Preview
Filing # 169787126 E-Filed 03/28/2023 11:10:13 AM
IN THE CIRCUIT COURT OF THE FIFTH
JUDICIAL CIRCUIT IN AND FOR LAKE
COUNTY, FLORIDA
CASE NUMBER: 2021 CA 1640
JOHN JOSEPH CONNOLLY,
Plaintiff,
vs.
JOHN ROBERT KOVAL and
J&J ICE, INC.,
Defendants.
/
PLAINTIFF’S MOTION IN LIMINE
COMES NOW, Plaintiff, JOHN JOSEPH CONNOLLY, by and through the undersigned
attorney, and moves this Court for an Order prohibiting any deposition or live testimony,
argument of counsel, evidence or other reference to the following issues during voir dire,
opening, or any other phase of trial:
1 Reference to Plaintiff’s Law Firm.
Unless, during voir dire questioning, a juror indicated that he or she knows or is otherwise
familiar with either Plaintiff's counsel, defense counsel should not be permitted to discuss the
fact that Plaintiff's counsel is with a firm. If no jurors indicate that they know Plaintiff's counsel,
then they certainly would not know that they are with the firm of Plaintiff. Therefore, any
mention of this would serve no relevant purpose and would only be offered to influence
members of the venire.
FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 03/28/2023 11:18:12 AM
2 Retention of Plaintiff’s Attorney.
Defense counsel should not be permitted to introduce any evidence or discuss when Plaintiff
contacted their personal counsel. This information is irrelevant and prejudicial. Watson v.
Builders Square, Inc., 563 So. 2d 721 (Fla. 4th DCA 1990).
3 Income Tax.
Defense counsel should not be permitted to discuss the fact that any recovery by Plaintiff would
not be subject to federal income tax. See Comfort Makers, Inc. v. Kenton, 515 So. 2d 1384 (Fla.
5th DCA 1987); Good Samaritan Hospital Assoc., Inc. v. Saylor, 495 So. 2d 782 (Fla. 4th DCA
1986); and Osteen v. Freitas, Case No. 84-1864, Slip Opinion (Fla. 5th DCA).
4 Auto Insurance Policy Availability.
That defense counsel should not be allowed to discuss the availability of automobile insurance
for the Plaintiff in this matter as any such testimony or information is irrelevant, wholly
prejudicial and violative of Florida’s non joinder statute. Defense counsel should also not be
permitted to make any mention of or elicit testimony that Defendants have offered any monies to
Plaintiff as this is an offer to compromise and not admissible. Similarly, defense counsel should
make no mention of anything that was provided to the defense in this matter and/or said by
Plaintiffs counsel at the mediation of this matter. See Florida Rules of Evidence 90.403, 90.408,
90.801, and 90.802.
5 Health Insurance Policy Availability.
That Defendants not be permitted to mention, infer, or elicit testimony that Plaintiff had health
insurance at the time of the incident and that some of her medical bills were paid by health
insurance and/or that Plaintiffs medical bill summary presented to the jury in this matter should
only reflect the health insurance lien amount and not the full billed amounts. See Goble v.
Frohman, 901 So. 2d 830 (Fla. 2005), Goble v. Frohman, 848 So. 2d 406 (Fla. 2d DCA 2003),
and Didonato v. Youth Investments of Davie, Inc., 870 So. 2d 206 (Fla. 4th DCA 2004).
6 Full Medicals.
That Defendants not be permitted to mention, infer, or elicit testimony that Plaintiffs past and/or
future medical expenses have been and/or will be paid by health insurance and/or at a lower rate
of reimbursement under health insurance. See, Rollins v. Pizarelli, 761 So. 2d 294 (Fla. 2000)
and USAA Cas. Ine. Co. v. McDermott, 929 So. 2d 1114 (Fla. 2d DCA 2006).
7
Reference to Prior Accidents/Incidents/Falls.
Defendants should not be permitted to mention, infer, or elicit testimony regarding any prior
accidents/incidents/falls and/or any Worker’s Compensation incident that involved the Plaintiff.
Prior accidents/incidents/falls of Plaintiff, that occurred in a different location before the accident
at issue and do not involve any of the same areas of bodily injury alleged to have been injured
and/or aggravated by the accident at issue is improper propensity evidence, which has no
relevance to any material fact and said evidence is unfairly prejudicial, leads to confusion of
issues and improperly misleads the jury. See, Florida Rules of Evidence 90.403 and 90.404(2)(a),
and Smith v. Hooligan’s Pub and Oyster Bar, Ltd. 753 So. 2d 596 (Fla. 3d DCA 2000).
8 Reference To Subsequent Accidents/Incidents/Falls
Defendants should not be permitted to mention, infer, or elicit testimony regarding a subsequent
accident/incident/falls or Worker’s Compensation claims that took place subsequent to the
accident at issue against the Plaintiff. Such testimony is irrelevant and immaterial and is
therefore inadmissible. See Florida Rules of Evidence 90.402. Furthermore, any probative value
that the evidence may contain will be “substantially outweighed by the danger of unfair
prejudice, confusion of issues,” and improperly mislead the jury. See Florida Rules of Evidence
90.403.
9 Plaintiff’s Prior Lawsuits.
Defense counsel should not be permitted to discuss and/or mention that the Plaintiff and any
other member of the Plaintiff's family has been a party to a prior lawsuit. See Zabner v. Howard
Johnson’s Inc., 227 So. 2d 543 (Fla. 4th DCA 1969); Colvin v. Williams, 564 So. 2d 1249 (Fla.
4th DCA 1990), and Florida Rule of Evidence 90.403.
10. Impeaching Witnesses.
That defense counsel be prohibited from impeaching witnesses from the testimony of other
witnesses as said method is improper impeachment and impermissible hearsay. See Florida
Rules of Evidence 90.608, 90.801, and 90.802.
11. Reference to psychological or psychiatrist counseling.
Defense counsel should not be permitted to discuss, mention and/or refer to any reports of
psychological or psychiatric counseling concerning Plaintiff. This information is neither relevant
nor material to any claim presented in this case.
12. Plaintiff’s Litigiousness.
Any reference, directly, indirectly, or in any manner whatsoever to Plaintiff's prior lawsuits,
claims, accidents, or similar to the amount of any prior settlement or judgement. A Plaintiff's
character as being litigious is certainly not a proper issue in a later case. Zabner_v. Howard
Johnson’s Inc., 227 So. 2d 543 (Fla. 4th DCA 1960); Colvin v. Williams, 564 So. 2d 1249 (Fla.
Ath DCA 1990); Zenchak v. Kaeufer, 612 So. 2d 725 (Fla. 4th DCA 1993) (if injuries are similar
to first accident, Plaintiff may be properly cross-examined on that issue). The amount of a
settlement or judgement for a prior injury in admissible because it is clearly irrelevant to the
issues being tried in this case. Leslie v. Higgason, 779 So. 2d 470 (Fla. 2d DCA 2000).
12a. Prior/Subsequent Civil Claims.
a. That Plaintiff has had any prior or subsequent civil accident claims and/or
lawsuits based on irrelevance. Kelly v. Mutnich, 481 So. 2d 999 (Fla. 4th DCA 1986); Zabner v.
H oward Johnson’s Inc., of Fla., 227 So. 2d 543 (Fla. 4th DCA 1969); Donahoe v. Albertson’.
Inc., 472 So. 2d 482 (Fla. 4th DCA 1985); State Farm Fire & Cas. Co. v. Pettigrew, 884 So. 2d
191 (Fla. 2d DCA 2004).
b The only purpose and obvious effect of Defendants making mention of
any prior or subsequent litigation would be to prejudice the minds of the jurors against Plaintiff
by improperly and unjustifiably suggesting that Plaintiff is litigious. The prejudicial value of
such testimony will far outweigh any possible probative value for the jury’s determination and
thus should not be discussed during trial. The prohibition of adducing such information should
also extend to the exclusion of impairment ratings, deposition testimony and any other evidence
that would reveal prior litigation. Zabner, 227 So. 2d at 543; Colvin v. Williams, 564 So. 2d
1249 (Fla. 4th DCA 1990); Zenchak v. Kaeufer, 612 So. 2d 725 (Fla. 4th DCA 1993).
13. Collateral Source Evidence Prohibited.
That Plaintiff has received, will receive, or will become entitled to receive benefits of any kind or
character from any collateral source, including, but not limited to the following:
a. Benefits from collateral insurance coverage;
b Services furnished without charge;
Cc. Medicare or Medicaid benefits; Winston Towers Associates v. DeCarlo
481 So. 2d 1261 (Fla. 3d DCA 1986);
d HRS benefits;
e. Welfare, food stamps or other government or charitable benefits; Williams
v. Pincombe, 309 So. 2d 10 (Fla. 4th DCA 1975); Parker v. Hoppock, 695 So. 2d 424 (Fla. 4th
DCA 1997).
f. Worker’s compensation benefits, Burner v. Caterpillar, Inc. 627 So. 2d 46
(Fla. Ist DCA 1993); Sosa v. Knight-Ridder Newspaper, 435 So. 2d 821 (Fla. 1983); and Kreitz
v. Thomas, 422 So. 2d 1051 (Fla. 4th DCA 1982).
