Preview
Filing # E-Filed 03/04/2022 07:17:10 PM
IN THE CIRCUIT COURT OF THE SEVENTH
JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA
TAMMY BRADFORD, Individually and Case No. 2019-10377-CIDL
as Personal Representative of the Estate
of MICHAEL BLAZE BRADFORD,
Deceased, 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.
DISCOUNT TIRE CO.'S MOTIONS IN LIMINE
Defendant Discount Tire Co. ("Discount Tire"), by and through counsel of record,
submits the following Motions in Limine. Discount Tire requests this Court to issue an order
excluding the evidence and any related testimony as enumerated in this motion. Discount Tire
requests that this evidence be excluded in limine, before the voir dire examination of the jury
panel has begun, before opening statements by counsel, and before the introduction of any
evidence.
Discount Tire further request that Plaintiff, her counsel and witnesses (collectively
"Plaintiff') and all other witnesses in this case be instructed to refrain from making any mention
of the matters contained in this Motion without first approaching the bench and obtaining an
appropriate ruling from the Court out of the hearing of the jury. For each item below, Discount
Tire further notes whether a separate, dedicated supporting brief has been filed.
TABLE OF CONTENTS
1. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT DAVID
SOUTHWELL THAT ARE OUTSIDE OF HIS TIRE FAILURE ANALYSIS
OPINIONS
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
3. ANY REFERENCE TO THE REAR TIRES AND REAR RIMS BEING IMPROPERLY
SIZED
4. ANY REFERENCE TO TAMMY BRADFORD, DECENDENT MICHAEL
BRADFORD OR DECEDENT WARREN BRADFORD BEING "REGULAR"
CUSTOMERS OF DISCOUNT TIRE
5. UNSUPPORTED TESTIMONY AND OPINIONS PROFFERED BY PLAINTIFF'S
DESIGNATED TIRE FAILURE ANALYSIS EXPERT, DAVID SOUTHWELL,
PURPORTEDLY BASED ON UNDISCLOSED "EXPERIENCE"
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
7 UNDISCLOSED OR UNPRODUCED TESTING, DATA, OR SUPPORTING
MATERIALS
8. ANY REFERENCES BY PLAINTIFF'S EXPERTS OR WITNESSES TO
DOCUMENTS OR RECORDS THEY ALLEGEDLY HAVE SEEN IN OTHER CASES
INVOLVING DISCOUNT TIRE
9. EXPERT OPINIONS NOT DISCLOSED DURING DISCOVERY
10. IMPROPER LAY OPINION REGARDING CAUSE OF THE TIRE FAILURE OR THE
DECEDENTS' INJURIES OR DEATHS
11. REFERENCES TO PORTIONS OF THE ACCIDENT REPORT
12. TESTIMONY BY DISCOUNT TIRE EMPLOYEES IN OTHER LAWSUITS AND
EVIDENCE FROM UNDISCLOSED DISCOUNT TIRE EMPLOYEES
13. EVIDENCE AND TESTIMONY REGARDING DISCOUNT TIRE' S SERVICE
PRACTICES AND PROCEDURES NOT RELATED TO OPINIONS RELATING TO
THE SUBJECT TIRE'S FAILURE
14. CHARACTERIZATION OF PLAINTIFF OR THE DECEDENTS AS "VICTIMS"
2
15. HEARSAY TESTIMONY REGARDING PLAINTIFF' S OR DECENDENTS'
INJURIES, CONDITION OR PROGNOSIS
16. REFERENCES TO UNDISCLOSED MEDICAL EVIDENCE
17. PLAINTIFF'S INTENDED USE OF JUDGEMENT PROCEEDS
18. FAMILY PHOTOS AND VIDEOS
19. EXCLUDE ALL WITNESSES AND EXPERTS FROM THE COURTROOM UNLESS
TESTIFYING
20. ANY QUESTIONING IN VOIR DIRE REGARDING THE ABILITY TO AWARD A
SPECIFIC AMOUNT OF DAMAGES
21. COURT RULINGS ON MATTERS OUTSIDE JURY'S PRESENCE
22. STATEMENTS REGARDING PLAINTIFF AND DISCOUNT TIRE'S ATTORNEYS
23. DISCOUNT TIRE'S DISCOVERY PRACTICES
24. TESTIMONY OF WITNESSES NOT PREVIOUSLY DISCLOSED OR PROPERLY
DISCLOSED
25. WHETHER A WITNESS WAS CALLED
26. REFERENCE TO NUMBER OF WITNESSES OR EXHIBITS
27. DEMANDS IN FRONT OF THE JURY THAT DISCOUNT TIRE PRODUCE ANY
DOCUMENT, STIPULATE TO ANY FACT, OR MAKE ANY AGREEMENT
28. REFERENCE TO GOLDEN RULE
29. REFERENCES TO CONFIDENTIAL NATURE OF MATERIALS
30. REFERENCES TO INJURIES/DAMAGES AND LITIGATION INVOLVING NON-
PARTIES
31. REFERENCES TO LARGE VERDICTS
32. REFERENCES TO DISCOUNT TIRE'S WEALTH, NET WORTH, OR ABILITY TO
PAY OR THE COMPARATIVE WEALTH OF THE PARTIES
33. REFERENCES TO PERSONAL WEALTH OF EXPERT WITNESSES
34. LIABILITY INSURANCE COVERAGE/INDEMNITY COVERAGE
35. DISCOUNT TIRE'S ALLEGED MORAL OR ETHICAL OBLIGATIONS
3
36. APPEALS TO JUROR SELF-INTEREST AND FOR THE COMMUNITY INTEREST
ARGUMENTS
37. THAT PLAINTIFF BROUGHT SUIT TO ENHANCE CONSUMER SAFETY
38. RELIGIOUS ACTS/REFERENCES
39. `IN DEATH' PHOTOGRAPHS OF THE DECEDENTS
4
MOTIONS IN LIMINE
1. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT
DAVID SOUTHWELL THAT ARE OUTSIDE OF HIS TIRE FAILURE
ANALYSIS OPINIONS (Separate Brief Filed)
Discount Tire requests that the Court exclude testimony and opinions proffered by David
Southwell that are outside of his tire failure analysis opinion offered in deposition, including but
not limited to any opinions regarding warnings that allegedly should have been given relating to
the subject tire's age and/or the purported standard of care that should be applied to Discount
Tire for purposes of Plaintiff's claims in this matter. As set forth more fully in the separate brief,
David Southwell is not qualified to offer expert opinions regarding warnings issues and, even if
her was, he unambiguously stated during his deposition that he was not offering any opinions
regarding warnings in this lawsuit. Further, Mr. Southwell was not designated to offer opinions
regarding the standard of care relative to Discount Tire and Plaintiff's counsel represented such
on the record during his Mr. Southwell's deposition that he was not designated as an expert on
tire service issues.
