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Filing # E-Filed 03/16/2022 09:33:05 PM
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR
VOLUSIA COUNTY, FLORIDA
TAMMY BRADFORD,
as Personal Representative of the Estate
of MICHAEL BLAZE BRADFORD, deceased; CASE NO.: 2019 10377 CIDL
and as Personal Representative of the
Estate of WARREN MICHAEL BRADFORD,
Deceased
Plaintiff,
vs.
MICHELIN NORTH AMERICA, INC.,
a foreign corporation; and DISCOUNT
TIRE CO., a Florida corporation
Defendants.
/
PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTIONS IN LIMINE
Comes now Plaintiff Tammy Bradford and files these responses in opposition to Defendant
Discount Tire's Motions in Limine.
1. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT
DAVID SOUTHWELL THAT ARE OUTSIDE OF HIS TIRE FAILURE
ANALYSIS OPINIONS
Plaintiff agrees that her forensic tire examiner David Southwell will only offer opinions in
accordance with Mr. Southwell' s expert designation. Because his designation does not concern the
areas, Mr. Southwell will not offer expert opinions about the adequacy of warnings, nor will Mr.
Southwell offer any opinions on the standard of care for a retail tire servicing facility such as
Discount Tire. As such, Plaintiffs do not oppose this motion. If Plaintiff believes that testimony
from Mr. Southwell touching on these issues becomes necessary for some unanticipated reason,
counsel will approach the bench before raising the subject in open court.
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2. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT
DAVID SOUTHWELL OR ANY OTHER WITNESSES THAT ARE CRITICAL OF
THE TIRE AIR PRESSURE ALLEGEDLY PUT IN THE TIRES BY DISCOUNT
TIRE
Defendants seeks to exclude any testimony concerning the air pressure of the tires during
the Discount Tire service visit. However, this evidence will not be offered to show any negligence
on the part of Discount Tire. Rather, the evidence will be offered along with other facts from the
time of service to show that the failed tire was present at Discount Tire.
Mrs. Bradford's theory of liability is simple. Her husband Michael Bradford visited
Discount Tire a few months before the crash and purchased two new tires. Per the Discount Tire
invoice, those two new tires were placed on the rear, and the existing tires mounted on the rear
were moved the front. However, during the service transaction, Discount Tire failed to record the
identifying DOT numbers of any of the vehicle tires, in violation of its own policy. This policy is
safety-based: A DOT number tells a tire technician the age of the tire, and customers must be
warned against using a tire over 10-years-old. The failed tire was 14-years-old.
Now, Discount Tire is attempting to use the failure to record the DOT number as a sword,
claiming that Mrs. Bradford does not have direct evidence conclusively proving the failed tire was
on the vehicle when it was serviced in February 2017. Discount Tire argues that because it failed
to record the DOT number -- the very basis of Mrs. Bradford's claim -- she cannot prove to an
absolute certainty that the failed tire was in Discount Tire's custody. Fortunately, even when faced
with Discount Tire's failure to record the DOT number, there remains substantial circumstantial
evidence from which a jury can conclude that the failed tire was more likely than not on the subject
vehicle at the tire of the February 2017 Discount Tire service. One of these many pieces of
evidence is the air pressure measurements at the time of service.
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Ultimately, Discount Tire's argument speculates that sometime between February 2017
and the crash, Mr. Bradford replaced his two front tires with another identically-worn matching
set of 14-year-old tires. As far fetched as this scenario may seem, it becomes truly implausible
when the air pressure of the tires is considered. The air pressure of the tires was recorded at the
time of service and after the accident. At the time of service, the air pressure in the two rear tires
was set to 70 PSI, which was the incorrect air pressure. At the time of the incident, that pressure
had dropped to 61 PSI. Defendant's tire expert Joseph Grant has opined that a tire will lose 1-2
pounds of inflation pressure per month. Given those numbers, the lose of tire pressure is consistent
with the loss of expected pressure since the time of service. The same remains true with the front
tires, including the incident tire, which were incorrectly under pressurized by Discount Tire to 60
psi. The drop in pressure of the front tire at the time of the incident is also consistent with said
underinflation. Therefore, in order to accept Discount Tire's theory that Mr. Bradford might have
replaced his two front tires with another identically-worn matching set of 14-year-old tires, one
must also accept that the absurd notion that those tires were identically underinflated.
In addition to showing that the tire was present at the time of service, the air pressure helps
explain the findings of Defendant's expert Joseph Grant. Mr. Grant has opined that he found
midline compression grooves in the interior of the tire. These grooves are caused by overdeflection
of the tire's surface which results from underinflation. Since Discount Tire is the cause of that
underinflation, the air pressure is relevant for that reason as well.
3. ANY REFERENCE TO THE REAR TIRES AND REAR RIMS BEING
IMPROPERLY SIZED
Defendant seeks to exclude any reference to the rear tires and rims being improperly sized
because Plaintiff's expert David Southwell agreed that tire mounting issues played no role in the
tire's failure. Yet here again, this evidence will not be offered to show negligence or the cause of
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the failure. Instead, the improper sizing of the tires and rims is another anomaly about the condition
of the tires that supports the idea that the tires were present at the time of service by Discount Tire
and refutes DT-FL' s expert Joseph Grant's opinion that the tires were not present at the time of
service by DT-FL. In addition to the many other consistencies found in the record, the tires and
rims remained improperly sized both at the time of the incident and the time of service, providing
further circumstantial evidence that Defendant had custody of the failed tire.
By way of background, the DT-FL invoices show that the Bradford vehicle had LT265 size
tires mounted on the rear wheels, which were the correct size tires for the wheels. The LT265 size
tires on the rear wheels were then rotated to the vehicle's front wheels. DT-FL subsequently
mounted two new LT285 size tires on the rear wheels; however, the LT285 size tires were not the
correct size for the rear wheels. Indeed, the invoice shows that DT-FL knew that the rear tires were
the incorrect size, evidenced by a notation on the invoice, yet DT-FL proceeded to install the rear
tires anyway. Ultimately, the newly mounted LT285 rear tires were too big/wide for the rear
wheels.
Plaintiff will put on evidence that the improperly sized tires resulted in excessive center
treadwear of the rear tires in addition to the center treadwear caused by overinflation discussed
above and rear axle drive forces exerted on the rear tires.
This evidence is relevant to refute Mr. Grant's position that the LT265' s were not on the
vehicle at the time of service. In arguing that this tire was not on the vehicle at the time of service,
Mr. Grant impermissibly conducts an apples to oranges comparison of the tread depths of the front
and rear tires to his benefit. Specifically, Mr. Grant uses measurements taken from the center tread
of the rear tires and then compares that to the treadwear measurements on the front tires. Mr. Grant
states that the rear LT285 tires had a tread depth of 12/32nds - 8/32nds - 12/32nds, measuring
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from the left shoulder tread to the center tread to the right shoulder tread. Mr. Grant then only
uses the 8/32nds center measurement to his benefit to show a disparity in the treadwear on the
front and rear tires from the time the vehicle left Discount Tire until the accident, to support his
theory that the rear LT285s, which had a tread depth of 15/32nds at the time of service, were placed
on the vehicle from the time of the service until the accident, while the front LT265s, which had a
tread depth of 5/32nds at the time of service, were not on the vehicle at the time of service.
Accordingly, this is relevant to show Mr. Grant's position was incorrect and that his measurements
were taken from an area that was caused by the excessive center tread wear created by DT-FL. In
essence, Mr. Grant's claim that the rear tire tread wore much more quickly than the front tires is
misguided because the rear tires only wore so quickly due to the unique condition of overinflation,
as well as, the fact that the tires were improper size for the wheels in which they were placed.
4. ANY REFERENCE TO TAMMY BRADFORD, DECENDENT MICHAEL
BRADFORD OR DECEDENT WARREN BRADFORD BEING "REGULAR"
CUSTOMERS OF DISCOUNT TIRE
Defendant seeks to exclude any reference concerning the Bradfords' established history of
making tire purchases at his local Discount Tire location. Defendant's motion is based upon
Plaintiff's tire failure expert David Southwell not recalling during his deposition whether there
was evidence concerning prior purchases.