8. Past and future social security benefits, or social security disability
benefits.
h, Americans with Disability Act.
1, Any reference to collateral source benefits payable or paid to the Plaintiff.
Garriga v. Guerra, 753 So. 2d 146 (Fla. 3d DCA 2000); Florida Physicians Insurance Reciprocal
v. Stanley, 452 So. 2d 514 (Fla. 1984).
14. Collateral Sources-past.
Any mention, suggestion, or evidence of collateral sources payments received by Plaintiff,
whether from health insurance, disability insurance or other source. Fla. Stat. 768.76; Benton v.
CSX Transportation, 898 So. 2d 243 (Fla. 4th DCA 2005); Sheffield v. Superior Insur. Co., 800
So. 2d 197 (Fla. 2001); Gormely v. GTE Products Corp., 487 So. 2d 455 (Fla. 1991).
15. Collateral Sources - future.
Any mention, suggestion, or evidence of collateral source payments, which may be due to
Plaintiff in the future. White v. Westlund, 624 So. 2d 1148 (Fla. 4th DCA 1993); Allstate Insur.
Co. V. Rudnick, 706 So. 2d 389 (Fla. 4th DCA 1998); Walker v. Jeep corp., 528 So. 2d 1203
(Fla. 4th DCA 1988); Measom v. Rainbow Connection Preschool, Inc., 568 So. 2d 123 (Fla. 5th
DCA 1990).
16. The Plaintiff is Entitled to the Right to Disclose Full (Gross) Medical Costs at
Trial.
Any attempt by the Defense to introduce evidence of payments from collateral sources is strictly
prohibited and inadmissible. Nationwide Mutual Fire Insurance Company v. Harrell, 53 So. 3d
1084, 1086 (Fla. Ist DCA 2011) (citing Damages in Tort Actions ss17 (1988)). However, when a
Plaintiff has private health insurance, the Plaintiff is “entitled to introduce into evidence (and to
request from the jury) the gross amount of her medical bills,” rather than the lesser amount paid
by the Plaintiff's private health insurer “in full settlement of medical bills.” Durse v. Henn, 68
So. 3d 271, 277 (Fla. 4th DCA 2011) (holding that trial court erred by excluding Plaintiff's
medical bills showing full amount of the charges) (citing Goble v. Frohman, 848 So. 2d 406, 410
(Fla. 2d DCA 2003) (relying on Gormley v. GTE Prods. Corp.), approved on other grounds, 901
So. 2d 830 (Fla. 2005).
17. Hearsay Within Hearsay.
Any documents, reports, statements or other evidence contained within evidence which is
otherwise admissible under the business records exception to the hearsay rule (i.e., hearsay
within hearsay). Fla. Stat. 90.805; Neeley v. State, 883 So. 2d 861 (Fla. Ist DCA 2004).
18. Innuendos About Discovery.
Any suggestions, arguments or comment that Plaintiffs have failed to provide Defendants with
all required discovery, or any suggestion that Plaintiffs have not engaged in good faith discovery
or have withheld or failed to produce any document or other material to which defendants claim
to be entitled. If Defendants believe this to be true, it should be taken up with the Court before
trial. Fla. Stat. 90.401; 90.402; 90.403.
19. Discovery Objections.
Any reference that objections have been made by Plaintiffs to discovery requests or during any
of the depositions taken in this case. Fla. Stat. 90.401; 90.402; 90.403.
20. Uncalled Witnesses.
Stating, suggesting, or implying that some witness or person was not called by Plaintiffs to
testify unless it is first established that the person who was not called is under the direction and
control of Plaintiffs or is available for trial. Fino v. Nodine, 646 So. 2d 746 (Fla. 4th DCA 1994);
Fla. Stat. 90.401; 90.402; 90.403. Or challenging opposing counsel to tell the jury why certain
witnesses did not give testimony, or any reference to what uncalled witnesses would have
testified to if called. Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989).
21. Suggestion of Burden on or Punishment of Defendants.
Any suggestion or mention that a financial award to Plaintiff against Defendants would create a
financial burden on Defendants. Samuels _v. Torres, 29 So. 3d 1193 (Fla. Sth DCA 2010);
Padrino v. Resnick, 615 So. 2d 698 (Fla. 3d DCA 1992). Any discussion or suggestion that the
verdict would punish the Defendants. Erie Insur. Co. v. Bushy, 394 So. 2d 228 (Fla. Sth DCA
1981); Murray-Ohio Mfg. Co. v. Patterson, 385 So. 2d 1035 (Fla. Sth DCA 1980); Pierce v.
Smith, 301 So. 2d 805 (Fla. 2d DCA 1974).
22. Impact on Court System.
Any Reference to or suggestion about crowded courtrooms or dockets and attempts to imply that
this case is the type of case that causes back logs or delays in the court system. Stokes v. Wet ‘n
Wi ild, Inc., 523 So. 2d 181 (Fla. Sth DCA 1988).
23. Insurance Crisis or Rates.
Any mention or suggestion of the effect that a judgment in this case (or in cases in general)
would have upon insurance rates or premiums and any mention or suggestion of a so called
“insurance crisis.” Davidoff v. Segert, 551 So.2d 1274 (Fla. 4th DCA 1989); Melara v. Cicione,
712 So. 2d 429 (Fla. 3d DCA 1998).
24. Suggested Amount of Award.
Suggesting or arguing that counsel for Plaintiffs always asks for many times more than they
expect to receive. Hartford Accident and Indemnity Co. v. Ocha, 472 So. 2d 1338 (Fla. 4th DCA
1985).
25. Bolstering by Defense Counsel.
Any assertion or suggestion by defense counsel of personal knowledge of the facts, stating
personal opinion, or opining as to the credibility of witnesses. Silva v. Nightingale, 619 So. 2d 4
(Fla. Sth DCA 1993).
26. Court Ordered Medical Exam.
Any reference that the “CME” Doctor, and his examination of and report on Plaintiff, as
“independent” or any identification of CME or was appointed by the court. The examination and
report should be referred to as a “compulsory medical examination.” McGarrah v. Bayfront
Medical Center, 889 So. 2d 923 (Fla. 2d DCA 2004); Fla. R. Civ. P. 1.360.
27. Confining CME Doctor to Written Report.
The testimony of Dr. Mark Lonstein should be confined to the matters contained within his
written report. Fla. R. Civ. P. 1.360; Suarez-Burgos v. Morham, 745 So. 2d 368 (Fla. 4th DCA
1999); Pipkin v. Hamer, 501 So. 2d 1365 (Fla. 4th DCA 1987); Griefer v. DiPietro, 708 So. 2d
666 (Fla. 4th DCA 1998); contra Wax v. Tenet Health System Hospitals, Inc., 955 So. 2d 1 (Fla.
4th DCA 2006). Recently, in Cascanet v. Allen, the Court held that once a CME doctor reports
that a “Plaintiff was injured and that his pain was likely casually related”’ to the car accident at
issue, the CME doctor count not then later at trial “opine that there were other possible causes of
the pain.” Cascanet v. Allen, 83 So. 3d 759 (Fla. Sth DCA 2011). CME reports must list all
major conclusions of the examining expert, and all testimony at trial must be confined to the
conclusions found in the written CME report.
28. Limiting Expert Opinion.
Opinions from an expert who is not qualified to testify about matters that are not within his or
her realm of expertise or particular field of practice. A person offered as an expert must be
demonstrated to have some expertise in the particular field in which he is testifying about. Sea
Fi resh Frozen Products, Inc. V. Abdin, 411 So. 2d 218 (Fla. 5th DCA 1982). In order to qualify
as an expert in a given area, a witness must show that he has acquired special knowledge of
subject matter by either education, training or experience. Kelly v. Kinsey, 362 So. 2d 402 (Fla.
Ist DCA 1978).
29. Expert Criticism,
Any reference, directly, indirectly, or in any manner whatsoever, by Defendants’ expert
witnesses to the qualifications and/or credibility of other experts or their opinions. Carver_v.
Orange County, 444 So. 2d 452 (Fla. 5th DCA 1983); Schwab v. Tolley, 345 So. 2d 747 (Fla.
4th DCA 1977); and Feller v. State, 637 So. 2d 911 (Fla. 1994).
30. Doctors Reputation.
Any reference to the Defendants’ doctor’s (or defense doctor’s) good reputation. If character is
not directly an issue (such as in defamation case), evidence of character or reputation is
immaterial and inadmissible. Fla. Stat. § 90.404.(2); Stauf_v. Holden, 94 So. 2d 361 (Fla. 1957);
General Telephone Co. v. Wallace, 417 So. 2d 1022 (Fla. 2d DCA 1982); Pandula v. Fonseca.
