighed by the risk of prejudice to a party.
Allowing the Defendant to introduce any evidence or make any comment(s) regarding the
above matters in the presence of the jury would be extremely prejudicial to the Plaintiff and
would inflame and confuse the jury and detract from the true issues and the merits in this case.
The Plaintiff is entitled to a fair trial as a matter of law.
The Court can consider the public policy of keeping out the above arguments. See Lenon
Diaz Hernandez v. State Farm, 34 Florida Law Weekly D1046 (Fla. 3d DCA 2009) where the
Court found a provision in an uninsured motorist provision that requires the uninsured motorist
to be joined in the lawsuit against the uninsured motorist carrier to be against public policy.
See Wall v. Costco, 28 Fla. L. Weekly D2465 (Fla. 3d DCA 2003) where the Court held
it was reversible error for the Defendant to make comments that the Plaintiff was married to an
attorney, the failure to call witnesses that the Defendant knew were unavailable, and other
reasons.
See Progressive v. Doctor’s Pain Management, 14 Florida Law Weekly Supp. 1010 (Fla.
9th Cir. Court 2007) the Court held it was not relevant the doctor’s knowledge of a procedure
when the only issue was price.
WHEREFORE, the Plaintiff respectfully requests this Honorable Court grant this
Motion and preclude the Defendant, the Defendant’s attorney, and the Defendant’s witnesses
from making any of the above comments together with any and all further relief this Court deems
just and proper.
Plaintiff’s First Motion in Limine |18
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy was submitted to the Florida Courts E-Filing
Portal to be served upon the following persons at the designated email address(es) for service:
Marcus Griggs, Esq., Law Office Of Haydee De La Rosa Tolgyesi, 2600 Douglas Road,
Suite#700, Coral Gables, FL 33134, Miamipipgeico@Geico.Com, this 11th day of November,
2021.
The Evolution Law Group, P.A.
2700 Glades Circle, Suite 145
Weston, FL 33327
Telephone (954) 840 6665
Facsimile (954) 840 6997
ServiceELG@theevolutionlawGroup.com
George@bgelegal.com
Attorney for Plaintiff
/s/ Kelly M. Arias
Kelly M. Arias Esquire
Florida Bar No. 0013980
Plaintiff’s First Motion in Limine |19
Plaintiff’s First Motion in Limine |20
Preview
Filing # 138343955 E-Filed 11/11/2021 10:41:55 AM IN THE COUNTY COURT IN AND FOR MIAMI-DADE COUNTY FLORIDA CASE NO. 21-009772-cc-21 THE RIGHT SPINAL CLINIC, INC. A/A/O (HERNANDEZ, LOIDA) , Plaintiff, vs. GEICO GENERAL INS. CO., Defendant. _________________________________/ ______________________________________________________________________________ PLAINTIFF’S FIRST MOTION IN LIMINE ______________________________________________________________________________ COMES NOW, the Plaintiff, The Right Spinal Clinic, Inc a/a/o Hernandez,Loida, by and through undersigned counsel, and files this Motion in Limine regarding the general allegations, certain records, and remarks, and as grounds therefore states as follows: 1. The Plaintiff has filed suit against the Defendant for PIP benefits. The Plaintiff anticipates that the Defendant will attempt to elicit and make prohibited general allegations and remarks during the trial. The primary purpose of a Motion in Limine is to prevent prejudice at the time of trial that cannot be corrected, and which would result in a party not receiving a fair trial. The Court has the authority to issue a preliminary ruling on the admissibility of evidence. The decision to do so is vested in the sound discretion of the Court. The Court’s decision will not be overturned on appeal absent a showing of a Plaintiff’s First Motion in Limine |1 clear abuse of discretion. These motions are designed to simplify the trial, avoid side bars, and avoid prejudice that often occurs when a party is forced to object in the front of the jury to the introduction of evidence. 