Plaintiff should not be allowed to offer any purported expert opinions through or any
testimony of David Southwell on any subjects for which he has not been designated as an expert
witness and for which his opinions have not been disclosed. Allowing Plaintiff to do so would be
improper, prejudicial and unfair and would amount to trial by ambush. Fittipaldi USA, Inc. v.
Castroneves, 905 So.2d 182, (FLA 3rd DCA 2005); Doctors Company v. Plummer, 210 So. 3d
711 (Fla. 5th DCA 2017) (citing to Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1980)).
See generally Brief in Support of Discount Tire Co.'s Motions in Limine Nos. 1-3 to
Exclude Certain Testimony and Opinions by Plaintiff's Designated Expert David Southwell.
GRANTED: DENIED:
5
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 (Separate Brief Filed)
Discount Tire requests that the Court exclude testimony and opinions proffered by David
Southwell or any other witnesses that are critical of the tire air pressure allegedly placed in the
tires by Discount Tire because Mr. Southwell opined that the subject tire's air pressure played no
causal role in the tire's failure. There is no link or nexus between such information and Mr.
Southwell's opinions as to cause of the subject tire's failure and any such testimony would be
irrelevant and immaterial to the issues before the Court. Such testimony is also unfairly
prejudicial to Discount Tire, would likely confuse the issues and mislead the jury, and will waste
the Court's time and resources. Florida Evidence Code §§90.401, 90.403 and 90.702.
See generally Brief in Support of Discount Tire Co.'s Motions in Limine Nos. 1-3 to
Exclude Certain Testimony and Opinions by Plaintiff's Designated Expert David Southwell.
GRANTED: DENIED:
3. ANY REFERENCE TO THE REAR TIRES AND REAR RIMS BEING
IMPROPERLY SIZED (Separate Brief Filed)
It is anticipated that Plaintiffs will attempt to proffer testimony alleging that the rear tires
were placed on rims that were too narrow. It is undisputed that neither of those tires failed or
played any role in the subject incident. If such testimony is allowed, it would require the
introduction of unnecessary evidence to determine whether the installation of the rear tires on the
rims caused any issues with such tires and whether such issues had any causal effect of the
subject incident. Plaintiff's designated tire failure analysis expert, David Southwell, has testified
that the mounting of the non-subject tires on their respective wheels did not contribute to cause
the accident in question. Therefore, such testimony would be irrelevant and immaterial to the
6
issues before the Court, is unfairly prejudicial to Discount Tire, would likely confuse the issues
and mislead the jury, and will waste the Court's time and resources. Florida Evidence Code
§§
See generally Brief in Support of Discount Tire Co.'s Motions in Limine Nos. 1-3 to
Exclude Certain Testimony and Opinions by Plaintiff's Designated Expert David Southwell.
GRANTED: DENIED:
4. ANY REFERENCE TO TAMMY BRADFORD, DECEDENT MICHAEL
BRADFORD OR DECEDENT WARREN BRADFORD BEING "REGULAR"
CUSTOMERS OF DISCOUNT TIRE (Separate Brief Filed)
Discount Tire seeks to exclude any and all comments, inferences, evidence, testimony,
visual aids, demonstrative evidence, or questions eliciting testimony that infers any of the
Bradford family were "regular" customers of Discount Tire, Discount Tire was their usual place
to purchase tires, or similar inference that they normally purchased all of their tires from
Discount Tire. Discount Tire is raising this issue because David Southwell made that reference
and inference during his deposition and it is factually inaccurate. Further, any such proffered
testimony or purported evidence would be inadmissible hearsay designed to confuse and mislead
the jury into believing that the Bradfords' always purchased tires from Discount Tire leading up
to the incident. Florida Evidence Code §§90.801, et seq. See New York Life Ins. Co. v.
Childs, 252 So.2d 288, 290 (Fla. 3d DCA 1971) (finding no error in trial court's exclusion of
testimony when the proffer demonstrated that the testimony was neither relevant nor material to
the issues involved); see also Maklakiewicz v. Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA
1995); cf. Linn v. Fossum, 894 So.2d 974, 979 (Fla. 1st DCA 2004) (explaining that a medical
doctor's opinion testimony was admissible when it was based partly on inadmissible hearsay and
partly on admissible evidence because a medical doctor would normally rely, in part, on
7
conversations with others in forming an opinion); All Am. Pool Surface, Inc. v. Jordan, 870
So.2d 885, 886 (Fla. 3d DCA 2004).