199 So. 358 (Fla. 1940).
31. Bolstering Opinions of Experts.
That the defense experts not refer to or attempt to bolster their opinions by reference to studies,
publications, tests, or other authoritative texts. Costanzo v. Agency Rent-A-Car, Inc., 560 So. 2d
265 (Fla. 4th DCA 1990). Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989);
Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987); and Medina v. Variety Children’
Hospital, 438 So. 2d 138 (Fla. 3d DCA 1983).
32. Inadmissible Hearsay Through Defense Experts.
That no defense expert attempt to introduce inadmissible hearsay evidence. It is improper for an
expert witness to relate hearsay statements or the contents of hearsay documents to the jury or to
otherwise serve as a conduit for the purpose of placing inadmissible evidence before the jury.
Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997); 3M Corp. v. Brown, 475 So. 2d 994 (Fla.
Ist DCA 1985); Bunyak v. Yancy, 438 So. 2d 891 (Fla. 2d DCA 1983).
33. Personal Opinion of CME doctor about credibility of Plaintiff.
The CME doctors or any witnesses should be limited from stating personal opinions about the
Plaintiff. It is error to state personal opinions about the merits of the case or credibility of the
Plaintiff. Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. Ist DCA 1989),
B ue Grass Shows, Inc. v. Collins, 614 So. 2d 626 (Fla. Ist DCA 1993); rev. den. 624 So.2d. 264
(Fla. 1993); Nelson v. Reliance Insurance Co., 368 So.2d 361 (Fla. 4th DCA 1978). See also:
Feller v. State, 637 So. 2d 911 (Fla. 1994) (error for expert to state belief that victim was telling
truth); Tingle v. State, 536 So. 2d 202 (Fla. 1988) (error to permit expert to testify she believed
victim). Hitchcock v. State, 636 So. 2d 572 (Fla. 4th DCA); Davis v. State, 527 So. 2d 962, 963
(Fla. 5th DCA 1988) (error to permit expert to testify that victim was frank).
34. Malingerer or Exaggerator for Secondary Gain.
The defense expert cannot testify that there was evidence of “symptom magnification” or
malingering because compulsory medical examination reports are made solely for the purpose of
litigation and that they are inherently untrustworthy, they should not be admitted into evidence
under the business records exception to the hearsay rule, nor should any expert witness testify as
to the truthfulness of a witness. McElroy v. Perry, 753 So. 2d 121 (Fla. 2d DCA 2000); Page v.
Zordan, 564 So. 2d 500 (Fla. 2d DCA 1990); General Tel. Co. v. Wallace, 417 So. 2d 1022 (Fla.
2d DCA 1982).
35. Alleged Drug or Alcohol Use by Plaintiff.
Any reference directly, indirectly, or in any manner whatsoever to alleged drug or alcohol use
by Plaintiff prior to or after the incident at issue in this case. Fla. Stat. §90.403; Shaw v. Jain, 914
So. 2d 458 (Fla. Ist DCA 2005) (and the cases cited therein); Nicholas v. Benton, 718 So. 2d 925
(Fla. Ist DCA 1998); Harless v. Boyle-Midway Division, American Homes Products, 594 F. 2d
1051 (5th Cir. 1979), cited by Duffell v. South Walton Emergency Services, Inc., 501 So. 2d
1352 (Fla. Ist DCA 1987); Botte v. Pomeroy, 497 So. 2d 1275 (Fla. 4th DCA 1986) (issue of
Plaintiff's drug use relevant only to issue of Plaintiffs future earning capacity in a personal
injury claim; however, evidence of drug use, if any, must relate to relevant issues and cannot be
used solely to create prejudice against the plaintiff). See also Edwards v. State, 548 So. 2d 656
(Fla. 1989) (evidence of drug use or addiction is not admissible to attack credibility unless there
is an express showing that the drug use effected the witness’ ability to observe or recount the
matters testified to).
36. Defendants’ Lack of Ability to Pay.
Any evidence or reference to Defendants’ ability or lack to pay. Williams v. Pincombe, 309 So.
2d 10 (Fla. 4th DCA 1975). Samuels v. Torres, 29 So. 3d 1193 (Sth DCA 2010); see # 21 above
37. Trial Lawyers.
Any reference directly, indirectly, or in any manner whatsoever, to trial lawyers in general and
in any intimation that frivolous lawsuits generated by them are major ill of our society. Bell
South Human Resources Administration v. Colatarci, 641 So. 2d 427 (Fla. 4th DCA 1994).
38. Attorney Referral.
That Plaintiff was referred to any physician or medical provider by his counsel or that Plaintiff
was referred to counsel by a physician or medical provider. Burt v. GEICO, 603 So. 2d 125 (Fla.
2d DCA 1992).
39. Improper Stacking of Inferences.
Any attempts to establish the facts of this case by impermissible stacking inference upon
inference. Voelker v. Combined Insur. Co. of America, 73 So. 2d 403 (Fla. 1954); Nielsen _v.
City of Sarasota, 117 So. 2d 731 (Fla. 1960); Marlo Investments, Inc. v. Verne, 227 So. 2d 58
(Fla. 4th DCA 1969); Green House, Inc. v. Thiermann, 288 So. 2d 566 (Fla. 2d DCA 1974);
Hughes _v. Miktchell, 617 So. 2d 767 (Fla. Ist DCA 1993); Girdley Construction Co. v.
Oo hmstede, 465 So. 2d 594 (Fla. Ist DCA 1985).
40. Jury Instruction Paraphrasing by Defendants,
That the Court prohibit and jury instruction paraphrasing or expanding the definition of
negligence continued in the standard jury instruction. Sierra v. Winn Dixie Store, 646 So. 2d 264
(Fla. 3d DCA 1994).
Al. Results of a Claim against the Defendants.
That no mention be made of the effect or results of a claim, suit or judgment upon insurance
rates, premiums, or charges, either generally or as particularly applied to the Defendants, as a
result of this lawsuit or any other lawsuit. Davidoff v. Segret, 551 So. 2d 1274 (Fla. 4th DCA
1989).
42. Improper Statements to a Jury.
Encouraging the jury to “send a message” by its verdict to act as the guardian of the community
or to use its verdict to punish the Plaintiff. Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517
(Fla. 3d DCA 1985); Florida Crushed Stone Co. v. Johnson, 546 So. 2d 1102 (Fla. Sth DCA
1989); Brumage v. Plummer, 502 So. 2d 966 (Fla. 3d DCA 1987); Davidoff v. Segret, 551 So.
2d 1274 (Fla. 4th DCA 1989); and Sacred Heart Hospital of Pensacola v. Stone, 650 So. 2d 676
(Fla. Ist DCA 1995).
43. Doctor’s alleged malpractice or violations or regarding medical treatment,
Any and all alleged malpractice or violations of the standard of care by treating doctor or and
other medical professionals regarding medical treatment rendered to Plaintiff, and any opinions
relating to treatment being “inappropriate,” performed in an “inappropriate manner,” or that any
of the Plaintiff's symptoms in the past or in the future are the result of such inappropriate
treatment.” Dungan v. Ford, 632 So. 2d 159 (Fla. Ist DCA 1994); also, any expert or witness
commenting on the credibility or reputation of any other expert witness. Ecker_v. National
Roofing of Miami, Inc., Inc. 201 So. 2d 586 (Fla. 3d DCA 1967); Craver v. Orange County,
supra; any of the Plaintiff's treating physicians have committed medical malpractice or medical
negligence. Stuart v. Hertz, 351 So. 2d 703 (Fla. 1977); Farina v. Zann, 609 So. 2d 629 (Fla. 4th
DCA 1992); Dade County Medical Association v. Hills, 372 So. 2d 117 (Fla. 3d DCA 1979);
Gonzalez v. Leon, 511 So. 2d 606 (Fla. 3d DCA 1987); and any comment by one expert on the
opinion of another expert. Carlton v. Bielling, 146 So. 2d 915 (Fla Ist DCA 1962); Carver v.
Orange County, 444 So. 2d 452 (Fla. 5th DCA 1984); Schwab v. Tolley, 345 So. 2d 747 (Fla.
4th DCA 1977).
44. Cannot Say Surgery Was Not Necessary by Defense CME Doctor.
Any questioning or debating as to why the treating surgeon opined that the Plaintiff is a surgical
candidate. It is improper for an expert to second guess a treating physician in this fashion and in
this type of trial which is tantamount to accusing the treating doctor of wrongdoing, medical
battery or the like. Additionally, such evidence is more prejudicial then probative. The standard
“an expert may properly explain his or her opinion on an issue in controversy by outlining the
claimed deficiencies in the opposing expert’s methodology so long as the expert does not attack
the opposing expert’s ability, credibility, reputation, or competence.” Defendants’ counsel and
witness should so be limited. See, Network Publications, Inc. v. Bjorkman, 756 So.2d 1028 (Fla.