2. The Plaintiff hereby moves to preclude the Defendant, the Defendant’s attorney or the Defendant’s witnesses from directly or indirectly making any such reference or inference regarding any of the following: 3. Any reference to “crowded courtrooms” or identifying, either directly or implicitly, this case as being the type of case that causes delays or backlogs in the court systems. Stokes v. Wet’n Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988); Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 4. Any mention that the effect or results of a claim, suit, or judgment upon insurance rates, premiums, or charges, either generally or as particularly, to Defendant or its insured, as a result of this lawsuit or any other lawsuit. Davidoff v. Segret, 551 So. 2d 1274 (Fla. 4th DCA 1989); Russel v. Guider, 362 So.2d 55 (Fla. 4th DCA 1978). 5. Any mention or reference to an “insurance crisis”. Davidoff v. Segret, 551 So. 2d 1274 (Fla. 4th DCA 1989), Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 6. That if Defendant’s expert is permitted to testify, he/she should not be permitted to express his/her opinions as to the Plaintiff’s experts. It is improper to impeach an expert witness by eliciting from another expert witness what he/she thinks of that expert. Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977); Ecker v. Nashville Roofing of Miami, Inc., 201 So. 2d 586 (Fla. 3rd DCA 1967). See also Dungan v. Ford, 632 So. 2d Plaintiff’s First Motion in Limine |2 159 (Fla. 1st DCA 1994) (improper to allow expert to testify on lack of skill or judgment and poor results achieved by a treating physician), Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002); Carver v. Orange County, 444 So. 2d 452 (Fla. 5th DCA 1983) (error to permit expert witness to impeach another expert witness by asking first expert witness as to second expert’s ability). It is improper to impeach an expert witness by eliciting from another expert witness what he thinks of that expert. Ecker v. Nashville Roofing of Miami, Inc., 201 So. 2d 586 (Fla. 3rd DCA 1967). In Enterprise Leasing v. Sosa, 907 So. 2d 1239 (Fla. 3d DCA 2005) the Court held the trial court correctly precluded an expert from commenting on the sufficiency or credibility of the Plaintiff’s evidence, from speaking about the Plaintiff’s evidence and from commenting on the weight and sufficiency of the Plaintiff’s testimony. 7. That if Defendant’s expert is permitted to testify, he/she should not be permitted to reference any opinions not contained in the report or answers to expert Interrogatories. This would be trial by ambush, “surprise in fact,” and unfair surprise. See Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981); Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 1999). Pipkin v. Hamer, 501 So. 2d 1365 (Fla. 4th DCA 1987); Scarlett v. Ouellette, 948 So. 2d 859 (Fla. 3d DCA 2007); Gonzalez v. State of Florida, 777 So. 2d 1068 (Fla. 3d DCA 1068); Carver v. Orange County, 444 So. 2d 452 (Fla. 5th DCA 1983) (error to permit expert witness to impeach another expert witness by asking first expert witness as to second expert’s ability). The Plaintiff was under no obligation to depose the Defendant’s expert. See Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA Plaintiff’s First Motion in Limine |3 1999). The Plaintiffs has a right to know, and the Defendant has the duty to inform the Plaintiff of its opinions in advance of the trial. The Plaintiff would be prejudiced if there are any new opinions generated at the time of trial. The Plaintiff would not be able to prepare, in advance of the trial, for any new opinions. The Plaintiff generated expert witness interrogatories and the Plaintiff should be able to rely on the opinions contained therein are the final opinions. 8. The Defendant’s attorney, experts and/or witnesses should be limited from stating personal opinions about the Plaintiff, or the patient, or about the merits of the claim. See Wasten v. Seaboard Coast Line R.R. Co., 474 So. 2d 825 (Fla. 2nd DCA 1985) (error to state personal opinions about the merits of the case or credibility of the Plaintiff). rev. den., 484 So. 2d 9 (Fla. 1986). See also Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. 