Yet Defendant cannot dispute that discovery revealed undisputed evidence of the
Bradfords' history as regular customers of Discount Tire. There are numerous invoices for tire
purchases both before and after the visit in February 2017. Those invoices include purchases on:
February 22, 2014 (DT-FL / Bradford , March 1, 2014 (DT-FL / Bradford ,
June 7, 2014 (DT-FL / Bradford , June 19, 2014 (DT-FL / Bradford , May
17, 2017 (DT-FL / Bradford , and May 30, 2017 (DT-FL /Bradford . These
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invoices documenting this pattern of purchases of Discount Tire make it more likely that any
replacement purchase would have occurred at Discount Tire. As such, Plaintiff intends to argue to
the jury that their family was a regular customer of Discount Tire, and this argument is a fair
comment supported by the objective evidence.
5. UNSUPPORTED TESTIMONY AND OPINIONS PROFFERED BY PLAINTIFF'S
DESIGNATED TIRE FAILURE ANALYSIS EXPERT, DAVID SOUTHWELL,
PURPORTEDLY BASED ON UNDISCLOSED "EXPERIENCE"
Courts have repeatedly held that an expert' s experience is relevant even if some elements
of that experience are governed by a former employer's confidentiality agreement. In fact,
Plaintiff's expert David Southwell was the subject of a recent opinion on this issue, when Hankook
Tire Company raised a similar challenge arguing that the confidentiality provisions covering Mr.
Southwell's work at Bridgestone required exclusion of any mention of that experience or testing.
In that case, the Eastern District of Virginia disagreed, explaining the issue as follows:
It is true that Southwell cannot identify any public testing of his theory
or recall having documentation of testing he conducted. However, it is
apparent from the record that testing of this theory was performed at
Bridgestone during Southwell's tenure. This testing, furthermore,
followed an "investigation process involving cutting up multiple tires
... cutting up recent production tires, doing some wheel durability
testing, doing pull testing, [and] investigating a whole range of
variables in the production plant," and it showed that "liner imprint was
visible in the great majority of tires analyzed that had component
separations. Southwell can knowledgeably rely on this testing,
moreover, given that he was one of five or six people associated with
it. And the liner pattern theory was, according to Southwell, part of a
training course that he taught at Bridgestone, and use in a training
course is an indicator of reliability. Finally, although Southwell does
not provide documentation of the Bridgestone testing, this is a matter
that goes to the weight of Southwell's testimony, not its reliability.
Benedict v. Hankook Tire Co. Ltd., 290 F. Supp. 3d 488, 498 (E.D. Va. 2018) (emphasis in
original). For these reasons, the court in Benedict permitted Mr. Southwell to testify about his
experience at Bridgestone and the tests he conducted to detect defects in failed tires.
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A similar decision regarding Mr. Southwell was reached by the Western District of
Tennessee, which cited Mr. Southwell's "extensive experience working for tire manufacturers in
various capacities, including inspecting tires, investigating tire failures, and recording and
analyzing data about tire failures and warranties." Cone v. Hankook Tire Co., Ltd., No. 14-1122,
2017 WL 238448, at *2 (W.D. Tenn. Jan. 19, 2017). The court noted that Mr. Southwell's
"experience can serve as an adequate basis for an expert opinion." Id. at *2. The court explained:
While employed by a tire manufacturer, he conducted testing that he
says supports his theory. Defendant may be able to point to sources that
disagree with the expert's conclusions, and Hankook will have an
opportunity to cross-examine him in that regard, but the opinion is
admissible.
Cone v. Hankook Tire Co., Ltd., 14-1122, 2017 WL 238448, at *5 (W.D. Tenn. Jan. 19, 2017)
(noting that "Southwell personally conducted testing related to this defect while employed by
Bridgestone."). Mr. Southwell was permitted to discuss this experience even though certain
elements of his work involved confidential Bridgestone trade secrets. Mr. Southwell has also been
permitted to discuss his opinions and background at Bridgestone by other courts in recent trial
rulings. See, e.g., Breaux v. Goodyear Tire & Rubber Co., La. App. 4 Cir. 5/12/21, 2,
320 So. 3d 1197, 1201, writ denied, La. 10/5/21, 325 So. 3d 363 (Noting Southwell
is "a tire analyst who provided his analysis and opinions on their manufacturing defect claim" at
trial.); Susrnan v. Goodyear Tire & Rubber Co., No. 8:18CV127, 2020 WL 1065179, at *3 (D.
Neb. Mar. 5, 2020) (discussing qualifications and denial of motions in limine regarding
Southwell).
Nor is this issue unique to Mr. Southwell. Virtually every forensic tire examiner who serves
as an expert witness had a prior career for a major tire manufacturer, and they are each bound by
similar confidentiality obligations concerning their employer's trade secrets. In this case,
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Defendants' tire failure expert Joseph Grant owes these same obligations to his former employer,
and elements of his prior job experience remain undisclosed. Nonetheless, such experts may
properly rely on such experience.
As the court in Benedict noted, "Southwell has spent several decades in the business of
inspecting, studying, analyzing, and recommending improvements to tires." Benedict, 290 F. Supp.
3d at 494. The court noted that "it is hard to imagine an expert more qualified to testify to the tire
manufacturing standard of care." Id. at 506. Here, Mr. Southwell is permitted to rely on that
experience and discuss his background in tire testing with the jury.
6. TESTIMONY REGARDING THE PRESENCE OR LACK OF NYLON OR NYLON
OVERLAYS IN THE SUBJECT TIRE OR THAT DISCOUNT TIRE SHOULD
HAVE RECOMMENDED REMOVAL OF THE SUBJECT TIRE DUE TO THE
LACK OF A NYLON OVERLAY
Plaintiff agrees that the tire failure was not caused by a lack of a nylon overlay. As such,
Plaintiff is not opposed to this motion. Should it become necessary in any way to discuss nylon
overlays, Plaintiff's counsel will approach the bench before any reference is made.
7. UNDISCLOSED OR UNPRODUCED TESTING, DATA, OR SUPPORTING
MATERIALS
Defendant urges an order in limine prohibiting any testimony or references to undisclosed
data or studies. This is not a proper subject for a motion in limine. The Rules of Civil Procedure
fully address the issue of undisclosed information, and no such motion is needed.
8. ANY REFERENCES BY PLAINTIFF'S EXPERTS OR WITNESSES TO
DOCUMENTS OR RECORDS THEY ALLEGEDLY HAVE SEEN IN OTHER
CASES INVOLVING DISCOUNT TIRE
DT-FL erroneously states that documents seen by Plaintiff's experts in other cases
involving DT-FL, but not produced by DT-FL in this case, should be precluded because 1) it is
inadmissible hearsay; and 2) only serves to confuse and mislead the jury into thinking that DT-FL
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is hiding information or not properly responding to discovery. An example of the documents at
issue includes a Discount Tire invoice in the possession of Plaintiff's expert Jay Zembower
regarding a similar vehicle and similar services as the Bradford vehicle, but a different customer.
See Exhibit 1 — Zembower Discount Tire Invoice. However, the document is not inadmissible
hearsay because it falls under hearsay exception § 90.803(6), the business records exception, and
§ 90.803(18), the statement against party-opponent exception. Section 90.803(6) states that a
record of regularly conducted business activity, e.g. the Discount Tire invoice itself, is admissible
as an exception to hearsay. Further, § 90.803(18) provides that a party's own statement/admission
that is offered against the party making the statement/admission is admissible as an exception to
hearsay. For example, the content of the Discount Tire invoice are exceptions to hearsay because
they are statements made by DT-FL which will be offered against DT-FL.
9. EXPERT OPINIONS NOT DISCLOSED DURING DISCOVERY
Defendant urges an order in limine prohibiting any testimony or references to undisclosed
expert opinions. This is not a proper subject for a motion in limine. The Rules of Civil Procedure
fully address the issue of undisclosed expert opinions, and no such motion is needed.