5th DCA 2000); Dugan v. Ford, 632 So. 2d 159 (Fla. Ist DCA 1994); Stuart v. Hertz, 351 So. 2d
703 (Fla. 1977); Farina v. Zann, 609 So. 2d 629 (Fla. 4th DCA 1992); Davidson v. Gaillard, 584
So. 2d 71 (Fla. Ist DCA 1991); Dade County Medical Association v. Hills, 372 So. 2d 117 (Fla.
3d DCA 1979).
45. Improper Non-disclosed Opinions at Trial.
The defense expert is not permitted at trial to express any opinion that was not preciously
disclosed in his deposition nor is the defense permitted to introduce any evidence obtain after the
discovery deadline date. Grau v. Branham, 626 So. 2d 1059 (Fla. 4th DCA 1993); Office Depot.
Inc. v. Miller, 584 So. 2d 587 (Fla. 4th DCA 1991); Dep’t of Health & Rehabilitative Services v.
J.B., 675 So. 2d 241 (Fla. 4th DCA 1996); Binger v. King Pest Control, 401 So. 2d 1310 (Fla.
1981).
46. Improper closing Argument by Defense Reference Plaintiffs Treating
Doctors.
That the Plaintiff's doctor prostitutes himself for the benefit of lawyers, that the doctor and/or
lawyer have orchestrated the entire case or created a scheme, and any reference to other case in
which the defense counsel has been involved with the same lawyers or doctors involved in the
instant case. Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993).
47. Improper Defense Attorney Closing Reference Plaintiff.
a. That the Plaintiff or other patients involved in cases have a hard time
getting well or better. Johnson v. Canteen Corp., 528 So. 2d 1364 (Fla. 3d DCA 1988).
b That the Plaintiff is malingering or otherwise attempting to make some
type of financial or secondary gain. Parker v. Happock, 695 So. 2d 424 (Fla. 4th DCA 1997).
Cc. That the Plaintiff received welfare, social security or public health
benefits. Id.
48. Improper Closing Comments by Defense Attorney Reference
Witnesses/Jurors.
Any mention or attempt to pass judgment on witnesses by using terms such as “a good soldier”
or “this joker.” Any comment or inference that counsel for the Plaintiff is treating the jurors like
“fools” or “idiots.” Walt Disney World Co. V. Blalock, 640 So. 2d 1156 (Fla. Sth DCA 1994).
49. Defense Closing “Lottery”.
Defendants shall not be able to refer to Plaintiff's lawsuit as an attempt to win the “Florida
Lottery” or any other self-serving and highly prejudicial remark.
50. Improper Defense Attorney Comments Reference Plaintiff and Attorney.
Degrading or humiliating the Plaintiff(s) or his/her/their counsel by referring to him/her/them as
“greedy”, or “liars”, or “ridiculous”, or by demeaning Plaintiffs lawyers. Ryan v. State, 457 So.
2d 1084 (Fla. 4th DCA 1984); Kendall Skating Ctrs. v. Martin, 448 So. 2d 1137 (Fla. 3d DCA
1984); Hartford Acc.& Indem. Co. v. Ocha, 472 So. 2d 1338 (Fla. 4th DCA 1985).
Sl. Defense Attorney Unethical Comments Referring Plaintiffs Attorney/
Plaintiffs Medical Doctors Perjury/Fraud.
Accusing Plaintiffs medical experts or perjury or accusing Plaintiff's counsel of fraud or
unethical conduct. Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993); Kaas v. Atlas Chem.
Co., 623 So. 2d 525 (Fla. 3d DCA 1993). Challenging Plaintiff's counsel to explain to the jury
why it did not call certain witnesses, or why deposed witnesses were not at trial, or making other
references to matters outside the record. Riggins v. Mariner Boat Works, 545 So. 2d 430 (Fla. 2d
DCA 1989).
52. Defendants Attorney Alluding to Matters Outside of Record/Asserting
Personal Opinions.
Alluding to any matter that is not relevant to the case or will not be supported by the evidence,
asserting personal knowledge of the facts, or stating personal opinions regarding the case or the
credibility of the witnesses, all of which is contrary to Rule 4-3-4(e) of the Rules Regulating The
Florida Bar. Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993); Schreier v. Parker, 415 So.
2d 794 (Fla. 3d DCA 1982).
53. Disability/Workers Compensation Benefits Inadmissible.
Evidence or receipt of disability and/or worker’s compensation benefits is not admissible to
rebut or impeach Plaintiffs testimony concerning his/her motivation and desire to return to work
after an accident. State Farm Mut. Auto Ins. Co. v. Gordon, 712 So. 2d 1138 (Fla. 3d DCA
1998).
54. Defendants Cannot Argue Non Party Liability.
Defendants cannot argue to the jury that this accident was caused or contributed to by any non-
parties, or place any non-parties on the verdict from for the purposes of apportionment of fault,
as the Defendants have not and cannot identify any such non-parties. Nash v. Wells Fargo Guard
S ervs., Inc., 678 So. 2d 1262 (Fla. 1996).
55. Surveillance.
Plaintiff requests the Court to instruct the Defendants and its attorney to refrain from using any
surveillance of the Plaintiff. No surveillance information was ever disclosed.
56. Criminal Record.
Plaintiff requests the Court instruct the Defendants, its attorneys, its witnesses and its experts not
to mention or bring before the jury, either directly or indirectly, or at any time during the trial,
and to exclude from evidence an reference to Plaintiffs criminal record including, but not
limited to, any and all convictions other than those permitted by Section 90.610 of the Florida
Evidence Code.
37. Defendants are Sorry.
Any reference or suggestion that defendants are sorry for the accident in question, because such a
suggestion is an improper appeal for jury sympathy toward the defendants, and invites the jury to
disregard it’s duty to apply the legal measure of damages by awarding such damages as the
evidence shows have been caused by such Defendants’ misconduct and base a verdict on
improper considerations.
58. Prohibits Defense Attorne’ uestion Reference Plaintiff Obtaining an
Attorney.
Defense counsel should be precluded from eliciting testimony, discussing, mentioning or
implying anything in regard to when the Plaintiff(s) first sought the assistance of counsel. Such
questions or argument is irrelevant to the issue being litigated and no basis exists for Defendants
to prove Plaintiff's litigiousness. Rules 402, 403 and 404 of the Federal Rules of Evidence would
bar such irrelevant and prejudicial statements. To this end, Florida courts have routinely barred
such comments as improper. See Watson v. Builders Squire, Inc., 563 So. 2d 721 (Fla. 4th DCA
1990). Lines of questioning regarding when claimants first sought legal assistance are also
unethical. The Preamble to the Rules of Professional Conduct, which discusses a lawyer’s
responsibilities, including the goal of encouraging people to seek legal advice. Moreover, the
Comment to Rules of Professional Conduct, Rule 4-1.6, Confidentiality of Information, states
that a lawyer’s obligation to hold inviolate confidential information of the client not only
facilitates the full development of facts essential to proper representation of the client but also
ncourages people to seek early legal assistance so they can quickly determine whether there has
been a compensable injury and so that immediate steps can be taken to protect the client’s rights
under the law. In this case, while there is no direct communication to a lawyer at stake, the mere
argument that the Plaintiff's motives should be considered suspect simply because he seeks early
legal advice is contrary to the Rules’ goal of encouraging people to seek early legal assistance.
One of the reasons people should seek early legal advice is so that a prompt investigation can be
made before conditions change or witnesses become lost or lose memory of the events. To allow
a line of questioning or argument chastising a Plaintiff for seeking counsel early would be to
discourage the early retention of counsel encouraged by the rules and to encourage the exact
opposite response: lay people will delay the retention of counsel and thereby prejudice their own
cases. Lastly, if the referral and the timing of hiring an attorney is made known to the jury,
Plaintiff will be required to explain his/her actions. Specifically, Plaintiff's testimony will
include, among other things, that at the time of the accident Plaintiff was unaware whether
his/her insurance or Defendants’ insurance was primary to cover her medical bills and that
Plaintiff was concerned about being dealt with fairly by Defendants’ insurance carrier. This
collateral issue could easily become a focal point of the trial and would cause the jury to learn of
issues that are generally limited from their consideration including the existence of Defendants’
liability insurance.
59. Prohibits Defense Opening Unreasonable Demands of Plaintiff.
Defendants shall not be permitted in any manner to suggest to the jury this case is being tried
because of an unreasonable demand by Plaintiff. For example, Defendants should not be
permitted in response to a damages claim presented in opening statement, to advice the jury, “
Now we know why we are here.” Such a statement would violate the spirit and intent of litigant’s
right of access to Court and it should be excluded pursuant to section 90.403, Florida Statutes.
60. Prohibit Defense Questions re Lack of Inju of other Occupants
Defendants shall not be permitted to question or raise the issue that no other occupants of the
vehicle Plaintiff was in, or the occupants of any other vehicle involved in the crash, did not
sustain any injury. Such evidence would be prejudicial to Plaintiff. The other occupants, since
they were sitting in different locations and subject to different and varying forces, would not be
competent evidence that the Plaintiff should not have been injured. See J. B. Hunt Transport, Inc.