1st DCA 1989); Blue Grass Shows, Inc. v. Collins, 614 So.2d 626 (Fla. 1st DCA 1993); Nelson v. Reliance Ins. Co., 368 So. 2d 361 (Fla. 4th DCA 1978); Riley v. Willis, 585 So.2d 676 (Fla. 1st DCA 1995). Cf., Feller v. State, 637 So. 2d 911 (Fla. 1994) (error for expert to state belief that victim was telling the truth); Tingle v. State, 536 So. 2d 202 (Fla. 1989) (error to commit expert to testify she believed victim.); Hitchcock v. State, 636 So. 2d 572 (Fla. 4th DCA 1994); Davis v. State, 527 So. 2d 962 (Fla. 5th DCA 1988) (error to permit expert to testify the victim was frank); SDG Dadeland v. Anthony, 33 Florida Law Weekly D507 (Fla. 3d DCA 2008). A trial is no place for an attorney’s personal opinions and any opinions would violate the Florida Bar rules. Plaintiff’s First Motion in Limine |4 9. The Plaintiff hereby moves to preclude the Defendant, the Defendant’s attorney or the Defendant’s witnesses from directly or indirectly making any reference concerning fraud or any newspaper articles or grand jury reports as these issues are a matter to be decided by this case. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). This case involves a PIP suit over the Defendant’s failure to pay medical expenses pursuant to Florida law and the terms and conditions of the policy of insurance. The Defendant has not pled any affirmative defense relating to fraud of any kind or listed any exhibit or witness with information concerning fraud. Any discussion about fraud of any kind, the possibility of fraud or the prevention of fraud will be unduly prejudicial and outside the scope of these pleadings. 10. The Plaintiff seeks an Order of the Court precluding the Defendant, the Defendant’s counsel, or any of the witnesses from informing the jury the doctor’s hired by the Defendant were “independent”. The doctors are not independent. The defendant’s doctors were hired by the defense and paid by the defense. See U.S. Security v. Cimino, 754 So. 2d 697 (Fla. 2000); Allstate v. Boecher, 733 So. 2d 993 (Fla. 1999, footnote 4); Jeremie v. Carey, 16 Florida Law Weekly Supp. 740 (Fla. Palm Beach Cir. Court 2009) (defense doctor will not be referred to as independent or as an IME); Nguyen v. State Farm, 9 Fla. L. Weekly Supp. 305 (Fla. Palm Beach Cir. Court 2002). If the jury hears the doctors are “independent” the jury may be confused into believing or thinking the doctors were appointed by this court, the county, a governing body, or with the approval of the Plaintiff or the Plaintiff’s attorney. The Defendant should refer its doctors as defense witnesses. See also Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Plaintiff’s First Motion in Limine |5 Supp. 721 (Fla. Broward Cty Court 2002); Arbogast v. Barlow, 11 Florida L. Weekly Supp. 119 (Fla. Broward Cir. Court 2003) (in a 3rd party case the Court ruled the doctor hired by the insurance company cannot be referred to as “independent”). See also McGarrah v. Bayfront, 889 So. 2d 923 (Fla. 2d DCA) where the Court referred to the exam as a compulsory medical examination. See Florida Rule of Civil Procedure 1.360(c), Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 996 footnote 4 (Fla. 1999); and Broward County v. Cento, 611 So. 2d 1339 (Fla. 4th DCA 1993). 11. The Plaintiff seeks an order precluding any evidence about any information contained in any police reports, statements made to the police, to preclude the placing of the police report in evidence from either the Defendant, the Defendant’s experts, or the Defendant’s attorney and to ask the insured or the patient why he/she does not appear on the police report. 12. There should be no questions as to what the patient or the insured did or did not do in relation to the police report. 13. The Plaintiff also seeks an order precluding the raising or asking about the amount of property damage the patient’s vehicle sustained in the accident. There is no correlation between property damages in an automobile and the amount of injuries. There has been no expert witness who are qualified to discuss this issue and any reference to the amount of property damage will be unduly prejudicial. 14. The Plaintiff also seeks an order precluding the raising or asking about any financial motives the medical provider may have had in prescribing treatment or ordering diagnostic tests as there is no evidence the Plaintiff was financially motivated to order Plaintiff’s First Motion in Limine |6 any tests. Any reference to this type of motivation would be extremely prejudicial and this issue should not be raised in any capacity. See Diagnostic Neurology Group, Inc. v. Allstate, 5 Fla. L. Weekly Supp. 134 (Fla. 9th Cir. Court 1997). 