Further, the records speak for themselves regarding Michael Bradford's actions during
his visits to Discount Tire.
See generally Discount Tire's Brief in Support Motion in Limine No. 4 to Exclude Any
Reference to Michael Bradford's Tire Purchasing Habits.
GRANTED: DENIED:
5. UNSUPPORTED TESTIMONY AND OPINIONS PROFFERED BY
PLAINTIFF'S DESIGNATED TIRE FAILURE ANALYSIS EXPERT DAVID
SOUTHWELL, PURPORTEDLY BASED ON UNDISCLOSED "EXPERIENCE"
(Separate Brief Filed)
It is anticipated that Plaintiff may try to offer opinions and testimony by Mr. Southwell
which purportedly are based on his prior experience in the tire industry while employed by
Bridgestone Australia, but which he refuses to disclose or discuss due to alleged confidentiality
concerns. Therefore, such opinions are not supported by any information and/or materials that
have been produced to Discount Tire. Consequently, any such unsupported proffered opinions or
testimony by David Southwell should not be allowed because it deprives Discount Tire of its
right to cross-examination. This results in a fundamentally unfair proposition for Discount Tire,
who is entitled to fully explore the basis on which Mr. Southwell bases his opinions. Therefore,
Mr. Southwell should be precluded from testifying as to any opinions based in whole or in part
on undisclosed facts relating to his alleged "experience" at Bridgestone Australia. He cannot
simply state his opinions are based on his alleged "experience" or on documents, research, and
testing he has seen, but then when challenged on cross examination refuse to discuss that
experience. Florida Evidence Code §§90.401, 90.403 and 90.702.
8
See generally Discount Tire's Brief in Support Motion in Limine No. 5 to Exclude
Unsupported Testimony and Opinions Proffered by Plaintiff's Designated Tire Failure Analysis
Expert David Southwell, Purportedly Based on Undisclosed "Experience".
GRANTED: DENIED:
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 (Separate Brief Filed)
Plaintiffs designated tire failure analysis expert, David Southwell, has opined that the
lack of a nylon overlay (or a nylon cap ply or belt edge cap strips) in the subject tire had no
causal relationship to the subject tire's failure or continued use before wear out. Therefore, any
testimony proffered by Plaintiff or her witnesses regarding nylon overlays and/or the absence of
a nylon overlay in the subject tire is not relevant to the probative issues in this matter. Florida
Evidence Code §§ Similarly, any testimony regarding whether Discount Tire
should have recommended removal of the subject tire because of the lack of a nylon cap ply or
belt edge cap strips is irrelevant. Id. Plaintiff should not be allowed to introduce any testimony,
including but not limited to any testimony from Mr. Southwell's deposition, regarding issues
about nylon.
See generally (1) Discount Tire's Brief in Support Motion in Limine No. 6 to Exclude
Testimony by Plaintiffs Designated Expert David Southwell Regarding Discount Tire's
Obligation to Address Whether the Subject Tire was Designed with a Nylon Cap Ply or Belt
Edge Cap Strips and (2) Discount Tire's Motion to Exclude the Testimony of Plaintiffs
Designated Expert, David Southwell, or in the Alternative, to Limit his Testimony.
GRANTED: DENIED:
9
7. UNDISCLOSED OR UNPRODUCED TESTING, DATA, OR SUPPORTING
MATERIALS
Any mention of preliminary, interim, or past results of studies or testing that have not
been published, or for which Plaintiff has not timely provided all supporting data, should be
precluded. It would be prejudicial and improper to allow witnesses to offer opinions, lay or
expert, that are purportedly based on undisclosed tests, data, or other undisclosed supporting
material. Allowing any expert testimony during Plaintiff's case in chief concerning previously
undisclosed literature, studies, or testing would be prejudicial because (a) it was not disclosed to
defendant as required by Florida law and (b) Discount Tire and its expert witnesses did not have
the opportunity to review such information prior to trial. Therefore, it would be prejudicial and
improper to allow witnesses to offer opinions, lay or expert, which are purportedly based on
undisclosed literature, studies, tests, data, or other supporting material. Florida Evidence Code
§§ Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, (FLA 3rd DCA 2005);
Dirling v. Sarasota County Government, 871 So.2d 303, (Fla. 1st DCA 2004); see Fla. Stat.
90.702.
GRANTED: DENIED:
8. ANY REFERENCES BY PLAINTIFFS' EXPERTS OR WITNESSES TO
DOCUMENTS OR RECORDS THEY ALLEGEDLY HAVE SEEN IN OTHER
CASES INVOLVING DISCOUNT TIRE
Any mention of any documents purportedly seen by Plaintiffs experts in other cases
involving Discount Tire, but not produced in this case, should be precluded. Such references are
inadmissible hearsay and are only designed to confuse and mislead the jury into believing that
Discount Tire is hiding information or not properly responding to discovery. Florida Evidence
Code §§90.801, et seq. Zabner v. Howard Johnson's Inc. of Fla., 227 So. 2d 543, 546 (Fla. Dist.