10. IMPROPER LAY OPINION REGARDING CAUSE OF THE TIRE FAILURE OR
THE DECEDENTS' INJURIES OR DEATHS
Defendant urges an order in limine prohibiting any improper lay testimony on expert
issues, such as the cause of the tire failure or the cause death. This is not a proper subject for a
motion in limine. The Rules of Civil Procedure and Rules of Evidence fully address the issue of
expert and lay testimony, and no such motion is needed.
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11. REFERENCES TO PORTIONS OF THE ACCIDENT REPORT
Defendants seek to exclude portions of the accident report. Plaintiffs agree that no expert
opinions about the cause of the accident or tire failure should be admissible. However, there
remains certain information recorded by the responding officer in the report. Most notably, the
report contains a measurement of the air pressure on the vehicle's tires. As noted above, the change
in air pressure between the accident and the time of service at Discount Tire is a relevant fact in
showing that the failed tire was more likely than not present at Discount Tire.
12. TESTIMONY BY DISCOUNT TIRE EMPLOYEES IN OTHER LAWSUITS AND
EVIDENCE FROM UNDISCLOSED DISCOUNT TIRE EMPLOYEES
Defendant seeks an order precluding the use of depositions of its employees from prior
lawsuits, yet any deposition may be used at trial "for any purpose permitted by the Florida
Evidence Code." Fla.R.Civ.P. 1.330(a)(1). Thus, the use of deposition testimony from a prior
proceeding is permitted if it meets the requirements of the hearsay exception for former testimony
found in Section 90.803(22). Under that Rule, "Wormer testimony given by the declarant...in a
deposition taken in compliance with law in the course of the same or another proceeding" is
admissible if "the party against whom the testimony is now offered ... had an opportunity and
similar motive to develop the testimony" in the prior proceeding. Fla. Stat. § 90.803(22). In
addition, since "the introduction of these statements is `permitted by the Florida Evidence Code,'
they are admissible under Rule 1.330(a)(1) regardless of the witnesses' availability to testify."
Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass'n, Inc., 884 So. 2d 1087, 1091 (Fla.
4th DCA 2004).
Here, the prior deposition testimony addresses issues relevant to this case, and Defendant
had a similar opportunity and motive to defend itself. Furthermore, any prior deposition can be
used for impeachment purposes. Failure to permit the use of deposition testimony by a party when
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such use is expressly authorized constitutes reversible error as a matter of law. Borden Diary
Company of Alabama, LLC v. Kuhajda, 152 So.3d 763 (Fla. 1st DCA 2014). As such, a motion in
limine is improper on this issue, and the use of any deposition should be resolved through specific
objection.
13. EVIDENCE AND TESTIMONY REGARDING DISCOUNT TIRE'S SERVICE
PRACTICES AND PROCEDURES NOT RELATED TO OPINIONS RELATING
TO THE SUBJECT TIRE'S FAILURE
Defendant's motion repeats its argument in its earlier motions that certain facts about the
condition of the tires during the time of service should be excluded because they played no role in
the tire's failure. However, as explained above, several anomalies in the condition of the tires and
the service performed by Discount Tire helps establish that the tires were on the vehicle at the time
of the service visit. As such, this evidence will not be offered to establish unrelated negligence,
but to support Plaintiff's claim that Discount Tire had custody of the failed tire.
14. CHARACTERIZATION OF PLAINTIFF OR THE DECEDENTS AS "VICTIMS"
Motions in limine seeking to exclude the term "victim" are sometimes granted in certain
criminal proceedings, but they are typically denied when raised in civil tort trials. For example, a
similar motion in limine was denied in the Homestore MDL proceedings. See In re
Homestore.com, Inc., CV 01-11115 RSWL CWX, 2011 WL 291176, at *11-12 (C.D. Cal. Jan.
25, 2011) ("The Court DENIES Defendant's Motion in Limine Number 13 to prevent references
to the Lead Plaintiff and the Plaintiff Class as `victims.' The Court finds that Defendant has not
sufficiently shown that use of this term will be prejudicial under Federal Rule of Evidence 403.").
Similarly, the Middle District of Alabama allowed the use of the term in a tort suit against Sears:
Defendant "moves to exclude any reference, evidence, testimony or
argument by [P]laintiff s counsel that refers to the plaintiff as a `victim,'
or words to that effect." Defendant asserts that use of the word,
"victim," "incorrectly implies the existence of a `criminal' legal
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proceeding and serves only to mislead or inflame the jury and prejudice
the jury against the [D]efendant." Plaintiff objects, asserting that
"'victim' is an accurate characterization of her status," given the
"allegations of severe misconduct on the part of one of [Defendant's]
employees."
Defendant has cited no authority in support of its position, and the court
is aware of none. The court finds that the use of the word, "victim," to
describe Sears, who alleges that she endured numerous, frequent sexual
assaults by her former co-employee, would not unduly prejudice or
inflame the jury, and that the balancing test in Rule 403 does not weigh
against its use.
Sears v. PHP ofAlabama, Inc., 2:05CV304-ID, 2006 WL 1223302, at *3 (M.D. Ala. May 5, 2006).
Here, "victim" is likewise an accurate characterization of the decedents' status, who
unquestionably lost their lives as victims of a tire failure.
15. HEARSAY TESTIMONY REGARDING PLAINTIFF'S OR DECEDENTS'
INJURIES, CONDITION OR PROGNOSIS
Defendants seek an order precluding any reference to statements made by medical
providers to Mrs. Bradford regarding the injuries, condition, or prognosis of the decedents.
However, Plaintiff would not seek to offer such statements to prove the truth of the matter asserted.
Instead, such statements are relevant to Mrs. Bradford's claim for mental anguish. If the jury is to
understand Mrs. Bradford's mental state in the aftermath of this incident, she must be allowed to
relate the specific details of how she was informed of their injuries and death.
16. REFERENCES TO UNDISCLOSED MEDICAL EVIDENCE
Defendant urges an order in limine prohibiting any testimony or references to undisclosed
medical evidence. This is not a proper subject for a motion in limine. The Rules of Civil Procedure
fully address the issue of undisclosed evidence, and no such motion is needed.
17. PLAINTIFF'S INTENDED USE OF JUDGEMENT PROCEEDS
Plaintiff does not oppose this motion.
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18. FAMILY PHOTOS AND VIDEOS
Plaintiff will not be offering any family videos, but she does intend to offer family
photographs. Defendant seeks to exclude family photographs, but courts "routinely admit pictures
of the decedent as evidence." Schaaf v. Midwest Transfer & Logistics, LLC, 07 C 6555, 2010 WL
3075657, at *5 (N.D. Ill. Aug. 5, 2010) "Such photographs would serve merely to, as the plaintiff
has stated, `put a face on the decedent.'" Id. In a wrongful death suit, pictures of the decedent with
the Plaintiff are likewise relevant. Any issues Defendant has with family photographs can be raised
through contemporaneous objection.
19. EXCLUDE ALL WITNESSES AND EXPERTS FROM THE COURTROOM
UNLESS TESTIFYING
DT-FL seeks to inappropriately invoke "the rule" as to Plaintiff's expert witnesses. The
sequestration of expert witnesses in Florida falls under the Florida Rules of Evidence § 90.616.
Fla. Stat. Ann. § 90.616. This rule requires that the court order a witness to be excluded when
either a party requests for the witness to be excluded or the court orders on its own. Id. Exclusion
from the court room typically applies to third-party witnesses; however, "the rule" has four
exceptions of individuals that cannot be sequestered. Id. Applicable here, the third exception is for
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a person whose presence a party shows to be essential to presenting the party' s claim or
defense," which includes experts. Id. In regard to what constitutes essentiality, an expert that
played an integral part in assisting counsel with understanding and performing cross examination
of the opposing party' s witness was found to be "essential to the presentation of the State' s
',
case and was properly excluded from sequestration. Hilton v. State, 117 So. 3d 742 (Fla. 2013).
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Here, Plaintiff' s testifying experts fall under this third exception to "the rule" and as such may
be present in the court room to hear testimony of other witnesses.