V. General Motors Corp., 243 F. 3d 441 (8th Cir. 2001).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 28, 2023, I electronically filed the foregoing with
the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to
the following: Frank A. Miller, Esq. (fmiller@cagmil.com; llaman@cagmil.com;
mirabal@cagmil.com).
/s/ D. Graham Anderson
D. Graham Anderson, Esq.
Florida Bar No.: 62443
Bogin, Munns & Munns, P.A.
1390 N. Hancock Road, Suite 201
Clermont, FL 34711
(352)243-8981
Attorney for Plaintiff
ganderson@boginmunns.com
scherr@boginmunns.com
quintana@boginmunns.com
bmmservice@boginmunns.com
Preview
Filing # 169787126 E-Filed 03/28/2023 11:10:13 AM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA CASE NUMBER: 2021 CA 1640 JOHN JOSEPH CONNOLLY, Plaintiff, vs. JOHN ROBERT KOVAL and J&J ICE, INC., Defendants. / PLAINTIFF’S MOTION IN LIMINE COMES NOW, Plaintiff, JOHN JOSEPH CONNOLLY, by and through the undersigned attorney, and moves this Court for an Order prohibiting any deposition or live testimony, argument of counsel, evidence or other reference to the following issues during voir dire, opening, or any other phase of trial: 1 Reference to Plaintiff’s Law Firm. Unless, during voir dire questioning, a juror indicated that he or she knows or is otherwise familiar with either Plaintiff's counsel, defense counsel should not be permitted to discuss the fact that Plaintiff's counsel is with a firm. If no jurors indicate that they know Plaintiff's counsel, then they certainly would not know that they are with the firm of Plaintiff. Therefore, any mention of this would serve no relevant purpose and would only be offered to influence members of the venire. FILED: LAKE COUNTY, GARY J. COONEY, CLERK, 03/28/2023 11:18:12 AM 2 Retention of Plaintiff’s Attorney. Defense counsel should not be permitted to introduce any evidence or discuss when Plaintiff contacted their personal counsel. This information is irrelevant and prejudicial. Watson v. Builders Square, Inc., 563 So. 2d 721 (Fla. 4th DCA 1990). 3 Income Tax. Defense counsel should not be permitted to discuss the fact that any recovery by Plaintiff would not be subject to federal income tax. See Comfort Makers, Inc. v. Kenton, 515 So. 2d 1384 (Fla. 5th DCA 1987); Good Samaritan Hospital Assoc., Inc. v. Saylor, 495 So. 2d 782 (Fla. 4th DCA 1986); and Osteen v. Freitas, Case No. 84-1864, Slip Opinion (Fla. 5th DCA). 4 Auto Insurance Policy Availability. That defense counsel should not be allowed to discuss the availability of automobile insurance for the Plaintiff in this matter as any such testimony or information is irrelevant, wholly prejudicial and violative of Florida’s non joinder statute. Defense counsel should also not be permitted to make any mention of or elicit testimony that Defendants have offered any monies to Plaintiff as this is an offer to compromise and not admissible. Similarly, defense counsel should make no mention of anything that was provided to the defense in this matter and/or said by Plaintiffs counsel at the mediation of this matter. See Florida Rules of Evidence 90.403, 90.408, 90.801, and 90.802. 5 Health Insurance Policy Availability. That Defendants not be permitted to mention, infer, or elicit testimony that Plaintiff had health insurance at the time of the incident and that some of her medical bills were paid by health insurance and/or that Plaintiffs medical bill summary presented to the jury in this matter should only reflect the health insurance lien amount and not the full billed amounts. See Goble v. Frohman, 901 So. 2d 830 (Fla. 2005), Goble v. Frohman, 848 So. 2d 406 (Fla. 2d DCA 2003), and Didonato v. Youth Investments of Davie, Inc., 870 So. 2d 206 (Fla. 4th DCA 2004). 6 Full Medicals. That Defendants not be permitted to mention, infer, or elicit testimony that Plaintiffs past and/or future medical expenses have been and/or will be paid by health insurance and/or at a lower rate of reimbursement under health insurance. See, Rollins v. Pizarelli, 761 So. 2d 294 (Fla. 2000) and USAA Cas. Ine. Co. v. McDermott, 929 So. 2d 1114 (Fla. 2d DCA 2006). 7 Reference to Prior Accidents/Incidents/Falls. Defendants should not be permitted to mention, infer, or elicit testimony regarding any prior accidents/incidents/falls and/or any Worker’s Compensation incident that involved the Plaintiff. Prior accidents/incidents/falls of Plaintiff, that occurred in a different location before the accident at issue and do not involve any of the same areas of bodily injury alleged to have been injured and/or aggravated by the accident at issue is improper propensity evidence, which has no relevance to any material fact and said evidence is unfairly prejudicial, leads to confusion of issues and improperly misleads the jury. See, Florida Rules of Evidence 90.403 and 90.404(2)(a), and Smith v. Hooligan’s Pub and Oyster Bar, Ltd. 753 So. 2d 596 (Fla. 3d DCA 2000). 8 Reference To Subsequent Accidents/Incidents/Falls Defendants should not be permitted to mention, infer, or elicit testimony regarding a subsequent accident/incident/falls or Worker’s Compensation claims that took place subsequent to the accident at issue against the Plaintiff. Such testimony is irrelevant and immaterial and is therefore inadmissible. See Florida Rules of Evidence 90.402. Furthermore, any probative value that the evidence may contain will be “substantially outweighed by the danger of unfair prejudice, confusion of issues,” and improperly mislead the jury. See Florida Rules of Evidence 90.403. 9 Plaintiff’s Prior Lawsuits. Defense counsel should not be permitted to discuss and/or mention that the Plaintiff and any other member of the Plaintiff's family has been a party to a prior lawsuit. See Zabner v. Howard Johnson’s Inc., 227 So. 2d 543 (Fla. 4th DCA 1969); Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA 1990), and Florida Rule of Evidence 90.403. 10. Impeaching Witnesses. That defense counsel be prohibited from impeaching witnesses from the testimony of other witnesses as said method is improper impeachment and impermissible hearsay. See Florida Rules of Evidence 90.608, 90.801, and 90.802. 11. Reference to psychological or psychiatrist counseling. Defense counsel should not be permitted to discuss, mention and/or refer to any reports of psychological or psychiatric counseling concerning Plaintiff. This information is neither relevant nor material to any claim presented in this case. 12. Plaintiff’s Litigiousness. Any reference, directly, indirectly, or in any manner whatsoever to Plaintiff's prior lawsuits, claims, accidents, or similar to the amount of any prior settlement or judgement. A Plaintiff's character as being litigious is certainly not a proper issue in a later case. Zabner_v. Howard Johnson’s Inc., 227 So. 2d 543 (Fla. 4th DCA 1960); Colvin v. Williams, 564 So. 2d 1249 (Fla. Ath DCA 1990); Zenchak v. Kaeufer, 612 So. 2d 725 (Fla. 4th DCA 1993) (if injuries are similar to first accident, Plaintiff may be properly cross-examined on that issue). The amount of a settlement or judgement for a prior injury in admissible because it is clearly irrelevant to the issues being tried in this case. Leslie v. Higgason, 779 So. 2d 470 (Fla. 2d DCA 2000). 12a. Prior/Subsequent Civil Claims. a. That Plaintiff has had any prior or subsequent civil accident claims and/or lawsuits based on irrelevance. Kelly v. Mutnich, 481 So. 2d 999 (Fla. 4th DCA 1986); Zabner v. H oward Johnson’s Inc., of Fla., 227 So. 2d 543 (Fla. 4th DCA 1969); Donahoe v. Albertson’. Inc., 472 So. 2d 482 (Fla. 4th DCA 1985); State Farm Fire & Cas. Co. v. Pettigrew, 884 So. 2d 191 (Fla. 2d DCA 2004). b The only purpose and obvious effect of Defendants making mention of any prior or subsequent litigation would be to prejudice the minds of the jurors against Plaintiff by improperly and unjustifiably suggesting that Plaintiff is litigious. The prejudicial value of such testimony will far outweigh any possible probative value for the jury’s determination and thus should not be discussed during trial. The prohibition of adducing such information should also extend to the exclusion of impairment ratings, deposition testimony and any other evidence that would reveal prior litigation. Zabner, 227 So. 2d at 543; Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA 1990); Zenchak v. Kaeufer, 612 So. 2d 725 (Fla. 4th DCA 1993). 13. Collateral Source Evidence Prohibited. That Plaintiff has received, will receive, or will become entitled to receive benefits of any kind or character from any collateral source, including, but not limited to the following: a. Benefits from collateral insurance coverage; b Services furnished without charge; Cc. Medicare or Medicaid benefits; Winston Towers Associates v. DeCarlo 481 So. 2d 1261 (Fla. 3d DCA 1986); d HRS benefits; e. Welfare, food stamps or other government or charitable benefits; Williams v. Pincombe, 309 So. 2d 10 (Fla. 4th DCA 1975); Parker v. Hoppock, 695 So. 2d 424 (Fla. 4th DCA 1997). f. Worker’s compensation benefits, Burner v. Caterpillar, Inc. 627 So. 2d 46 (Fla. Ist DCA 1993); Sosa v. Knight-Ridder Newspaper, 435 So. 2d 821 (Fla. 1983); and Kreitz v. Thomas, 422 So. 2d 1051 (Fla. 4th DCA 1982). 