Ct. App. 1969)("Introduction of the element of fifteen other lawsuits could have had no effect
10
other than to try to prejudice the jury against the plaintiff."). Such issues are not for presentation
to the jury and documents from other cases that have not been requested in this matter are
irrelevant. Moreover, it would be prejudicial for witnesses to offer testimony about the
purported contents of documents that are not part of this matter and are not available for cross
examination. Florida Evidence Code §§
GRANTED: DENIED:
9. EXPERT OPINIONS NOT DISCLOSED DURING DISCOVERY
Florida law requires the parties to provide the general substance of the expert's mental
impressions and opinions and a brief summary of the basis for them. See Tetrault v. Fairchild,
799 So.2d 226 (Fla. 5th DCA 2001)(holding that it was reversible error to allow a radiologist to
testify based on MRI images as to causation, when the radiologist was identified as nothing more
than a post accident emergency room radiologist); Doctors Co. v. State Department of Insurance,
940 So.2d 466 (Fla. 1st DCA 2006).(finding that the trial court properly sustained objections to
previously undisclosed opinion testimony); Galvez v. Merelo, 849 So.2d 1158 (Fla. 1st DCA
2003) (holding that the trial court abused its discretion by permitting expert testimony which was
previously undisclosed). Accordingly, Discount Tire respectfully requests an in limine order
limiting Plaintiff's experts to direct examination testimony only on issues which were disclosed
in their deposition testimony and, in particular, limiting the experts only to opinions and to the
bases and reasons for those opinions that were fully disclosed in their depositions.
GRANTED: DENIED:
10. IMPROPER LAY OPINION REGARDING CAUSE OF THE TIRE FAILURE OR
THE DECEDENTS' INJURIES OR DEATHS
Offering any evidence of, or referring to, or soliciting the opinion of any lay person
regarding Discount Tire's conduct, the standard of care, the cause of the tire failure or the death
11
of the decedents. A lay witness is unqualified and does not have the expertise that would allow
him or her to determine those matters. Christian v. State, 693 So. 2d 990, 993 (Fla. 1st DCA
1996); Town of Palm Beach v. Palm Beach County, 460 So. 2d 879, 882 (Fla. 1985); See The
Florida Bar v. Clement, 662 So. 2d 690 (Fla. 1995).
GRANTED: DENIED:
11. REFERENCES TO PORTIONS OF THE ACCIDENT REPORT
Any evidence from, reference to, or mention of any portion of an accident report that
constitutes inadmissible hearsay for which no valid hearsay exception exists. Florida Evidence
Code §§90.801, et seq. See McTevia v. Schrag, 446 So. 2d 1183, 1184 (Fla. 4th DCA 1984).
Even if an accident report itself may qualify under the public records exception, portions of the
accident report may be inadmissible because it is untrustworthy for other reasons, including that
it may constitute a speculative statement that is not based on the requisite knowledge, training
and experience for an experts' opinion and/or may contain a reporting officer's opinions and
conclusions that the officer is not qualified to address. Florida Evidence Code §§
Fla. Stat. 316.066 90.702. Durse v. Henn, 68 So. 3d 271, 275 (Fla. 4th DCA 2011).
GRANTED: DENIED:
12. TESTIMONY BY DISCOUNT TIRE EMPLOYEES IN OTHER LAWSUITS AND
EVIDENCE FROM UNDISCLOSED DISCOUNT TIRE EMPLOYEES
Any evidence or documents regarding any testimony by Discount Tire employees in
other lawsuits should be excluded. Testimony in other lawsuits is irrelevant to the claims at issue
in this case because such testimony pertains to other matters that are not shown to be
substantially similar under Florida law, and are thus inadmissible. See Zabner v. Howard
Johnson's Inc. of Fla., 227 So. 2d 543, 546 (Fla. Dist. Ct. App. 1969)( "Introduction of the
element of fifteen other lawsuits could have had no effect other than to try to prejudice the jury
12
against the plaintiff."). Any evidence, either testimonial or documentary, of any other lawsuit,
incident, or claim involving any tire sold or serviced by Discount Tire should be precluded
unless and until Plaintiff first shows by competent evidence the substantial similarity between
the other matter and the accident that is the subject of this lawsuit. Id; See Perret v. Seaboard
Coast Line R.R. Co., 299 So.2d 590, 592 (Fla.1974). This showing is necessary to establish that
the probative value of the evidence of the other incident(s) is not substantially outweighed by the
prejudicial effect of that evidence and does not merely constitute inadmissible character
evidence. Id. Florida Evidence Code §§
GRANTED: DENIED:
13. EVIDENCE AND TESTIMONY REGARDING DISCOUNT TIRE'S SERVICE
PRACTICES AND PROCEDURES NOT RELATED TO OPINIONS RELATING
TO THE SUBJECT TIRE'S FAILURE
Any evidence concerning alleged tire service practices and procedures by Discount Tire
that are not related to the opinions of Plaintiff's experts' relating to the subject tire's failure
should be excluded. See New York Life Ins. Co. v. Childs, 252 So.2d 288, 290 (Fla. 3d DCA
1971) (finding no error in trial court's exclusion of testimony when the proffer demonstrated that
the testimony was neither relevant nor material to the issues involved); see also Maklakiewicz v.
Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA 1995); cf. Linn v. Fossum, 894 So.2d 974, 979 (Fla.
1st DCA 2004) (explaining that a medical doctor's opinion testimony was admissible when it
was based partly on inadmissible hearsay and partly on admissible evidence because a medical
doctor would normally rely, in part, on conversations with others in forming an opinion); All Am.