20. ANY QUESTIONING IN VOIR DIRE REGARDING THE ABILITY TO AWARD
A SPECIFIC AMOUNT OF DAMAGES
DT-FL seeks to impermissibly prevent any questioning of potential jurors on their ability
to award a specific amount of damages. Rule 1.431 (b) of the Florida Rules of Civil Procedure
states that the parties have the right to examine jurors orally on their voir dire and that the right of
the parties to conduct a reasonable examination of each juror orally must be preserved. Fla. R. Civ.
P. 1.431(b). Rule 1.431(c) states that a party that objects to a juror for bias or prejudice may issue
a challenge for cause and strike the juror. Fla. R. Civ. P. 1.431(c). Importantly, a party may inquire
about a juror's views on damages, including non-economic damages. Sisto v. Aetna Cas. & Sur.
Co., 689 So. 2d 438 (Fla. 4th DCA 1997). If a prospective juror expresses a definite bias against
awarding intangible damages, plaintiffs have a basis for requesting that the prospective juror be
excused for cause, depending on the exact questions asked and answers given. See Goldenberg v.
Regional Import & Export Trucking Co., 674 So.2d 761 (Fla. 4th DCA 1996); cf. Fazzolari v. City
of West Palm Beach, 608 So.2d 927 (Fla. 4th DCA 1992), review denied, 620 So.2d 760 (Fla.
1993). At the very least, Plaintiff has the opportunity to explore the depth of the bias or the basis
for the attitude in order to make a determination whether to exercise a peremptory or for cause
challenge. See Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972), cert. denied,
275 So.2d 253 (Fla.1973).
21. COURT RULINGS ON MATTERS OUTSIDE JURY'S PRESENCE
Plaintiff does not oppose this motion.
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22. STATEMENTS REGARDING PLAINTIFF AND DISCOUNT TIRE'S
ATTORNEYS
Plaintiff does not oppose this motion.
23. DISCOUNT TIRE'S DISCOVERY PRACTICES
Plaintiff does not oppose this motion.
24. TESTIMONY OF WITNESSES NOT PREVIOUSLY DISCLOSED OR
PROPERLY DISCLOSED
Defendant urges an order in limine prohibiting testimony from undisclosed witnesses. This
is not a proper subject for a motion in limine. The Rules of Civil Procedure and Rules of Evidence
fully address the issue of undisclosed witnesses, and no such motion is needed. Obviously, if
Plaintiff intends to call a previously undisclosed witness, her counsel would approach the bench
before doing so.
25. WHETHER A WITNESS WAS CALLED
Plaintiff is generally unopposed to this motion, with the caveat that there may exist
circumstances in which it may be proper to comment on the failure to call a witness. Most notably,
if Discount Tire's attorneys assure the jury in opening statements that a certain witness will provide
evidence, it would be fair during closing arguments to comment on the failure to call that witness.
26. REFERENCE TO NUMBER OF WITNESSES OR EXHIBITS
Plaintiff does not oppose this motion.
27. DEMANDS IN FRONT OF THE JURY THAT DISCOUNT TIRE PRODUCE ANY
DOCUMENT, STIPULATE TO ANY FACT, OR MAKE ANY AGREEMENT
Plaintiff does not oppose this motion.
28. REFERENCE TO GOLDEN RULE
Plaintiff does not oppose this motion.
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29. REFERENCES TO CONFIDENTIAL NATURE OF MATERIALS
Plaintiff does not oppose this motion.
30. REFERENCES TO INJURIES / DAMAGES AND LITIGATION INVOLVING
NONPARTIES
Plaintiff does not oppose this motion.
31. REFERENCES TO LARGE VERDICTS
Plaintiff does not oppose this motion.
32. REFERENCES TO DISCOUNT TIRE'S WEALTH, NET WORTH, OR ABILITY
TO PAY OR THE COMPARATIVE WEALTH OF THE PARTIES
Plaintiff does not intend to make any direct reference to Discount Tire's net worth. Nor
does Plaintiff intend to make a direct comparison between the comparative wealth of the parties.
Yet Defendant's motion is too vague. The comparative wealth of the parties will be open and
obvious to everyone in the courtroom merely due to their respective identities. One is a young
widow, while the other is a nationwide retail chain. For this reason, virtually any discussion of the
parties could be construed as an indirect reference to their comparative wealth.
33. REFERENCES TO PERSONAL WEALTH OF EXPERT WITNESSES
Plaintiff does not oppose this motion.
34. LIABILITY INSURANCE COVERAGE/INDEMNITY COVERAGE
Plaintiff does not oppose this motion.
35. DISCOUNT TIRE'S ALLEGED MORAL OR ETHICAL OBLIGATIONS
DT-FL' s motion in lirnine to prevent the introduction of moral or ethical obligations is
overly broad and vague. Plaintiff cannot discern what obligations DT-FL is referencing and DT-
FL fails to specifically identify any evidence which could be used to refer to moral and ethical
obligations. DT-FL may be referring to a moral and ethical obligation not to harm or proximately
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cause the death of its customers. If so, then such obligations are relevant because they are
necessarily intertwined with DT-FL' s legal duty in this case as well as other elements of negligence
such as foreseeability. Specifically, Plaintiff alleges that DT-FL had a legal duty to inspect the
Bradford vehicle's tires, record the DOT number of each tire, and then determine if the tires were
too old to remain on the vehicle in accordance with DT-FL policy. DT-FL has this policy because
it is aware that aged tires are susceptible to failure which may foreseeably result in serious bodily
injury and even death. Plaintiff also alleges that DT-FL breached this duty by failing to properly
inspect the tires and record the DOT numbers allowing Mr. Bradford to leave the DT-FL store
with fourteen-year-old tires on the front of the vehicle eventually, and foreseeably, resulting in a
catastrophic tire failure that killed Mickey and Warren Bradford.
36. APPEALS TO JUROR SELF-INTEREST AND FOR THE COMMUNITY
INTEREST ARGUMENTS
Plaintiff does not oppose this motion.
37. THAT PLAINTIFF BROUGHT SUIT TO ENHANCE CONSUMER SAFETY
Plaintiff does not oppose this motion.
38. RELIGIOUS ACTS/REFERENCES
Plaintiff does not oppose this motion.
39. `IN DEATH' PHOTOGRAPHS OF THE DECEDENTS
Plaintiff does not intend to offer any photographs of the decedents at the time of their death,
and she is unopposed to this motion. If circumstances arise in which such a photograph might
become necessary, Plaintiff's counsel will approach the bench.
Date: March 16, 2022 Respectfully Submitted,
17
/s/ Skip Edward Lynch
Skip Lynch (FL 0021085 Pro Hac Vice)
Kaster, Lynch, Farrar & Ball, LLP
125 NE 1st Ave, Ste 3
Ocala, FL 34470
Tel: 352-622-1600
Fax: 352-622-1611
Email: skip@thetirelawyers.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on 03/16/22, the foregoing was electronically filed with the Clerk
of Court by using the Florida Courts e-Filing Portal and served on all parties by the e-portal.