8. Past and future social security benefits, or social security disability benefits. h, Americans with Disability Act. 1, Any reference to collateral source benefits payable or paid to the Plaintiff. Garriga v. Guerra, 753 So. 2d 146 (Fla. 3d DCA 2000); Florida Physicians Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984). 14. Collateral Sources-past. Any mention, suggestion, or evidence of collateral sources payments received by Plaintiff, whether from health insurance, disability insurance or other source. Fla. Stat. 768.76; Benton v. CSX Transportation, 898 So. 2d 243 (Fla. 4th DCA 2005); Sheffield v. Superior Insur. Co., 800 So. 2d 197 (Fla. 2001); Gormely v. GTE Products Corp., 487 So. 2d 455 (Fla. 1991). 15. Collateral Sources - future. Any mention, suggestion, or evidence of collateral source payments, which may be due to Plaintiff in the future. White v. Westlund, 624 So. 2d 1148 (Fla. 4th DCA 1993); Allstate Insur. Co. V. Rudnick, 706 So. 2d 389 (Fla. 4th DCA 1998); Walker v. Jeep corp., 528 So. 2d 1203 (Fla. 4th DCA 1988); Measom v. Rainbow Connection Preschool, Inc., 568 So. 2d 123 (Fla. 5th DCA 1990). 16. The Plaintiff is Entitled to the Right to Disclose Full (Gross) Medical Costs at Trial. Any attempt by the Defense to introduce evidence of payments from collateral sources is strictly prohibited and inadmissible. Nationwide Mutual Fire Insurance Company v. Harrell, 53 So. 3d 1084, 1086 (Fla. Ist DCA 2011) (citing Damages in Tort Actions ss17 (1988)). However, when a Plaintiff has private health insurance, the Plaintiff is “entitled to introduce into evidence (and to request from the jury) the gross amount of her medical bills,” rather than the lesser amount paid by the Plaintiff's private health insurer “in full settlement of medical bills.” Durse v. Henn, 68 So. 3d 271, 277 (Fla. 4th DCA 2011) (holding that trial court erred by excluding Plaintiff's medical bills showing full amount of the charges) (citing Goble v. Frohman, 848 So. 2d 406, 410 (Fla. 2d DCA 2003) (relying on Gormley v. GTE Prods. Corp.), approved on other grounds, 901 So. 2d 830 (Fla. 2005). 17. Hearsay Within Hearsay. Any documents, reports, statements or other evidence contained within evidence which is otherwise admissible under the business records exception to the hearsay rule (i.e., hearsay within hearsay). Fla. Stat. 90.805; Neeley v. State, 883 So. 2d 861 (Fla. Ist DCA 2004). 18. Innuendos About Discovery. Any suggestions, arguments or comment that Plaintiffs have failed to provide Defendants with all required discovery, or any suggestion that Plaintiffs have not engaged in good faith discovery or have withheld or failed to produce any document or other material to which defendants claim to be entitled. If Defendants believe this to be true, it should be taken up with the Court before trial. Fla. Stat. 90.401; 90.402; 90.403. 19. Discovery Objections. Any reference that objections have been made by Plaintiffs to discovery requests or during any of the depositions taken in this case. Fla. Stat. 90.401; 90.402; 90.403. 20. Uncalled Witnesses. Stating, suggesting, or implying that some witness or person was not called by Plaintiffs to testify unless it is first established that the person who was not called is under the direction and control of Plaintiffs or is available for trial. Fino v. Nodine, 646 So. 2d 746 (Fla. 4th DCA 1994); Fla. Stat. 90.401; 90.402; 90.403. Or challenging opposing counsel to tell the jury why certain witnesses did not give testimony, or any reference to what uncalled witnesses would have testified to if called. Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989). 21. Suggestion of Burden on or Punishment of Defendants. Any suggestion or mention that a financial award to Plaintiff against Defendants would create a financial burden on Defendants. Samuels _v. Torres, 29 So. 3d 1193 (Fla. Sth DCA 2010); Padrino v. Resnick, 615 So. 2d 698 (Fla. 3d DCA 1992). Any discussion or suggestion that the verdict would punish the Defendants. Erie Insur. Co. v. Bushy, 394 So. 2d 228 (Fla. Sth DCA 1981); Murray-Ohio Mfg. Co. v. Patterson, 385 So. 2d 1035 (Fla. Sth DCA 1980); Pierce v. Smith, 301 So. 2d 805 (Fla. 2d DCA 1974). 22. Impact on Court System. Any Reference to or suggestion about crowded courtrooms or dockets and attempts to imply that this case is the type of case that causes back logs or delays in the court system. Stokes v. Wet ‘n Wi ild, Inc., 523 So. 2d 181 (Fla. Sth DCA 1988). 23. Insurance Crisis or Rates. Any mention or suggestion of the effect that a judgment in this case (or in cases in general) would have upon insurance rates or premiums and any mention or suggestion of a so called “insurance crisis.” Davidoff v. Segert, 551 So.2d 1274 (Fla. 4th DCA 1989); Melara v. Cicione, 712 So. 2d 429 (Fla. 3d DCA 1998). 24. Suggested Amount of Award. Suggesting or arguing that counsel for Plaintiffs always asks for many times more than they expect to receive. Hartford Accident and Indemnity Co. v. Ocha, 472 So. 2d 1338 (Fla. 4th DCA 1985). 25. Bolstering by Defense Counsel. Any assertion or suggestion by defense counsel of personal knowledge of the facts, stating personal opinion, or opining as to the credibility of witnesses. Silva v. Nightingale, 619 So. 2d 4 (Fla. Sth DCA 1993). 26. Court Ordered Medical Exam. Any reference that the “CME” Doctor, and his examination of and report on Plaintiff, as “independent” or any identification of CME or was appointed by the court. The examination and report should be referred to as a “compulsory medical examination.” McGarrah v. Bayfront Medical Center, 889 So. 2d 923 (Fla. 2d DCA 2004); Fla. R. Civ. P. 1.360. 27. Confining CME Doctor to Written Report. The testimony of Dr. Mark Lonstein should be confined to the matters contained within his written report. Fla. R. Civ. P. 1.360; Suarez-Burgos v. Morham, 745 So. 2d 368 (Fla. 4th DCA 1999); Pipkin v. Hamer, 501 So. 2d 1365 (Fla. 4th DCA 1987); Griefer v. DiPietro, 708 So. 2d 666 (Fla. 4th DCA 1998); contra Wax v. Tenet Health System Hospitals, Inc., 955 So. 2d 1 (Fla. 4th DCA 2006). Recently, in Cascanet v. Allen, the Court held that once a CME doctor reports that a “Plaintiff was injured and that his pain was likely casually related”’ to the car accident at issue, the CME doctor count not then later at trial “opine that there were other possible causes of the pain.” Cascanet v. Allen, 83 So. 3d 759 (Fla. Sth DCA 2011). CME reports must list all major conclusions of the examining expert, and all testimony at trial must be confined to the conclusions found in the written CME report. 28. Limiting Expert Opinion. Opinions from an expert who is not qualified to testify about matters that are not within his or her realm of expertise or particular field of practice. A person offered as an expert must be demonstrated to have some expertise in the particular field in which he is testifying about. Sea Fi resh Frozen Products, Inc. V. Abdin, 411 So. 2d 218 (Fla. 5th DCA 1982). In order to qualify as an expert in a given area, a witness must show that he has acquired special knowledge of subject matter by either education, training or experience. Kelly v. Kinsey, 362 So. 2d 402 (Fla. Ist DCA 1978). 29. Expert Criticism, Any reference, directly, indirectly, or in any manner whatsoever, by Defendants’ expert witnesses to the qualifications and/or credibility of other experts or their opinions. Carver_v. Orange County, 444 So. 2d 452 (Fla. 5th DCA 1983); Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977); and Feller v. State, 637 So. 2d 911 (Fla. 1994). 30. Doctors Reputation. Any reference to the Defendants’ doctor’s (or defense doctor’s) good reputation. If character is not directly an issue (such as in defamation case), evidence of character or reputation is immaterial and inadmissible. Fla. Stat. § 90.404.(2); Stauf_v. Holden, 94 So. 2d 361 (Fla. 1957); General Telephone Co. v. Wallace, 417 So. 2d 1022 (Fla. 2d DCA 1982); Pandula v. Fonseca. 199 So. 358 (Fla. 1940). 31. Bolstering Opinions of Experts. That the defense experts not refer to or attempt to bolster their opinions by reference to studies, publications, tests, or other authoritative texts. Costanzo v. Agency Rent-A-Car, Inc., 560 So. 2d 265 (Fla. 4th DCA 1990). Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989); Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987); and Medina v. Variety Children’ Hospital, 438 So. 2d 138 (Fla. 3d DCA 1983). 