Pool Surface, Inc. v. Jordan, 870 So.2d 885, 886 (Fla. 3d DCA 2004). For example, Plaintiff
may attempt to elicit testimony that the rear tires were mounted on rims that were too narrow, or
the air pressure placed in the tires did not match the vehicle placard, or the front tires and rear
13
tires did not match in size, but none of those issues played a role in the failure of the front left
tire or caused the crash. Such testimony would only be proffered as improper character evidence
intended to confuse and mislead the jury into believing Discount Tire must have been negligent
in the other service issues for which they complain. See John Mayo v. Publix Supermarkets, Inc.,
686 So. 2d 801 (Fla. 4th DCA 1997), Wal-Mart Stores, Inc., v. Wittke, 202 So.3d 929 (Fla. 2nd
DCA 2016); Dominguez v. Publix Super Mkts., Inc., 187 So.3d 892 (Fla. 3d DCA 2016); Cave v.
Wal-Mart Stores East LP., 2017 WL 10276020, (M.D. Florida 2017); Pollock v. Florida Dept. of
Highway Patrol, 882 So.2d 928 (Fla. 2004). Florida Evidence Code §90.403.
GRANTED: DENIED:
14. CHARACTERIZATION OF PLAINTIFF OR THE DECEDENTS AS "VICTIMS"
Plaintiff, her counsel, witnesses and experts should be precluded from characterizing
Plaintiff or the Decedents as "victims" in front of the jury. Such characterization of Plaintiff and
Decedents is calculated to arouse the sympathy, prejudice or passion of the jury and should not
be allowed. Florida Evidence Code §90.403.
GRANTED: DENIED:
15. HEARSAY TESTIMONY REGARDING PLAINTIFF'S OR DECEDENTS'
INJURIES, CONDITION OR PROGNOSIS
Discount Tire moves this Court for its order in limine prohibiting Plaintiff's counsel from
asking any questions, eliciting any testimony from any witness or making any reference to
hearsay testimony regarding what any person, first responder or doctor told any person about the
injuries, condition, prognosis, or anything else regarding Plaintiff or the Decedents. Florida
Evidence Code §§90.801, 90.804(2)(b)et seq.
GRANTED: DENIED:
14
16. REFERENCES TO UNDISCLOSED MEDICAL EVIDENCE
All parties, their attorneys and all witnesses should be prohibited from referring to,
commenting upon, or otherwise attempting to introduce at trial any medical evidence that was
not disclosed properly during discovery in response to requests, including any evidence relating
to Plaintiff's and/or the Decedents' injuries, medical condition, and/or medical bills not produced
in this case, and testimony or materials from any physician or other medical professional or
facility not previously disclosed. In addition, any "expert" evidence, including testimony
attempting to ascribe a dollar value to intangible elements of recovery, such as mental anguish,
physical impairment, or loss of the value or enjoyment of life should also be excluded. Such
testimony would not assist the jury but would rather invade the province of the jury, and it would
be irrelevant, unreliable, and inadmissible. Florida Evidence Code §§ See Binger
v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).
GRANTED: DENIED:
17. PLAINTIFF'S INTENDED USE OF JUDGMENT PROCEEDS
Any evidence or documents regarding, the questioning of any witness, or otherwise
mentioning in the presence of the jury, what Plaintiff intends to do with the proceeds of any
award she might receive in this litigation. Regardless of any purported altruistic purpose Plaintiff
may or may not have, such purpose is neither relevant to, nor probative of, any facts or issues in
this case. Rather, it is highly prejudicial and is an improper attempt to garner the sympathy of
the jury. Florida Evidence Code §§
GRANTED: DENIED:
18. FAMILY PHOTOS AND VIDEOS
Plaintiff should be precluded from seeking to introduce into evidence, exhibiting to the
15
jury or jury panel, and/or showing to the jury or jury panel, in any manner, photographs, photo
albums, scrapbooks, or memorial videos because they could contain inadmissible hearsay.
Florida Evidence Code §§90.801, et seq. The only purpose of exhibiting photographs,
scrapbooks, videos, and so forth would be to arouse the sympathy of the jury, and would not aid
the jury in determining the issues in this case. Florida Evidence Code §§
GRANTED: DENIED:
19. EXCLUDE ALL WITNESSES AND EXPERTS FROM THE COURTROOM
UNLESS TESTIFYING
The Court should exercise its discretion pursuant to Florida Evidence Code §90.616 and
exclude all witnesses so that they cannot hear the testimony of other witnesses, except the parties
or a designated officer or employee of each party, not a natural person.
GRANTED: DENIED:
20. ANY QUESTIONING IN VOIR DIRE REGARDING THE ABILITY TO AWARD
A SPECIFIC AMOUNT OF DAMAGES
Any questioning of potential jurors during voir dire on their ability to award a specific
amount of damages should be precluded. Such questioning is argumentative and improper.
Plaintiff's counsel should not be allowed to ask specific questions that are necessarily related to
the facts of the case that will not be before the prospective jurors at that time. Such questioning
would improperly require the prospective jurors to arrive at opinions or conclusions without first
hearing the evidence. Florida Evidence Code §§ (Sisto v. Aetna Cas. & Surety
Co., 689 So. 2d 438, (Fla. 4th DCA 1997)(permitting inquiry into ones feeling of non-economic
damages, but not committing to damages).