Respectfully submitted,
KASTER, LYNCH, FARRAR & BALL, LLP
BY: /s/Skip Edward Lynch
Skip Edward Lynch
Florida Bar No. 0021085
Skip@thetirelawyers.com
josh@thetirelawyers.com
Jessica@thetirelawyers.com
Bruce R. Kaster
Florida Bar No. 200271
brk@thetirelawyers.com
daneen@thetirelawyers.com
125 N.E. 1st Avenue, Suite 3
Ocala, FL 34470
Phone: 352-622-1600
Fax: 352-622-1611
ATTORNEYS FOR PLAINTIFF
18
EXHIBIT 1
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Preview
Filing # E-Filed 03/16/2022 09:33:05 PM IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA TAMMY BRADFORD, as Personal Representative of the Estate of MICHAEL BLAZE BRADFORD, deceased; CASE NO.: 2019 10377 CIDL and as Personal Representative of the Estate of WARREN MICHAEL BRADFORD, Deceased Plaintiff, vs. MICHELIN NORTH AMERICA, INC., a foreign corporation; and DISCOUNT TIRE CO., a Florida corporation Defendants. / PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTIONS IN LIMINE Comes now Plaintiff Tammy Bradford and files these responses in opposition to Defendant Discount Tire's Motions in Limine. 1. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT DAVID SOUTHWELL THAT ARE OUTSIDE OF HIS TIRE FAILURE ANALYSIS OPINIONS Plaintiff agrees that her forensic tire examiner David Southwell will only offer opinions in accordance with Mr. Southwell' s expert designation. Because his designation does not concern the areas, Mr. Southwell will not offer expert opinions about the adequacy of warnings, nor will Mr. Southwell offer any opinions on the standard of care for a retail tire servicing facility such as Discount Tire. As such, Plaintiffs do not oppose this motion. If Plaintiff believes that testimony from Mr. Southwell touching on these issues becomes necessary for some unanticipated reason, counsel will approach the bench before raising the subject in open court. 1 2. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT DAVID SOUTHWELL OR ANY OTHER WITNESSES THAT ARE CRITICAL OF THE TIRE AIR PRESSURE ALLEGEDLY PUT IN THE TIRES BY DISCOUNT TIRE Defendants seeks to exclude any testimony concerning the air pressure of the tires during the Discount Tire service visit. However, this evidence will not be offered to show any negligence on the part of Discount Tire. Rather, the evidence will be offered along with other facts from the time of service to show that the failed tire was present at Discount Tire. Mrs. Bradford's theory of liability is simple. Her husband Michael Bradford visited Discount Tire a few months before the crash and purchased two new tires. Per the Discount Tire invoice, those two new tires were placed on the rear, and the existing tires mounted on the rear were moved the front. However, during the service transaction, Discount Tire failed to record the identifying DOT numbers of any of the vehicle tires, in violation of its own policy. This policy is safety-based: A DOT number tells a tire technician the age of the tire, and customers must be warned against using a tire over 10-years-old. The failed tire was 14-years-old. Now, Discount Tire is attempting to use the failure to record the DOT number as a sword, claiming that Mrs. Bradford does not have direct evidence conclusively proving the failed tire was on the vehicle when it was serviced in February 2017. Discount Tire argues that because it failed to record the DOT number -- the very basis of Mrs. Bradford's claim -- she cannot prove to an absolute certainty that the failed tire was in Discount Tire's custody. Fortunately, even when faced with Discount Tire's failure to record the DOT number, there remains substantial circumstantial evidence from which a jury can conclude that the failed tire was more likely than not on the subject vehicle at the tire of the February 2017 Discount Tire service. One of these many pieces of evidence is the air pressure measurements at the time of service. 2 Ultimately, Discount Tire's argument speculates that sometime between February 2017 and the crash, Mr. Bradford replaced his two front tires with another identically-worn matching set of 14-year-old tires. As far fetched as this scenario may seem, it becomes truly implausible when the air pressure of the tires is considered. The air pressure of the tires was recorded at the time of service and after the accident. At the time of service, the air pressure in the two rear tires was set to 70 PSI, which was the incorrect air pressure. At the time of the incident, that pressure had dropped to 61 PSI. Defendant's tire expert Joseph Grant has opined that a tire will lose 1-2 pounds of inflation pressure per month. Given those numbers, the lose of tire pressure is consistent with the loss of expected pressure since the time of service. The same remains true with the front tires, including the incident tire, which were incorrectly under pressurized by Discount Tire to 60 psi. The drop in pressure of the front tire at the time of the incident is also consistent with said underinflation. Therefore, in order to accept Discount Tire's theory that Mr. Bradford might have replaced his two front tires with another identically-worn matching set of 14-year-old tires, one must also accept that the absurd notion that those tires were identically underinflated. In addition to showing that the tire was present at the time of service, the air pressure helps explain the findings of Defendant's expert Joseph Grant. Mr. Grant has opined that he found midline compression grooves in the interior of the tire. These grooves are caused by overdeflection of the tire's surface which results from underinflation. Since Discount Tire is the cause of that underinflation, the air pressure is relevant for that reason as well. 3. ANY REFERENCE TO THE REAR TIRES AND REAR RIMS BEING IMPROPERLY SIZED Defendant seeks to exclude any reference to the rear tires and rims being improperly sized because Plaintiff's expert David Southwell agreed that tire mounting issues played no role in the tire's failure. Yet here again, this evidence will not be offered to show negligence or the cause of 3 the failure. Instead, the improper sizing of the tires and rims is another anomaly about the condition of the tires that supports the idea that the tires were present at the time of service by Discount Tire and refutes DT-FL' s expert Joseph Grant's opinion that the tires were not present at the time of service by DT-FL. In addition to the many other consistencies found in the record, the tires and rims remained improperly sized both at the time of the incident and the time of service, providing further circumstantial evidence that Defendant had custody of the failed tire. By way of background, the DT-FL invoices show that the Bradford vehicle had LT265 size tires mounted on the rear wheels, which were the correct size tires for the wheels. The LT265 size tires on the rear wheels were then rotated to the vehicle's front wheels. DT-FL subsequently mounted two new LT285 size tires on the rear wheels; however, the LT285 size tires were not the correct size for the rear wheels. Indeed, the invoice shows that DT-FL knew that the rear tires were the incorrect size, evidenced by a notation on the invoice, yet DT-FL proceeded to install the rear tires anyway. Ultimately, the newly mounted LT285 rear tires were too big/wide for the rear wheels. Plaintiff will put on evidence that the improperly sized tires resulted in excessive center treadwear of the rear tires in addition to the center treadwear caused by overinflation discussed above and rear axle drive forces exerted on the rear tires. This evidence is relevant to refute Mr. Grant's position that the LT265' s were not on the vehicle at the time of service. In arguing that this tire was not on the vehicle at the time of service, Mr. Grant impermissibly conducts an apples to oranges comparison of the tread depths of the front and rear tires to his benefit. Specifically, Mr. Grant uses measurements taken from the center tread of the rear tires and then compares that to the treadwear measurements on the front tires. Mr. Grant states that the rear LT285 tires had a tread depth of 12/32nds - 8/32nds - 12/32nds, measuring 4 from the left shoulder tread to the center tread to the right shoulder tread. Mr. Grant then only uses the 8/32nds center measurement to his benefit to show a disparity in the treadwear on the front and rear tires from the time the vehicle left Discount Tire until the accident, to support his theory that the rear LT285s, which had a tread depth of 15/32nds at the time of service, were placed on the vehicle from the time of the service until the accident, while the front LT265s, which had a tread depth of 5/32nds at the time of service, were not on the vehicle at the time of service. Accordingly, this is relevant to show Mr. Grant's position was incorrect and that his measurements were taken from an area that was caused by the excessive center tread wear created by DT-FL. In essence, Mr. Grant's claim that the rear tire tread wore much more quickly than the front tires is misguided because the rear tires only wore so quickly due to the unique condition of overinflation, as well as, the fact that the tires were improper size for the wheels in which they were placed. 