15. The Plaintiff seeks to exclude any amount previously paid by the Defendant as it is unrelated to the bills that are at issue and it will serve only to prejudice the jury. 16. Defendant shall be prohibited from making any mention, comment, reference, suggestion or question regarding anything suspicious about the accident. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 17. Defendant shall be prohibited from making any mention, comment, reference, suggestion or question that the type of impact involved in this case would not produce injury. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 18. Defendant shall be prohibited from making any mention, comment, reference, suggestion or question to anything that was said by anyone at the scene of the accident during the accident investigation. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 19. Defendant shall be prohibited from making any mention, comment, reference, suggestion or question to the financial status of the Plaintiff. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 20. Defendant shall be prohibited from making any mention, comment, reference, suggestion or question of the opinion of any adjuster of Defendant or the opinion any witness appearing on behalf of Defendant as to the validity or the lack of validity of the Plaintiff's Plaintiff’s First Motion in Limine |7 claim. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 21. Defendant should be prohibited from making any mention, comment, reference, suggestion or question of other patients of the treating physicians of Plaintiff. Levinson v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 721 (Fla. Broward Cty Court 2002). 22. The Defendant should be precluded from making any comment or reference to their alleged motive to reduce or deny payments in order to preserve benefits for the insured. Since the Defendant has not provided the Plaintiff with any evidence as to how much money the Defendant has saved by not paying claims or reducing payments of claims. Since the Defendant has not produced this information the Plaintiff has been prejudiced by its inability to effectively cross examine the Defendant as to this argument. Judge Pratt in the case of Dr. Pollak a/a/o Cino v. Progressive, 02-009602 COCE 56 (Fla. Broward County Court 2002) entered an order to this effect on November 14, 2002. 23. The Defendant should also be precluded from mentioning or informing the Court what they attempted to pay, at the time of trial. The Plaintiff has the burden of proof and under Florida law any amounts paid by the Defendant would be irrelevant and confusing to the jury. The Court will not instruct the jury to consider what the Defendant paid in determining whether the Plaintiff’s bill is related or necessary and it should not be introduced by the Court. The jury will get confused as the amount offered by the Defendant may very well be reasonable but what the Defendant did or did not do is not the issue in the case and it will only serve to confuse the jury. Plaintiff’s First Motion in Limine |8 24. The Defendant should be precluded from raising any additional defenses, legal issues, or claim the bills have not been lawfully rendered as these issues have not been raised. The Plaintiff is entitled to rely on the pretrial stipulation and any new defenses should be deemed waived. See Cooke v. Insurance Co. of North America, 652 So. 2d 1154 (Fla. 2d DCA 1995). The Plaintiff will be prejudiced as it will be unable to prepare for any new legal arguments at the time of trial. “Where a defendant fails to provide an answer or responsive pleading he waives defenses that could have been raised in those pleadings” Chillemi v. Rorabeck, 629 So. 2d 206 (Fla. 4th DCA 1994). Furthermore, “All other defenses are waived if not raised by motion or responsive pleading” J.A.B. Enterprises v. Gibons, 596 So. 2d 1247 (4th DCA 1992), “[a]verments in a pleading to which a responsive pleading is required are admitted when not denied in the responsive pleading” Id,. at 1249, See also, Florida Rule of Civil Procedure 1.110(e). “In the absence of a responsive pleading to a cross-claim which states a cause of action, the court, after notice and a hearing may enter a default judgment” Fla.R.Civ.P. 1.500(b), See also National Union Fire