GRANTED: DENIED:
21. COURT RULINGS ON MATTERS OUTSIDE JURY'S PRESENCE
16
Any mention of any action of the Court in ruling upon any matter, including these
Motions in Limine, prior to the trial of this case or during the trial of this case where the ruling is
made outside of the presence of the jury. Further, Discount Tire requests an instruction that no
mention or reference be made about the pleadings, motions (including these Motions in Limine),
or other requests filed by Discount Tire, or that such requests filed by Discount Tire were of a
particular nature. Florida Evidence Code §§
GRANTED: DENIED:
22. STATEMENTS REGARDING PLAINTIFFS AND DISCOUNT TIRE'S
ATTORNEYS
Any reference by the parties regarding the following topics: (1) that the attorneys for
Discount Tire in this lawsuit regularly represent Discount Tire, other defendants, large
corporations, manufacturers, insurance companies, or the like; (2) that the attorneys for Discount
Tire in this lawsuit specialize in cases involving tire failures or vehicle accidents; and (3) that the
attorneys for Discount Tire in this lawsuit represent Discount Tire across the county in lawsuits
"just like this one," or the like. Such references are merely calculated to arouse the sympathy,
prejudice or passion of the jury. Florida Evidence Code §§ Discount Tire further
requests the Court to prohibit Plaintiff s counsel, Plaintiff, and her witnesses from referring to or
mentioning the number of attorneys representing or appearing on behalf of Discount Tire in this
matter, and/or that some of Discount Tire's attorneys are not local practitioners. Id.
In addition, any reference to Plaintiff or her attorneys as "locals" should be precluded.
The residency of Plaintiff and her counsel is not an issue before the Court. The only purpose of
such a reference would be to unfairly prejudice Discount Tire and generate further sympathy on
Plaintiffs behalf. Accordingly, any such reference is inadmissible and must be excluded.
Florida Evidence Code §§
17
GRANTED: DENIED:
23. DISCOUNT TIRE'S DISCOVERY PRACTICES
Any reference to discovery issues (i.e., that Discount Tire misused discovery practices or
attempted to "hide" documents from the Plaintiff) should be precluded. The Court should also
preclude Plaintiff, her attorneys, and her witnesses from stating or suggesting that documents or
information were requested by Plaintiff and not provided by Discount Tire, including, but not
limited to, any assertions made in front of the jury that Discount Tire has failed to produce any
document in this case that it has allegedly produced in another case. It is axiomatic that any
issues Plaintiff may have had with Discount Tire's discovery practices should have been
addressed through discovery motions before trial. Any criticisms of Discount Tire's discovery
practices at trial would be irrelevant, highly prejudicial, confusing to the jury, and have no
probative value. Florida Evidence Code §§
GRANTED: DENIED:
24. TESTIMONY OF WITNESSES NOT PREVIOUSLY DISCLOSED OR
PROPERLY DISCLOSED
Any mention of, reference to or attempt to introduce the testimony of any witnesses,
whether fact or expert, who have not been timely and properly revealed by Plaintiff in her
pretrial disclosures and discovery responses propounded pursuant to the Florida Rules of Civil
Procedure. Allowing Plaintiff to introduce testimony from undisclosed witnesses would operate
as an unfair surprise to Discount Tire and would permit an abuse of the discovery process,
prohibiting Discount Tire from a fair and adequate opportunity to meet and rebut the issues
raised by Plaintiff's purported evidence. Florida Evidence Code §§ Binger v.
King Pest Control, 401 So. 2d 1310 (Fla. 1980)). Fla. R. Civ. Pro. 1.280.
GRANTED: DENIED:
18
25. WHETHER A WITNESS WAS CALLED
Plaintiff should not make any inquiry into or mention that Discount Tire designated,
refused to designate, or has not called any particular witness that would be equally available to
all parties through the subpoena process. Terry v. State, 668 So.2d 954, 963 (Fla.1996).
GRANTED: DENIED:
26. REFERENCE TO NUMBER OF WITNESSES OR EXHIBITS
Any reference to, or mention of, the number of witnesses, including expert witnesses,
testifying on behalf of Discount Tire, or any suggestion that it is somehow unfair that Discount
Tire has or will call a greater number of witnesses or experts to testify, or present a great number
of exhibits. Florida Evidence Code §§
GRANTED: DENIED:
27. DEMANDS IN FRONT OF THE JURY THAT DISCOUNT TIRE PRODUCE
ANY DOCUMENT, STIPULATE TO ANY FACT, OR MAKE ANY
AGREEMENT
Any demand or request, in the presence of the jury, that Discount Tire or its attorneys:
(1) produce documents or instruments; (2) stipulate to any fact; or (3) make any sort of
agreement should be precluded. It is axiomatic that any issues Plaintiff had with Discount Tire's
actions in this regard should have been addressed through discovery motions before trial. Such
demands or requests at trial would be irrelevant, highly prejudicial, confusing to the jury, and
have no probative value. Florida Evidence Code §§
GRANTED: DENIED:
28. REFERENCE TO GOLDEN RULE
Any reference or argument to the jury seeking to apply the "Golden Rule" by asking the
jury to put themselves in the shoes of Plaintiff or any similar argument. Such arguments or
19
references: 1) are irrelevant to the resolution of any question of material fact; 2) serve to
improperly inflame the jury; and 3) have a tendency to confuse and mislead the jury. Florida
Evidence Code §§ In addition, such arguments ask the jury to consider the case
from an improper viewpoint. See Philip Morris USA, Inc. v. Ledoux, 230 So. 3d 530 (Fla. 3d
DCA 2017); See National Car Rental Systems v. Bostic, 423 So. 2d 915 (Fla. 3d DCA 1982);
SDG Dadeland Assoc., Inc. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008).