4. ANY REFERENCE TO TAMMY BRADFORD, DECENDENT MICHAEL BRADFORD OR DECEDENT WARREN BRADFORD BEING "REGULAR" CUSTOMERS OF DISCOUNT TIRE Defendant seeks to exclude any reference concerning the Bradfords' established history of making tire purchases at his local Discount Tire location. Defendant's motion is based upon Plaintiff's tire failure expert David Southwell not recalling during his deposition whether there was evidence concerning prior purchases. Yet Defendant cannot dispute that discovery revealed undisputed evidence of the Bradfords' history as regular customers of Discount Tire. There are numerous invoices for tire purchases both before and after the visit in February 2017. Those invoices include purchases on: February 22, 2014 (DT-FL / Bradford , March 1, 2014 (DT-FL / Bradford , June 7, 2014 (DT-FL / Bradford , June 19, 2014 (DT-FL / Bradford , May 17, 2017 (DT-FL / Bradford , and May 30, 2017 (DT-FL /Bradford . These 5 invoices documenting this pattern of purchases of Discount Tire make it more likely that any replacement purchase would have occurred at Discount Tire. As such, Plaintiff intends to argue to the jury that their family was a regular customer of Discount Tire, and this argument is a fair comment supported by the objective evidence. 5. UNSUPPORTED TESTIMONY AND OPINIONS PROFFERED BY PLAINTIFF'S DESIGNATED TIRE FAILURE ANALYSIS EXPERT, DAVID SOUTHWELL, PURPORTEDLY BASED ON UNDISCLOSED "EXPERIENCE" Courts have repeatedly held that an expert' s experience is relevant even if some elements of that experience are governed by a former employer's confidentiality agreement. In fact, Plaintiff's expert David Southwell was the subject of a recent opinion on this issue, when Hankook Tire Company raised a similar challenge arguing that the confidentiality provisions covering Mr. Southwell's work at Bridgestone required exclusion of any mention of that experience or testing. In that case, the Eastern District of Virginia disagreed, explaining the issue as follows: It is true that Southwell cannot identify any public testing of his theory or recall having documentation of testing he conducted. However, it is apparent from the record that testing of this theory was performed at Bridgestone during Southwell's tenure. This testing, furthermore, followed an "investigation process involving cutting up multiple tires ... cutting up recent production tires, doing some wheel durability testing, doing pull testing, [and] investigating a whole range of variables in the production plant," and it showed that "liner imprint was visible in the great majority of tires analyzed that had component separations. Southwell can knowledgeably rely on this testing, moreover, given that he was one of five or six people associated with it. And the liner pattern theory was, according to Southwell, part of a training course that he taught at Bridgestone, and use in a training course is an indicator of reliability. Finally, although Southwell does not provide documentation of the Bridgestone testing, this is a matter that goes to the weight of Southwell's testimony, not its reliability. Benedict v. Hankook Tire Co. Ltd., 290 F. Supp. 3d 488, 498 (E.D. Va. 2018) (emphasis in original). For these reasons, the court in Benedict permitted Mr. Southwell to testify about his experience at Bridgestone and the tests he conducted to detect defects in failed tires. 6 A similar decision regarding Mr. Southwell was reached by the Western District of Tennessee, which cited Mr. Southwell's "extensive experience working for tire manufacturers in various capacities, including inspecting tires, investigating tire failures, and recording and analyzing data about tire failures and warranties." Cone v. Hankook Tire Co., Ltd., No. 14-1122, 2017 WL 238448, at *2 (W.D. Tenn. Jan. 19, 2017). The court noted that Mr. Southwell's "experience can serve as an adequate basis for an expert opinion." Id. at *2. The court explained: While employed by a tire manufacturer, he conducted testing that he says supports his theory. Defendant may be able to point to sources that disagree with the expert's conclusions, and Hankook will have an opportunity to cross-examine him in that regard, but the opinion is admissible. Cone v. Hankook Tire Co., Ltd., 14-1122, 2017 WL 238448, at *5 (W.D. Tenn. Jan. 19, 2017) (noting that "Southwell personally conducted testing related to this defect while employed by Bridgestone."). Mr. Southwell was permitted to discuss this experience even though certain elements of his work involved confidential Bridgestone trade secrets. Mr. Southwell has also been permitted to discuss his opinions and background at Bridgestone by other courts in recent trial rulings. See, e.g., Breaux v. Goodyear Tire & Rubber Co., La. App. 4 Cir. 5/12/21, 2, 320 So. 3d 1197, 1201, writ denied, La. 10/5/21, 325 So. 3d 363 (Noting Southwell is "a tire analyst who provided his analysis and opinions on their manufacturing defect claim" at trial.); Susrnan v. Goodyear Tire & Rubber Co., No. 8:18CV127, 2020 WL 1065179, at *3 (D. Neb. Mar. 5, 2020) (discussing qualifications and denial of motions in limine regarding Southwell). Nor is this issue unique to Mr. Southwell. Virtually every forensic tire examiner who serves as an expert witness had a prior career for a major tire manufacturer, and they are each bound by similar confidentiality obligations concerning their employer's trade secrets. In this case, 7 Defendants' tire failure expert Joseph Grant owes these same obligations to his former employer, and elements of his prior job experience remain undisclosed. Nonetheless, such experts may properly rely on such experience. As the court in Benedict noted, "Southwell has spent several decades in the business of inspecting, studying, analyzing, and recommending improvements to tires." Benedict, 290 F. Supp. 3d at 494. The court noted that "it is hard to imagine an expert more qualified to testify to the tire manufacturing standard of care." Id. at 506. Here, Mr. Southwell is permitted to rely on that experience and discuss his background in tire testing with the jury. 6. TESTIMONY REGARDING THE PRESENCE OR LACK OF NYLON OR NYLON OVERLAYS IN THE SUBJECT TIRE OR THAT DISCOUNT TIRE SHOULD HAVE RECOMMENDED REMOVAL OF THE SUBJECT TIRE DUE TO THE LACK OF A NYLON OVERLAY Plaintiff agrees that the tire failure was not caused by a lack of a nylon overlay. As such, Plaintiff is not opposed to this motion. Should it become necessary in any way to discuss nylon overlays, Plaintiff's counsel will approach the bench before any reference is made. 7. UNDISCLOSED OR UNPRODUCED TESTING, DATA, OR SUPPORTING MATERIALS Defendant urges an order in limine prohibiting any testimony or references to undisclosed data or studies. This is not a proper subject for a motion in limine. The Rules of Civil Procedure fully address the issue of undisclosed information, and no such motion is needed. 8. ANY REFERENCES BY PLAINTIFF'S EXPERTS OR WITNESSES TO DOCUMENTS OR RECORDS THEY ALLEGEDLY HAVE SEEN IN OTHER CASES INVOLVING DISCOUNT TIRE DT-FL erroneously states that documents seen by Plaintiff's experts in other cases involving DT-FL, but not produced by DT-FL in this case, should be precluded because 1) it is inadmissible hearsay; and 2) only serves to confuse and mislead the jury into thinking that DT-FL 8 is hiding information or not properly responding to discovery. An example of the documents at issue includes a Discount Tire invoice in the possession of Plaintiff's expert Jay Zembower regarding a similar vehicle and similar services as the Bradford vehicle, but a different customer. See Exhibit 1 — Zembower Discount Tire Invoice. However, the document is not inadmissible hearsay because it falls under hearsay exception § 90.803(6), the business records exception, and § 90.803(18), the statement against party-opponent exception. Section 90.803(6) states that a record of regularly conducted business activity, e.g. the Discount Tire invoice itself, is admissible as an exception to hearsay. Further, § 90.803(18) provides that a party's own statement/admission that is offered against the party making the statement/admission is admissible as an exception to hearsay. For example, the content of the Discount Tire invoice are exceptions to hearsay because they are statements made by DT-FL which will be offered against DT-FL. 9. EXPERT OPINIONS NOT DISCLOSED DURING DISCOVERY Defendant urges an order in limine prohibiting any testimony or references to undisclosed expert opinions. This is not a proper subject for a motion in limine. The Rules of Civil Procedure fully address the issue of undisclosed expert opinions, and no such motion is needed. 