Ins. Co. of Pittsburg v. J.M. Pontiac, Inc., 571 So. 2d 512 (Fla. 3rd DCA 1990). Appellant argues, correctly, that subject to certain exceptions not applicable here, affirmative defenses not alleged in the answer are deemed waived. Fla. R. Civ. P. 1.140(b) & (h). See Billo v. Benoit, 519 So.2d 1114 (Fla. 1st DCA 1988), Moreover, nonperformance of a condition precedent must be plead “specifically and with particularity, or it will be deemed waived,” as well. Fla. R. Civ. P. 1.120(c), Magnum v. Susser, 764 So. 2d 653 (Fla. 1st DCA 2000). Plaintiff’s First Motion in Limine |9 25. The Defendant should be precluded from discussing or introducing any exhibits not previously raised or listed in the pretrial stipulation. The Plaintiff will be prejudiced by being unable to fully evaluate any last minute exhibits. 26. The Defendant should be precluded from making any reference of the Plaintiff’s failure to call any witness especially where such testimony would be cumulative or where said witness would be equally available to the Defendant. Community Asphalt v. Bassols, 34 Florida Law Weekly D1342 (Fla. 3d DCA 2009); SDG Dadeland v. Anthony, 33 Florida Law Weekly D507 (Fla. 3d DCA 2008); Wall v. Costco, 857 So. 2d 975 (Fla. 3d DCA 2003); Henderson v. State, 648 So. 2d 856 (Fla. 2d DCA 1995); Jean Marie v. State of Florida, 993 So. 2d 1160 (Fla. 4th DCA 2008); Haliburton v. State, 561 So. 2d 248 (Fla. 1990); Lowder v. Econ Opportunity, 680 So. 2d 1133 (Fla. 3d DCA 1996). 27. The Defendant should be precluded from making any reference to whether any of the other passengers in the vehicle were injured or not. 28. The Defendant should be precluded from making any reference or comment that the Defendant may have to pay attorney’s fees and costs if it loses this case. 29. The Plaintiff seeks an order of the Court precluding any IME cut off argument be limited to a reasonable amount of time to AFTER the date the Defendant mailed a letter informing the patient or the Plaintiff of the cut-off date. It would not be reasonable or fair for the Plaintiff or the patient to assume the Defendant would cut off benefits and it would not be reasonable for the Defendant to withhold this information for an unreasonable amount of time. See Tiedtke v. Fidelity, 222 So.2d 206 (Fla. 1969) where the Court held “If an insurer intends to stand on any forfeiture reservation, it should Plaintiff’s First Motion in Limine |10 inform the insured as soon as practicable after it has ascertained facts upon which its bases its forfeiture.” See also Crown Life v. McBride, 517 So. 2d 660 (Fla. 1987) “equitable estoppel known as promissory estoppel may be utilized to create insurance coverage where to refuse to do so would sanction fraud or other injustice.” Why should the Defendant hold onto the IME cut for months before informing the patient or the attorney? This would be injustice. The PIP statute allows for an IME to cut off subsequent benefits. If the benefits should not be deemed subsequent benefits until such time as the insurer informs the patients of the intent to cut off benefits. 30. The Plaintiff seeks to exclude any mention of whether the patient made any payments toward its deductible or co-pay as this is not an issue in the case and could only serve to confuse the jury. 31. The Plaintiff seeks an order precluding the Defendant from asking the treating/ordering doctor if he or she maintains records as is required of the defense doctors pursuant to Section 627.736(7)(a), Fla. Stat., as this statute is not applicable to the treating doctors. 32. The Plaintiff seeks an order precluding the Defendant from introducing any defense and indemnity language contained in any policy of insurance. In Allstate v. Kaklamanos, 843 So. 2d 885 (Fla. 2003) the Florida Supreme Court held Allstate could not argue that the defense and indemnity precluded an insured from suing a PIP insurer. In Decker v. Allstate Insurance Co., 7 Fla. L. Weekly Supp. 145 (Fla. Broward County Court 1999), Allstate moved for Summary Judgment alleging the insured had no damages due to the language in the above endorsement. The court denied the motion and held Florida law does not require an insured to be sued by a medical provider prior to filing suit again a Plaintiff’s First Motion in