32. Inadmissible Hearsay Through Defense Experts. That no defense expert attempt to introduce inadmissible hearsay evidence. It is improper for an expert witness to relate hearsay statements or the contents of hearsay documents to the jury or to otherwise serve as a conduit for the purpose of placing inadmissible evidence before the jury. Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997); 3M Corp. v. Brown, 475 So. 2d 994 (Fla. Ist DCA 1985); Bunyak v. Yancy, 438 So. 2d 891 (Fla. 2d DCA 1983). 33. Personal Opinion of CME doctor about credibility of Plaintiff. The CME doctors or any witnesses should be limited from stating personal opinions about the Plaintiff. It is error to state personal opinions about the merits of the case or credibility of the Plaintiff. Moore v. Taylor Concrete & Supply Co., Inc., 553 So. 2d 787 (Fla. Ist DCA 1989), B ue Grass Shows, Inc. v. Collins, 614 So. 2d 626 (Fla. Ist DCA 1993); rev. den. 624 So.2d. 264 (Fla. 1993); Nelson v. Reliance Insurance Co., 368 So.2d 361 (Fla. 4th DCA 1978). See also: Feller v. State, 637 So. 2d 911 (Fla. 1994) (error for expert to state belief that victim was telling truth); Tingle v. State, 536 So. 2d 202 (Fla. 1988) (error to permit expert to testify she believed victim). Hitchcock v. State, 636 So. 2d 572 (Fla. 4th DCA); Davis v. State, 527 So. 2d 962, 963 (Fla. 5th DCA 1988) (error to permit expert to testify that victim was frank). 34. Malingerer or Exaggerator for Secondary Gain. The defense expert cannot testify that there was evidence of “symptom magnification” or malingering because compulsory medical examination reports are made solely for the purpose of litigation and that they are inherently untrustworthy, they should not be admitted into evidence under the business records exception to the hearsay rule, nor should any expert witness testify as to the truthfulness of a witness. McElroy v. Perry, 753 So. 2d 121 (Fla. 2d DCA 2000); Page v. Zordan, 564 So. 2d 500 (Fla. 2d DCA 1990); General Tel. Co. v. Wallace, 417 So. 2d 1022 (Fla. 2d DCA 1982). 35. Alleged Drug or Alcohol Use by Plaintiff. Any reference directly, indirectly, or in any manner whatsoever to alleged drug or alcohol use by Plaintiff prior to or after the incident at issue in this case. Fla. Stat. §90.403; Shaw v. Jain, 914 So. 2d 458 (Fla. Ist DCA 2005) (and the cases cited therein); Nicholas v. Benton, 718 So. 2d 925 (Fla. Ist DCA 1998); Harless v. Boyle-Midway Division, American Homes Products, 594 F. 2d 1051 (5th Cir. 1979), cited by Duffell v. South Walton Emergency Services, Inc., 501 So. 2d 1352 (Fla. Ist DCA 1987); Botte v. Pomeroy, 497 So. 2d 1275 (Fla. 4th DCA 1986) (issue of Plaintiff's drug use relevant only to issue of Plaintiffs future earning capacity in a personal injury claim; however, evidence of drug use, if any, must relate to relevant issues and cannot be used solely to create prejudice against the plaintiff). See also Edwards v. State, 548 So. 2d 656 (Fla. 1989) (evidence of drug use or addiction is not admissible to attack credibility unless there is an express showing that the drug use effected the witness’ ability to observe or recount the matters testified to). 36. Defendants’ Lack of Ability to Pay. Any evidence or reference to Defendants’ ability or lack to pay. Williams v. Pincombe, 309 So. 2d 10 (Fla. 4th DCA 1975). Samuels v. Torres, 29 So. 3d 1193 (Sth DCA 2010); see # 21 above 37. Trial Lawyers. Any reference directly, indirectly, or in any manner whatsoever, to trial lawyers in general and in any intimation that frivolous lawsuits generated by them are major ill of our society. Bell South Human Resources Administration v. Colatarci, 641 So. 2d 427 (Fla. 4th DCA 1994). 38. Attorney Referral. That Plaintiff was referred to any physician or medical provider by his counsel or that Plaintiff was referred to counsel by a physician or medical provider. Burt v. GEICO, 603 So. 2d 125 (Fla. 2d DCA 1992). 39. Improper Stacking of Inferences. Any attempts to establish the facts of this case by impermissible stacking inference upon inference. Voelker v. Combined Insur. Co. of America, 73 So. 2d 403 (Fla. 1954); Nielsen _v. City of Sarasota, 117 So. 2d 731 (Fla. 1960); Marlo Investments, Inc. v. Verne, 227 So. 2d 58 (Fla. 4th DCA 1969); Green House, Inc. v. Thiermann, 288 So. 2d 566 (Fla. 2d DCA 1974); Hughes _v. Miktchell, 617 So. 2d 767 (Fla. Ist DCA 1993); Girdley Construction Co. v. Oo hmstede, 465 So. 2d 594 (Fla. Ist DCA 1985). 40. Jury Instruction Paraphrasing by Defendants, That the Court prohibit and jury instruction paraphrasing or expanding the definition of negligence continued in the standard jury instruction. Sierra v. Winn Dixie Store, 646 So. 2d 264 (Fla. 3d DCA 1994). Al. Results of a Claim against the Defendants. That no mention be made of the effect or results of a claim, suit or judgment upon insurance rates, premiums, or charges, either generally or as particularly applied to the Defendants, as a result of this lawsuit or any other lawsuit. Davidoff v. Segret, 551 So. 2d 1274 (Fla. 4th DCA 1989). 42. Improper Statements to a Jury. Encouraging the jury to “send a message” by its verdict to act as the guardian of the community or to use its verdict to punish the Plaintiff. Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985); Florida Crushed Stone Co. v. Johnson, 546 So. 2d 1102 (Fla. Sth DCA 1989); Brumage v. Plummer, 502 So. 2d 966 (Fla. 3d DCA 1987); Davidoff v. Segret, 551 So. 2d 1274 (Fla. 4th DCA 1989); and Sacred Heart Hospital of Pensacola v. Stone, 650 So. 2d 676 (Fla. Ist DCA 1995). 43. Doctor’s alleged malpractice or violations or regarding medical treatment, Any and all alleged malpractice or violations of the standard of care by treating doctor or and other medical professionals regarding medical treatment rendered to Plaintiff, and any opinions relating to treatment being “inappropriate,” performed in an “inappropriate manner,” or that any of the Plaintiff's symptoms in the past or in the future are the result of such inappropriate treatment.” Dungan v. Ford, 632 So. 2d 159 (Fla. Ist DCA 1994); also, any expert or witness commenting on the credibility or reputation of any other expert witness. Ecker_v. National Roofing of Miami, Inc., Inc. 201 So. 2d 586 (Fla. 3d DCA 1967); Craver v. Orange County, supra; any of the Plaintiff's treating physicians have committed medical malpractice or medical negligence. Stuart v. Hertz, 351 So. 2d 703 (Fla. 1977); Farina v. Zann, 609 So. 2d 629 (Fla. 4th DCA 1992); Dade County Medical Association v. Hills, 372 So. 2d 117 (Fla. 3d DCA 1979); Gonzalez v. Leon, 511 So. 2d 606 (Fla. 3d DCA 1987); and any comment by one expert on the opinion of another expert. Carlton v. Bielling, 146 So. 2d 915 (Fla Ist DCA 1962); Carver v. Orange County, 444 So. 2d 452 (Fla. 5th DCA 1984); Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977). 44. Cannot Say Surgery Was Not Necessary by Defense CME Doctor. Any questioning or debating as to why the treating surgeon opined that the Plaintiff is a surgical candidate. It is improper for an expert to second guess a treating physician in this fashion and in this type of trial which is tantamount to accusing the treating doctor of wrongdoing, medical battery or the like. Additionally, such evidence is more prejudicial then probative. The standard “an expert may properly explain his or her opinion on an issue in controversy by outlining the claimed deficiencies in the opposing expert’s methodology so long as the expert does not attack the opposing expert’s ability, credibility, reputation, or competence.” Defendants’ counsel and witness should so be limited. See, Network Publications, Inc. v. Bjorkman, 756 So.2d 1028 (Fla. 5th DCA 2000); Dugan v. Ford, 632 So. 2d 159 (Fla. Ist DCA 1994); Stuart v. Hertz, 351 So. 2d 703 (Fla. 1977); Farina v. Zann, 609 So. 2d 629 (Fla. 4th DCA 1992); Davidson v. Gaillard, 584 So. 2d 71 (Fla. Ist DCA 1991); Dade County Medical Association v. Hills, 372 So. 2d 117 (Fla. 3d DCA 1979). 45. Improper Non-disclosed Opinions at Trial. The defense expert is not permitted at trial to express any opinion that was not preciously disclosed in his deposition nor is the defense permitted to introduce any evidence obtain after the discovery deadline date. Grau v. Branham, 626 So. 2d 1059 (Fla. 4th DCA 1993); Office Depot. Inc. v. Miller, 584 So. 2d 587 (Fla. 4th DCA 1991); Dep’t of Health & Rehabilitative Services v. J.B., 675 So. 2d 241 (Fla. 4th DCA 1996); Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). 46. Improper closing Argument by Defense Reference Plaintiffs Treating Doctors. That the Plaintiff's doctor prostitutes himself for the benefit of lawyers, that the doctor and/or lawyer have orchestrated the entire case or created a scheme, and any reference to other case in which the defense counsel has been involved with the same lawyers or doctors involved in the instant case. Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993). 47. Improper Defense Attorney Closing Reference Plaintiff. a. That the Plaintiff or other patients involved in cases have a hard time getting well or better. Johnson v. Canteen Corp., 528 So. 2d 1364 (Fla. 3d DCA 1988). b That the Plaintiff is malingering or otherwise attempting to make some type of financial or secondary gain. Parker v. Happock, 695 So. 2d 424 (Fla. 4th DCA 1997). Cc. That the Plaintiff received welfare, social security or public health benefits. Id. 48. Improper Closing Comments by Defense Attorney Reference Witnesses/Jurors. Any mention or attempt to pass judgment on witnesses by using terms such as “a good soldier” or “this joker.” Any comment or inference that counsel for the Plaintiff is treating the jurors like “fools” or “idiots.” Walt Disney World Co. V. Blalock, 640 So. 2d 1156 (Fla. Sth DCA 1994). 49. Defense Closing “Lottery”. Defendants shall not be able to refer to Plaintiff's lawsuit as an attempt to win the “Florida Lottery” or any other self-serving and highly prejudicial remark. 50. Improper Defense Attorney Comments Reference Plaintiff and Attorney. Degrading or humiliating the Plaintiff(s) or his/her/their counsel by referring to him/her/them as “greedy”, or “liars”, or “ridiculous”, or by demeaning Plaintiffs lawyers. Ryan v. State, 457 So. 2d 1084 (Fla. 4th DCA 1984); Kendall Skating Ctrs. v. Martin, 448 So. 2d 1137 (Fla. 3d DCA 1984); Hartford Acc.& Indem. Co. v. Ocha, 472 So. 2d 1338 (Fla. 4th DCA 1985). Sl. Defense Attorney Unethical Comments Referring Plaintiffs Attorney/ Plaintiffs Medical Doctors Perjury/Fraud. Accusing Plaintiffs medical experts or perjury or accusing Plaintiff's counsel of fraud or unethical conduct. Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993); Kaas v. Atlas Chem. Co., 623 So. 2d 525 (Fla. 3d DCA 1993). Challenging Plaintiff's counsel to explain to the jury why it did not call certain witnesses, or why deposed witnesses were not at trial, or making other references to matters outside the record. Riggins v. Mariner Boat Works, 545 So. 2d 430 (Fla. 2d DCA 1989). 52. Defendants Attorney Alluding to Matters Outside of Record/Asserting Personal Opinions. Alluding to any matter that is not relevant to the case or will not be supported by the evidence, asserting personal knowledge of the facts, or stating personal opinions regarding the case or the credibility of the witnesses, all of which is contrary to Rule 4-3-4(e) of the Rules Regulating The Florida Bar. Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993); Schreier v. Parker, 415 So. 2d 794 (Fla. 3d DCA 1982). 53. Disability/Workers Compensation Benefits Inadmissible. Evidence or receipt of disability and/or worker’s compensation benefits is not admissible to rebut or impeach Plaintiffs testimony concerning his/her motivation and desire to return to work after an accident. State Farm Mut. Auto Ins. Co. v. Gordon, 712 So. 2d 1138 (Fla. 3d DCA 1998). 54. Defendants Cannot Argue Non Party Liability. Defendants cannot argue to the jury that this accident was caused or contributed to by any non- parties, or place any non-parties on the verdict from for the purposes of apportionment of fault, as the Defendants have not and cannot identify any such non-parties. Nash v. Wells Fargo Guard S ervs., Inc., 678 So. 2d 1262 (Fla. 1996). 55. Surveillance. Plaintiff requests the Court to instruct the Defendants and its attorney to refrain from using any surveillance of the Plaintiff. No surveillance information was ever disclosed. 56. Criminal Record. Plaintiff requests the Court instruct the Defendants, its attorneys, its witnesses and its experts not to mention or bring before the jury, either directly or indirectly, or at any time during the trial, and to exclude from evidence an reference to Plaintiffs criminal record including, but not limited to, any and all convictions other than those permitted by Section 90.610 of the Florida Evidence Code. 37. Defendants are Sorry. Any reference or suggestion that defendants are sorry for the accident in question, because such a suggestion is an improper appeal for jury sympathy toward the defendants, and invites the jury to disregard it’s duty to apply the legal measure of damages by awarding such damages as the evidence shows have been caused by such Defendants’ misconduct and base a verdict on improper considerations. 58. Prohibits Defense Attorne’ uestion Reference Plaintiff Obtaining an Attorney. Defense counsel should be precluded from eliciting testimony, discussing, mentioning or implying anything in regard to when the Plaintiff(s) first sought the assistance of counsel. Such questions or argument is irrelevant to the issue being litigated and no basis exists for Defendants to prove Plaintiff's litigiousness. Rules 402, 403 and 404 of the Federal Rules of Evidence would bar such irrelevant and prejudicial statements. To this end, Florida courts have routinely barred such comments as improper. See Watson v. Builders Squire, Inc., 563 So. 2d 721 (Fla. 4th DCA 1990). Lines of questioning regarding when claimants first sought legal assistance are also unethical. The Preamble to the Rules of Professional Conduct, which discusses a lawyer’s responsibilities, including the goal of encouraging people to seek legal advice. Moreover, the Comment to Rules of Professional Conduct, Rule 4-1.6, Confidentiality of Information, states that a lawyer’s obligation to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also ncourages people to seek early legal assistance so they can quickly determine whether there has been a compensable injury and so that immediate steps can be taken to protect the client’s rights under the law. In this case, while there is no direct communication to a lawyer at stake, the mere argument that the Plaintiff's motives should be considered suspect simply because he seeks early legal advice is contrary to the Rules’ goal of encouraging people to seek early legal assistance. One of the reasons people should seek early legal advice is so that a prompt investigation can be made before conditions change or witnesses become lost or lose memory of the events. To allow a line of questioning or argument chastising a Plaintiff for seeking counsel early would be to discourage the early retention of counsel encouraged by the rules and to encourage the exact opposite response: lay people will delay the retention of counsel and thereby prejudice their own cases. Lastly, if the referral and the timing of hiring an attorney is made known to the jury, Plaintiff will be required to explain his/her actions. Specifically, Plaintiff's testimony will include, among other things, that at the time of the accident Plaintiff was unaware whether his/her insurance or Defendants’ insurance was primary to cover her medical bills and that Plaintiff was concerned about being dealt with fairly by Defendants’ insurance carrier. This collateral issue could easily become a focal point of the trial and would cause the jury to learn of issues that are generally limited from their consideration including the existence of Defendants’ liability insurance. 59. Prohibits Defense Opening Unreasonable Demands of Plaintiff. Defendants shall not be permitted in any manner to suggest to the jury this case is being tried because of an unreasonable demand by Plaintiff. For example, Defendants should not be permitted in response to a damages claim presented in opening statement, to advice the jury, “ Now we know why we are here.” Such a statement would violate the spirit and intent of litigant’s right of access to Court and it should be excluded pursuant to section 90.403, Florida Statutes. 60. Prohibit Defense Questions re Lack of Inju of other Occupants Defendants shall not be permitted to question or raise the issue that no other occupants of the vehicle Plaintiff was in, or the occupants of any other vehicle involved in the crash, did not sustain any injury. Such evidence would be prejudicial to Plaintiff. The other occupants, since they were sitting in different locations and subject to different and varying forces, would not be competent evidence that the Plaintiff should not have been injured. See J. B. Hunt Transport, Inc. V. General Motors Corp., 243 F. 3d 441 (8th Cir. 2001). CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 28, 2023, I electronically filed the foregoing with the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to the following: Frank A. Miller, Esq. (fmiller@cagmil.com; llaman@cagmil.com; mirabal@cagmil.com). /s/ D. Graham Anderson D. Graham Anderson, Esq. Florida Bar No.: 62443 Bogin, Munns & Munns, P.A. 1390 N. Hancock Road, Suite 201 Clermont, FL 34711 (352)243-8981 Attorney for Plaintiff ganderson@boginmunns.com scherr@boginmunns.com quintana@boginmunns.com bmmservice@boginmunns.com