10. IMPROPER LAY OPINION REGARDING CAUSE OF THE TIRE FAILURE OR THE DECEDENTS' INJURIES OR DEATHS Defendant urges an order in limine prohibiting any improper lay testimony on expert issues, such as the cause of the tire failure or the cause death. This is not a proper subject for a motion in limine. The Rules of Civil Procedure and Rules of Evidence fully address the issue of expert and lay testimony, and no such motion is needed. 9 11. REFERENCES TO PORTIONS OF THE ACCIDENT REPORT Defendants seek to exclude portions of the accident report. Plaintiffs agree that no expert opinions about the cause of the accident or tire failure should be admissible. However, there remains certain information recorded by the responding officer in the report. Most notably, the report contains a measurement of the air pressure on the vehicle's tires. As noted above, the change in air pressure between the accident and the time of service at Discount Tire is a relevant fact in showing that the failed tire was more likely than not present at Discount Tire. 12. TESTIMONY BY DISCOUNT TIRE EMPLOYEES IN OTHER LAWSUITS AND EVIDENCE FROM UNDISCLOSED DISCOUNT TIRE EMPLOYEES Defendant seeks an order precluding the use of depositions of its employees from prior lawsuits, yet any deposition may be used at trial "for any purpose permitted by the Florida Evidence Code." Fla.R.Civ.P. 1.330(a)(1). Thus, the use of deposition testimony from a prior proceeding is permitted if it meets the requirements of the hearsay exception for former testimony found in Section 90.803(22). Under that Rule, "Wormer testimony given by the declarant...in a deposition taken in compliance with law in the course of the same or another proceeding" is admissible if "the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony" in the prior proceeding. Fla. Stat. § 90.803(22). In addition, since "the introduction of these statements is `permitted by the Florida Evidence Code,' they are admissible under Rule 1.330(a)(1) regardless of the witnesses' availability to testify." Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass'n, Inc., 884 So. 2d 1087, 1091 (Fla. 4th DCA 2004). Here, the prior deposition testimony addresses issues relevant to this case, and Defendant had a similar opportunity and motive to defend itself. Furthermore, any prior deposition can be used for impeachment purposes. Failure to permit the use of deposition testimony by a party when 10 such use is expressly authorized constitutes reversible error as a matter of law. Borden Diary Company of Alabama, LLC v. Kuhajda, 152 So.3d 763 (Fla. 1st DCA 2014). As such, a motion in limine is improper on this issue, and the use of any deposition should be resolved through specific objection. 13. EVIDENCE AND TESTIMONY REGARDING DISCOUNT TIRE'S SERVICE PRACTICES AND PROCEDURES NOT RELATED TO OPINIONS RELATING TO THE SUBJECT TIRE'S FAILURE Defendant's motion repeats its argument in its earlier motions that certain facts about the condition of the tires during the time of service should be excluded because they played no role in the tire's failure. However, as explained above, several anomalies in the condition of the tires and the service performed by Discount Tire helps establish that the tires were on the vehicle at the time of the service visit. As such, this evidence will not be offered to establish unrelated negligence, but to support Plaintiff's claim that Discount Tire had custody of the failed tire. 14. CHARACTERIZATION OF PLAINTIFF OR THE DECEDENTS AS "VICTIMS" Motions in limine seeking to exclude the term "victim" are sometimes granted in certain criminal proceedings, but they are typically denied when raised in civil tort trials. For example, a similar motion in limine was denied in the Homestore MDL proceedings. See In re Homestore.com, Inc., CV 01-11115 RSWL CWX, 2011 WL 291176, at *11-12 (C.D. Cal. Jan. 25, 2011) ("The Court DENIES Defendant's Motion in Limine Number 13 to prevent references to the Lead Plaintiff and the Plaintiff Class as `victims.' The Court finds that Defendant has not sufficiently shown that use of this term will be prejudicial under Federal Rule of Evidence 403."). Similarly, the Middle District of Alabama allowed the use of the term in a tort suit against Sears: Defendant "moves to exclude any reference, evidence, testimony or argument by [P]laintiff s counsel that refers to the plaintiff as a `victim,' or words to that effect." Defendant asserts that use of the word, "victim," "incorrectly implies the existence of a `criminal' legal 11 proceeding and serves only to mislead or inflame the jury and prejudice the jury against the [D]efendant." Plaintiff objects, asserting that "'victim' is an accurate characterization of her status," given the "allegations of severe misconduct on the part of one of [Defendant's] employees." Defendant has cited no authority in support of its position, and the court is aware of none. The court finds that the use of the word, "victim," to describe Sears, who alleges that she endured numerous, frequent sexual assaults by her former co-employee, would not unduly prejudice or inflame the jury, and that the balancing test in Rule 403 does not weigh against its use. Sears v. PHP ofAlabama, Inc., 2:05CV304-ID, 2006 WL 1223302, at *3 (M.D. Ala. May 5, 2006). Here, "victim" is likewise an accurate characterization of the decedents' status, who unquestionably lost their lives as victims of a tire failure. 15. HEARSAY TESTIMONY REGARDING PLAINTIFF'S OR DECEDENTS' INJURIES, CONDITION OR PROGNOSIS Defendants seek an order precluding any reference to statements made by medical providers to Mrs. Bradford regarding the injuries, condition, or prognosis of the decedents. However, Plaintiff would not seek to offer such statements to prove the truth of the matter asserted. Instead, such statements are relevant to Mrs. Bradford's claim for mental anguish. If the jury is to understand Mrs. Bradford's mental state in the aftermath of this incident, she must be allowed to relate the specific details of how she was informed of their injuries and death. 16. REFERENCES TO UNDISCLOSED MEDICAL EVIDENCE Defendant urges an order in limine prohibiting any testimony or references to undisclosed medical evidence. This is not a proper subject for a motion in limine. The Rules of Civil Procedure fully address the issue of undisclosed evidence, and no such motion is needed. 17. PLAINTIFF'S INTENDED USE OF JUDGEMENT PROCEEDS Plaintiff does not oppose this motion. 12 18. FAMILY PHOTOS AND VIDEOS Plaintiff will not be offering any family videos, but she does intend to offer family photographs. Defendant seeks to exclude family photographs, but courts "routinely admit pictures of the decedent as evidence." Schaaf v. Midwest Transfer & Logistics, LLC, 07 C 6555, 2010 WL 3075657, at *5 (N.D. Ill. Aug. 5, 2010) "Such photographs would serve merely to, as the plaintiff has stated, `put a face on the decedent.'" Id. In a wrongful death suit, pictures of the decedent with the Plaintiff are likewise relevant. Any issues Defendant has with family photographs can be raised through contemporaneous objection. 19. EXCLUDE ALL WITNESSES AND EXPERTS FROM THE COURTROOM UNLESS TESTIFYING DT-FL seeks to inappropriately invoke "the rule" as to Plaintiff's expert witnesses. The sequestration of expert witnesses in Florida falls under the Florida Rules of Evidence § 90.616. Fla. Stat. Ann. § 90.616. This rule requires that the court order a witness to be excluded when either a party requests for the witness to be excluded or the court orders on its own. Id. Exclusion from the court room typically applies to third-party witnesses; however, "the rule" has four exceptions of individuals that cannot be sequestered. Id. Applicable here, the third exception is for CC a person whose presence a party shows to be essential to presenting the party' s claim or defense," which includes experts. Id. In regard to what constitutes essentiality, an expert that played an integral part in assisting counsel with understanding and performing cross examination of the opposing party' s witness was found to be "essential to the presentation of the State' s ', case and was properly excluded from sequestration. Hilton v. State, 117 So. 3d 742 (Fla. 2013). 