Limine |11 personal injury protection carrier. The court found the Defendant’s argument, if adopted, would give an insurance company an incentive to NOT pay claims in a prompt manner. In Florlenza v. Allstate Indemnity Co., 7 Fla. L. Weekly Supp. 74 (Fla. Brevard County Court 1999) the court held the above agreement is without force or effect. The court found the language would potentially force the insured to incur consequential damages from the loss of credit and/or the rendition of an adverse judgment. In Davis v. Allstate Indemnity Co., 7 Fla. L. Weekly Supp. 357 (Fla. Broward Cty Court 2000) Judge Wright granted the Plaintiff’s Motion in Limine precluding Allstate from raising this policy language for any purpose during the trial as he found the language without force or effect. In Jones v. Allstate, 7 Fla. L. Weekly Supp. 541 (Fla. Escambia Cty Court 2000) the County Court Judge denied Allstate Motion for Summary Judgment explaining the above language is not enforceable as it violates the statute and public policy. In Andrews v. Allstate, 7 Fla. L. Weekly Supp. 613 (Fla. Escambia Cty Court 2000) the court denied Allstate’s Motion for Summary Judgment on this exact issue. See Allstate Insurance Co. v. Ivey, 25 FLW S1103 (Fla. 2000) where the court held the purpose of the no fault scheme is to provide swift and virtually automatic payment so that the injured may get on with his life without undue financial interruption. Allowing the Defendant to utilize this argument would keep the debt owed for an indefinite period of time. See also Burgess v. Allstate, 823 So. 2d 130 (Fla. 2d DCA 2002) where the Court held this language is not enforceable. 33. The Plaintiff seeks an order precluding the Defendant’s experts from bolstering his/her testimony by stating on direct examination that a treatise or other type of publication Plaintiff’s First Motion in Limine |12 supports his/her opinions or that he/she was recognized as a top doctor. See Libertore v. Kaufman, 835 So. 2d 404 (Fla. 4th DCA 2003). The general rule is that authoritative publications can only be used during the cross-examination of an expert and cannot be used to bolster the credibility of an expert or to supplement an opinion. Erwin v. Todd, 699 So. 2d 275 (5th DCA 1997). 34. As there was a pre-suit offer or tender that was made by the Defendant then the Plaintiff would preclude any testimony of same. The Plaintiff has the burden of proof under Florida law. See Fla. Stat. §90.408 which states evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiation concerning a compromise is inadmissible to prove liability or absence of liability for the claim or its value. An offer of settlement would simply not be relevant to any of the material issues in the case and would only serve to demonstrate the Defendant tried to resolve this matter pre-suit. The offer does not show motive, bias, intent, or anything that is remotely relevant to the case at bar. Any probative value would be outweighed by the prejudice to the Plaintiff. This statute promotes Florida’s public policy favoring settlement by excluding such prejudicial evidence at trial. Saleeby v. Rocky Elson, 34 FLW S106 (Fla. 2009). In Sullivan v. Galske, 917 So. 2d 412 (Fla. 2d DCA 2006) the Court held: In most cases, evidence of pre-suit settlement negotiations is not admissible during trial. See §90.408, Fla. Stat. (2004). Because parties often make offers to settle for economic reasons, an offer is not treated like an admission of liability and would be of marginal relevance to the issues at trial. This evidence is also excluded to encourage settlement discussions. Charles W. Ehrhardt, Florida Evidence ' 408.1 (2004 ed.). When such evidence is submitted for Plaintiff’s First Motion in Limine |13 some reason at trial, it is not always clear on the face of the document what relevance or weight the document might have to a determination of whether a party unequivocally rejected a settlement offer that was in all respects more favorable than the judgment ultimately received. 35. Plaintiff seeks an order of the Court instructing the Defendant to not move for a mistrial in the presence of the jury. 36. Plaintiff seeks to preclude the Defendant from waiving around or showing the jury documents or evidence not admitted in evidence when cross examining a witness. This would include but is not limited to an IME/Peer Review Report, an EOB, a settlement check or offer. 37. Plaintiff seeks to preclude the Defendant from asking the Plaintiff’s attorney to stipulate to any items in the presence of the jury. 38. Plaintiff seeks to preclude the Defendant from stating in front of the jury the Plaintiff violated any prior Court orders in the presence of the jury. Such statements should be made at side bar. 39. The Plaintiff seeks an order of the Court precluding Defendant from abusing the patient if they have health insurance, worker’s compensation, welfare, collateral source, social security, or public health benefits. This is not relevant as PIP insurance is primary and would serve only to confuse or mislead the jury. Parker v. Hoppock, 695 So. 2d. 424 (4th DCA); Williams v. Pincombe, 309 So. 2d 10 (Fla. 4th DCA 1975); Sheffield v. Superior Insurance, 800 So. 2d 197 (Fla. S.C. 2001 No. SC96857); Goodman v. Roma Construction, 537 So. 2d 597 (Fla. 3rd DCA 1989); Winston Towers v. DeCarlo, 481 So.2d 1261 (Fla. 3rd DCA 1986); Gormley v. GTE, 587 So. 2d 455 (Fla. SC 1991 No. Plaintiff’s First Motion in Limine |14 74861); Cook v. Eney, 277 So. 2d 848 (Fla. 3rd DCA 1973); Paradis v. Thomas, 150 So.2d 457 (Fla. 2nd DCA 1963). There should be no statements concerning other forms of insurance as it would serve no purpose but to confuse the jury. 40. The Plaintiff seeks to preclude any mention of the patient’s general medical history, weight, or type of work performed by the patient in order to insinuate that this caused or contributed to the patient’s complaints or injuries when there was no such testimony in the record. 41. That the Defendant not mention any prior injuries, diseases, conditions or illnesses which are wholly disassociated from plaintiff’s present condition and which the Defendant cannot medically, causally relate, or, associate and causally relate to the patient's present condition. 42. Any volunteering of information or testimony by Defendant’s experts which is not responsive to the cross-examination by Plaintiff’s counsel. Ratley v. Batchelor, 599 So. 2d 1298 (Fla. 1st DCA 1991). 43. Any reference that patient is malingering or otherwise attempting to make some type of secondary gain from his/her accident and any questions, allusions or statements that Plaintiff or other patients involved in compensation cases seem to have a harder time getting well or better. 44. Any questions, allusions or statements regarding any reference concerning why the patient never returned to any medical provider or continued treatment with any medical provider unless Plaintiff is entitled to introduce evidence that the reason for the patient is Plaintiff’s First Motion in Limine |15 not seeking medical treatment was due to the patient’s financial inability to pay for the medical treatments and that the Defendant has not been paying the medical bills. 45. Any argument the provider’s notes are not adequate or in any way fall below the standard of care. There has been no evidence to date that the provider’s notes or record keeping are inadequate or fall below the standard of care. This would require expert opinion and there are none. Allowing the Defendant to raise this issue for the first time would be unfair and prejudicial to the Plaintiff. 46. In the event there is a settlement between the provider and the patient this information should not be provided to the jury. See Fla. Stat. § 768.041(3). 47. Plaintiff seeks to preclude the introduction or mention of the defense expert’s written opinions, whether contained within an IME report or another form of report. See McElroy v. Perry, 753 So. 2d 121 (Fla. 2d DCA 2000), where the court held “We agree with this view and conclude that an IME report prepared for the purpose of litigation lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the business records exception.” See also Ross Dress For Less, Inc. v. Radcliff, 751 So. 2d 126, 127 (Fla. 2d DCA 2000). 48. Plaintiff seeks to preclude any argument of the failure of an airbag to deploy. First, there is no evidence the vehicle in question had a working air bag. Second, there is no evidence the type of impact in question would cause an air bag to deploy. Any mention of a failure of an air bag to deploy would confuse the jury as to the force of impact. 