13 Here, Plaintiff' s testifying experts fall under this third exception to "the rule" and as such may be present in the court room to hear testimony of other witnesses. 20. ANY QUESTIONING IN VOIR DIRE REGARDING THE ABILITY TO AWARD A SPECIFIC AMOUNT OF DAMAGES DT-FL seeks to impermissibly prevent any questioning of potential jurors on their ability to award a specific amount of damages. Rule 1.431 (b) of the Florida Rules of Civil Procedure states that the parties have the right to examine jurors orally on their voir dire and that the right of the parties to conduct a reasonable examination of each juror orally must be preserved. Fla. R. Civ. P. 1.431(b). Rule 1.431(c) states that a party that objects to a juror for bias or prejudice may issue a challenge for cause and strike the juror. Fla. R. Civ. P. 1.431(c). Importantly, a party may inquire about a juror's views on damages, including non-economic damages. Sisto v. Aetna Cas. & Sur. Co., 689 So. 2d 438 (Fla. 4th DCA 1997). If a prospective juror expresses a definite bias against awarding intangible damages, plaintiffs have a basis for requesting that the prospective juror be excused for cause, depending on the exact questions asked and answers given. See Goldenberg v. Regional Import & Export Trucking Co., 674 So.2d 761 (Fla. 4th DCA 1996); cf. Fazzolari v. City of West Palm Beach, 608 So.2d 927 (Fla. 4th DCA 1992), review denied, 620 So.2d 760 (Fla. 1993). At the very least, Plaintiff has the opportunity to explore the depth of the bias or the basis for the attitude in order to make a determination whether to exercise a peremptory or for cause challenge. See Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972), cert. denied, 275 So.2d 253 (Fla.1973). 21. COURT RULINGS ON MATTERS OUTSIDE JURY'S PRESENCE Plaintiff does not oppose this motion. 14 22. STATEMENTS REGARDING PLAINTIFF AND DISCOUNT TIRE'S ATTORNEYS Plaintiff does not oppose this motion. 23. DISCOUNT TIRE'S DISCOVERY PRACTICES Plaintiff does not oppose this motion. 24. TESTIMONY OF WITNESSES NOT PREVIOUSLY DISCLOSED OR PROPERLY DISCLOSED Defendant urges an order in limine prohibiting testimony from undisclosed witnesses. This is not a proper subject for a motion in limine. The Rules of Civil Procedure and Rules of Evidence fully address the issue of undisclosed witnesses, and no such motion is needed. Obviously, if Plaintiff intends to call a previously undisclosed witness, her counsel would approach the bench before doing so. 25. WHETHER A WITNESS WAS CALLED Plaintiff is generally unopposed to this motion, with the caveat that there may exist circumstances in which it may be proper to comment on the failure to call a witness. Most notably, if Discount Tire's attorneys assure the jury in opening statements that a certain witness will provide evidence, it would be fair during closing arguments to comment on the failure to call that witness. 26. REFERENCE TO NUMBER OF WITNESSES OR EXHIBITS Plaintiff does not oppose this motion. 27. DEMANDS IN FRONT OF THE JURY THAT DISCOUNT TIRE PRODUCE ANY DOCUMENT, STIPULATE TO ANY FACT, OR MAKE ANY AGREEMENT Plaintiff does not oppose this motion. 28. REFERENCE TO GOLDEN RULE Plaintiff does not oppose this motion. 15 29. REFERENCES TO CONFIDENTIAL NATURE OF MATERIALS Plaintiff does not oppose this motion. 30. REFERENCES TO INJURIES / DAMAGES AND LITIGATION INVOLVING NONPARTIES Plaintiff does not oppose this motion. 31. REFERENCES TO LARGE VERDICTS Plaintiff does not oppose this motion. 32. REFERENCES TO DISCOUNT TIRE'S WEALTH, NET WORTH, OR ABILITY TO PAY OR THE COMPARATIVE WEALTH OF THE PARTIES Plaintiff does not intend to make any direct reference to Discount Tire's net worth. Nor does Plaintiff intend to make a direct comparison between the comparative wealth of the parties. Yet Defendant's motion is too vague. The comparative wealth of the parties will be open and obvious to everyone in the courtroom merely due to their respective identities. One is a young widow, while the other is a nationwide retail chain. For this reason, virtually any discussion of the parties could be construed as an indirect reference to their comparative wealth. 33. REFERENCES TO PERSONAL WEALTH OF EXPERT WITNESSES Plaintiff does not oppose this motion. 34. LIABILITY INSURANCE COVERAGE/INDEMNITY COVERAGE Plaintiff does not oppose this motion. 35. DISCOUNT TIRE'S ALLEGED MORAL OR ETHICAL OBLIGATIONS DT-FL' s motion in lirnine to prevent the introduction of moral or ethical obligations is overly broad and vague. Plaintiff cannot discern what obligations DT-FL is referencing and DT- FL fails to specifically identify any evidence which could be used to refer to moral and ethical obligations. DT-FL may be referring to a moral and ethical obligation not to harm or proximately 16 cause the death of its customers. If so, then such obligations are relevant because they are necessarily intertwined with DT-FL' s legal duty in this case as well as other elements of negligence such as foreseeability. Specifically, Plaintiff alleges that DT-FL had a legal duty to inspect the Bradford vehicle's tires, record the DOT number of each tire, and then determine if the tires were too old to remain on the vehicle in accordance with DT-FL policy. DT-FL has this policy because it is aware that aged tires are susceptible to failure which may foreseeably result in serious bodily injury and even death. Plaintiff also alleges that DT-FL breached this duty by failing to properly inspect the tires and record the DOT numbers allowing Mr. Bradford to leave the DT-FL store with fourteen-year-old tires on the front of the vehicle eventually, and foreseeably, resulting in a catastrophic tire failure that killed Mickey and Warren Bradford. 36. APPEALS TO JUROR SELF-INTEREST AND FOR THE COMMUNITY INTEREST ARGUMENTS Plaintiff does not oppose this motion. 37. THAT PLAINTIFF BROUGHT SUIT TO ENHANCE CONSUMER SAFETY Plaintiff does not oppose this motion. 38. RELIGIOUS ACTS/REFERENCES Plaintiff does not oppose this motion. 39. `IN DEATH' PHOTOGRAPHS OF THE DECEDENTS Plaintiff does not intend to offer any photographs of the decedents at the time of their death, and she is unopposed to this motion. If circumstances arise in which such a photograph might become necessary, Plaintiff's counsel will approach the bench. Date: March 16, 2022 Respectfully Submitted, 17 /s/ Skip Edward Lynch Skip Lynch (FL 0021085 Pro Hac Vice) Kaster, Lynch, Farrar & Ball, LLP 125 NE 1st Ave, Ste 3 Ocala, FL 34470 Tel: 352-622-1600 Fax: 352-622-1611 Email: skip@thetirelawyers.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on 03/16/22, the foregoing was electronically filed with the Clerk of Court by using the Florida Courts e-Filing Portal and served on all parties by the e-portal. Respectfully submitted, KASTER, LYNCH, FARRAR & BALL, LLP BY: /s/Skip Edward Lynch Skip Edward Lynch Florida Bar No. 0021085 Skip@thetirelawyers.com josh@thetirelawyers.com Jessica@thetirelawyers.com Bruce R. Kaster Florida Bar No. 200271 brk@thetirelawyers.com daneen@thetirelawyers.com 125 N.E. 1st Avenue, Suite 3 Ocala, FL 34470 Phone: 352-622-1600 Fax: 352-622-1611 ATTORNEYS FOR PLAINTIFF 18 EXHIBIT 1 CUSTOMER INFORMATION VEHICLE INFORMATION STORE LOCATION CODE CC OTY SIZE DESCRIPTION F.E.T. PRICE AMOUNT , . . r r- DISCOLINTTIRE.COM n CUSTOMER INFORMATION VEHICLE INFORMATION STORE LOCATION • 72 r • • • -• r 0 F.Z1 727 ; CODE CC OTY SIZE D€SCRIPTION F.E.T. PRICE AMOUNT NOTICE Le d !1 L', ..70X.7 -V: yr.: bEwit. 7RNSFY.-- 2,22 DISCOUNTTIRE-COM ::Y-7 777 CUSTOMER INFORMATION VEHICLE INFORMATION STORE LOCATION 025 ni71L I _ CODE_ CC OTY SIZE DESCRIPTION F.E.T. PRIC€ AMOUNT UrX77 77,TE !717-1--1 -7N -- F.1P71.-T ] rr.. TF Mv I ..1MATE :TTET-4 EST-1:VTE 1-2.1,:j Nal EXCEED THIC tZCjt4T 17):I7 OU: :"1! ni -fTEN OR OW;IL DT .r.CT ESTIMATE. 7IGNED CgTE r=- 77 -.al PVY7 - 1 !rta, wc-H done yi t!-. the nacss ; ,i, ufle,i th,E.t al: LYut a Ei } and ;:.,11 pa:ts avE. riey, 0: applied to ..ehicle5 Nhidl dl e ny!., ! day.i J611,; labor r.,:k t:S CriLE. You and erdl ,.! may Gperate the aLc,ve o ehiLle fLor the purpuse testin;. !J7-;:i-ss eo not request th7, 72 ". TH7.pl cEd 77jR:713 mandate: a it,00 fee for each 7 ,af 71c:".da. Thf l. rerres.F7t-7 profit ,7 !!-( fa:flity fot- tU i. act se(vi;:a7 Oart: 1;o.;,a. te6N. WZYCLAILf DISCOUNTTIRE.CONI