49. Plaintiff seeks to preclude the Defendant’s adjuster from testifying in any capacity from the adjuster notes, sometimes referred to as AS400 notes, as the Defendant has claimed Plaintiff’s First Motion in Limine |16 these documents as work product and refused to provide them. The Defendant should not be permitted to have the adjuster rely on them at trial and not produce them. A trial is not a place for discovery. The Defendant has made the decision and the Defendant should have to stand by this decision. 50. Defendant should be precluded from any mention that the claimant went to see an attorney or that an attorney referred him/her to the medical facility in question. It is not relevant and its prejudicial value far outweighs its probative value. Any questions regarding the time period or circumstances under which the claimant hired an attorney is not relevant to this suit. Watson v. Builders Square, 563 So. 2d 721 (4th DCA 1990). There is no allegation that the claimant is litigious and therefore no relevance to him/her seeking the assistance of an attorney or how it was that she came to seek medical treatment. 51. Any mention, comment, reference, suggestion or question to the patient's desire for treatment being motivated by the attorneys, claim building or establishment of the tort threshold in a personal injury case. MEMORANDUM OF LAW The Plaintiff has prepared this motion to avoid a mistrial and to confirm the parties will get a fair trial. Fla. Stat. §90.401 defines "relevant evidence" as that tending to prove or disprove a material fact. The above would not be relevant or would be collateral to the issues of this trial and would serve only to confuse and distract the jury. Plaintiff’s First Motion in Limine |17 Additionally, Fla. Stat. §90.403 states that even relevant evidence is not admissible at trial if its probative value is outweighed by the risk of prejudice to a party. Allowing the Defendant to introduce any evidence or make any comment(s) regarding the above matters in the presence of the jury would be extremely prejudicial to the Plaintiff and would inflame and confuse the jury and detract from the true issues and the merits in this case. The Plaintiff is entitled to a fair trial as a matter of law. The Court can consider the public policy of keeping out the above arguments. See Lenon Diaz Hernandez v. State Farm, 34 Florida Law Weekly D1046 (Fla. 3d DCA 2009) where the Court found a provision in an uninsured motorist provision that requires the uninsured motorist to be joined in the lawsuit against the uninsured motorist carrier to be against public policy. See Wall v. Costco, 28 Fla. L. Weekly D2465 (Fla. 3d DCA 2003) where the Court held it was reversible error for the Defendant to make comments that the Plaintiff was married to an attorney, the failure to call witnesses that the Defendant knew were unavailable, and other reasons. See Progressive v. Doctor’s Pain Management, 14 Florida Law Weekly Supp. 1010 (Fla. 9th Cir. Court 2007) the Court held it was not relevant the doctor’s knowledge of a procedure when the only issue was price. WHEREFORE, the Plaintiff respectfully requests this Honorable Court grant this Motion and preclude the Defendant, the Defendant’s attorney, and the Defendant’s witnesses from making any of the above comments together with any and all further relief this Court deems just and proper. Plaintiff’s First Motion in Limine |18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy was submitted to the Florida Courts E-Filing Portal to be served upon the following persons at the designated email address(es) for service: Marcus Griggs, Esq., Law Office Of Haydee De La Rosa Tolgyesi, 2600 Douglas Road, Suite#700, Coral Gables, FL 33134, Miamipipgeico@Geico.Com, this 11th day of November, 2021. The Evolution Law Group, P.A. 2700 Glades Circle, Suite 145 Weston, FL 33327 Telephone (954) 840 6665 Facsimile (954) 840 6997 ServiceELG@theevolutionlawGroup.com George@bgelegal.com Attorney for Plaintiff /s/ Kelly M. Arias Kelly M. Arias Esquire Florida Bar No. 0013980 Plaintiff’s First Motion in Limine |19 Plaintiff’s First Motion in Limine |20