GRANTED: DENIED:
29. REFERENCES TO CONFIDENTIAL NATURE OF MATERIALS
Any mention or reference, made in any manner, regarding the classification of any
document, report, statement or other material, information or tangible item as "Confidential"
under the Protective Order, or any suggestion of impropriety as to information that has been
redacted or partially redacted under the terms of the Protective Order entered by the Court in this
matter should be precluded. The Protective Order agreed to by the Court in this matter provides
for such a designation, and the method of challenging the designation. Any comments about
"confidentiality" or insinuations of impropriety as to redacted information are not relevant to any
issue in this case, and would be highly prejudicial to Discount Tire. Florida Evidence Code
§§
GRANTED: DENIED:
30. REFERENCES TO INJURIES/DAMAGES AND LITIGATION INVOLVING
NON-PARTIE S
Any reference to injuries sustained by, or litigation and settlements involving, those
persons who are not parties to this case. Any such evidence would be completely irrelevant.
Florida Evidence Code §§ Only the claims of the named Plaintiff are at issue, and
the specific injuries/damages and settlements involving other litigants in other cases have no
20
bearing on this case. The only purpose of reference to such issues would be to unfairly prejudice
Discount Tire, to generate sympathy on Plaintiff's behalf, and to try to inflame the jury and
evoke an emotional response. Accordingly any such evidence or argument is inadmissible and
must be excluded. Florida Evidence Code §90.403.
GRANTED: DENIED:
31. REFERENCES TO LARGE VERDICTS
Any reference to large verdicts in other lawsuits should be precluded. Florida Evidence
Code §§ .
GRANTED: DENIED:
32. REFERENCES TO DISCOUNT TIRE'S WEALTH, NET WORTH, OR ABILITY
TO PAY OR THE COMPARATIVE WEALTH OF THE PARTIES
Discount Tire requests the Court to preclude Plaintiff, including her attorneys and
witnesses, from making any reference to Discount Tire's wealth, net worth, or ability to pay.
Whether or not Discount Tire has any purported wealth, profits, earnings, revenue, annual sales,
net worth, or ability to pay is not relevant to the facts in this case or to the applicable law, as it
will not make the existence of any fact that is of consequence, i.e., whether the subject tire was
allegedly defective, more or less probable than it would be without the evidence. Such references
will serve only to mislead or confuse the jury and are highly prejudicial to Discount Tire.
Florida Evidence Code §§
Similarly, any references or statements comparing the relative wealth of the parties,
including such comments as "poor plaintiff' or to the fact that Discount Tire is a large
corporation and as such is "wealthy" or has substantial financial resources should be precluded.
Any such comments would be irrelevant, unduly prejudicial, and cause confusion of the issues
before the jury. Florida Evidence Code §§
21
GRANTED: DENIED:
33. REFERENCES TO PERSONALWEALTH OF EXPERT WITNESSES
Any mention or reference regarding the personal finances or personal wealth of Discount
Tire's expert witnesses should be precluded. Any evidence of this nature is not relevant to any
issue in this case. Furthermore, such references only seek to inflame the jury and are highly
prejudicial. Because such matters are neither relevant nor admissible in this case, they should be
excluded. Florida Evidence Code §§
GRANTED: DENIED:
34. LIABILITY INSURANCE COVERAGE/INDEMNITY COVERAGE
Any mention or references by any party, either directly or indirectly, that Discount Tire is
or may be covered by some form of liability insurance and/or indemnity agreements covering in
whole or in part the damages Plaintiff alleges. This includes, but is not limited to, the use of the
words from which a jury might infer the existence of possible insurance such as "insurance
agent," "claim," "coverage," "premiums," "carrier," "adjuster," or other such words, in any form.
Florida law states that evidence of insurance coverage is inadmissible upon the issue of whether
a party acted negligently or wrongfully. See Levin v. Hankls, 356 So. 2d 21 (Fla. 4th DCA 1978).
Such evidence is not relevant to the defect or negligence allegations made by Plaintiffs in this
case and would only serve to potentially inflame the jury against Discount Tire. Florida
Evidence Code §§
GRANTED: DENIED:
35. DISCOUNT TIRE'S ALLEGED MORAL OR ETHICAL OBLIGATIONS
Any reference to any purported ethical or moral obligations on the part of Discount Tire,
or its employees, is inadmissible. Discount Tire requests the Court preclude Plaintiff, including
22
her attorneys and witnesses, from making any such references. Whether or not Discount Tire and
its employees have any purported ethical or moral obligation to do anything is not relevant to the
facts in this case or to the applicable law. Such references only seek to inflame the jury and are
highly prejudicial. Because such matters are neither relevant nor admissible in this case, they
should be excluded. Florida Evidence Code §§
GRANTED: DENIED:
36. APPEALS TO JUROR SELF-INTEREST AND FOR THE COMMUNITY
INTEREST ARGUMENTS
Discount Tire moves this Court for an order in limine prohibiting Plaintiff's counsel from
asking any questions or eliciting any testimony from witnesses, and from making any statement
or argument encouraging the jury to decide this case based on a juror's self-interest or for the
community's interest through golden rule arguments or similar arguments. A golden rule
argument is the suggestion by counsel that jurors should place themselves in the position of a
party, a victim, or the victim's family members. Such arguments or references: (1) are irrelevant
to the resolution of any question of material fact; (2) would serve to improperly inflame the jury;
and (3) would confuse the jury on the issues. Florida Evidence Code §§ The trial
court instructs the jury and provides a verdict form specifically for the purpose of keeping the
jury on task in terms of deciding the case based on the law and the facts. Such arguments ask the
jury to consider the case from an improper viewpoint which is improper. See National Car
Rental Systems v. Bostic, 423 So. 2d 915 (Fla. 3d DCA 1982); SDG Dadeland Assoc., Inc. v.
Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008). Further, Plaintiff should also be precluded
from arguing that the jury or the jury panel should attempt to make a defendant "know what the
price of justice is in our community" or should "send the defendants' management a message" or
any such inflammatory and prejudicial language which is calculated to have the jury assess
23
damages on some basis other than proper compensation as provided by the Court's charge to the
jury. Additionally, no statements or appeal should be made that include: (1) invoking the jury to
be the "conscience of the community" in this case with respect to this verdict, or (2) encouraging
the jury to do something by its verdict to make the community proud. Any such statement or
appeal improperly suggests to the jury that it should rule on matters not relevant to the case at bar
and that some award of damages is expected. See National Car Rental Systems v. Bostic, 423
So. 2d 915 (Fla. 3d DCA 1982); SDG Dadeland Assoc., Inc. v. Anthony, 979 So.2d 997, 1003
(Fla. 3d DCA 2008).
GRANTED: DENIED:
37. THAT PLAINTIFF BROUGHT SUIT TO ENHANCE CONSUMER SAFETY
Any mention or reference, either directly or indirectly, that this lawsuit is brought for the
purposes of establishing consumer safety standards, to enforce consumer safety principles, or due
to a desire to enhance consumer safety should be precluded. Regardless of any purported
altruistic purpose Plaintiff may or may not have had in filing this lawsuit, such purpose is neither
relevant to, nor probative of, any facts or issues in this case. Florida Evidence Code §§
In addition, such an argument or statement is misleading in that Plaintiff seeks monetary,
not injunctive, relief in this suit. Moreover, such references would serve only to inflame and
prejudice the jury, or create unfair bias and sympathy for Plaintiff, and should therefore be
precluded. Florida Evidence Code §90.403.
GRANTED: DENIED:
38. RELIGIOUS ACTS/REFERENCES
Any improper and irrelevant Biblical or religious references or acts by any party, counsel,
or witness. One's religious beliefs are not material to the issue of credibility as a witness.
24
Florida Evidence Code §90.611. A witness's religious beliefs do not have any probative value as
to his or her truthfulness. Additionally, use of such evidence is likely to have a prejudicial effect
on the jury. Florida Evidence Code §90.403.
GRANTED: DENIED:
39. `IN DEATH' PHOTOGRAPHS OF THE DECEDENTS
Any and all photographs or dramatizations, exposing sounds, photographs of the
Decedents, or any "gory" death photographs at the accident scene, hospital, autopsy, grave site
memorial, or otherwise, as such photographs are offered only to inflame the minds of the jury.
Florida Evidence Code §§ See Conner v. State, 987 So. 2d 130, 133 (Fla. 2d DCA
2008);.Swan v. State, 322 So. 2d 485 (Fla. 1975); State v. McClain, 525 So. 2d 420, 422 (Fla.
1988)(emphasis added)(quoting Charles W. Ehrhardt, Florida Evidence, § 403.1 at 100- 03 (3d
ed.1984)). Photographic evidence is inadmissible if it is calculated to arouse the sympathy,
prejudice, or passion of the jury where the photographs do not serve to illustrate disputed issues
or aid the jury in understanding the case.). Such evidence is not relevant to any of the questions
before the jury, and should be excluded.
GRANTED: DENIED:
Discount Tire respectfully prays that the above and foregoing Motions in Limine be, in
all things, sustained and the Court instruct Plaintiff, counsel for Plaintiff, and all of Plaintiff's
experts and witnesses accordingly. Discount Tire further respectfully prays for such other and
further relief to which it may show itself to be justly entitled.
25
Respectfully submitted,
JOHNSON, TRENT & TAYLOR, L.L.P.
By: /s/ T Christopher Trent
T. CHRISTOPHER TRENT
Admitted Pro Hac Vice
Texas Bar No. 20209400
919 Milam, Suite 1500
Houston, Texas 77002
Telephone: (713) 222-2323
Facsimile: (713) 222-2226
Email: ctrent@johnsontrent.com
QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
DAVID M. TARLOW
Florida Bar No. 893684
2400 East Commercial Blvd., Suite 520
Fort Lauderdale, Florida 33308
Telephone: (954) 523-7008
Facsimile: (954) 523-7009
Email: dtarlow@qpwblaw.com
ATTORNEYS FOR DEFENDANT
DISCOUNT TIRE CO.
CERTIFICATE OF SERVICE
We certify that a true and correct copy of the foregoing has been served via the Florida E-
Filing Portal on this 4th day of March, 2022 to:
Skip E. Lynch Via E-Serve and Email
Bruce R. Kaster
KAS l'ER, LYNCH, FARRAR & BALL, LLP
125 N.E. 1st Avenue, Suite 3
Ocala, Florida 34470
skip@thetirelawyers.com
Preview
Filing # E-Filed 03/04/2022 07:17:10 PM IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA TAMMY BRADFORD, Individually and Case No. 2019-10377-CIDL as Personal Representative of the Estate of MICHAEL BLAZE BRADFORD, Deceased, 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. DISCOUNT TIRE CO.'S MOTIONS IN LIMINE Defendant Discount Tire Co. ("Discount Tire"), by and through counsel of record, submits the following Motions in Limine. Discount Tire requests this Court to issue an order excluding the evidence and any related testimony as enumerated in this motion. Discount Tire requests that this evidence be excluded in limine, before the voir dire examination of the jury panel has begun, before opening statements by counsel, and before the introduction of any evidence. Discount Tire further request that Plaintiff, her counsel and witnesses (collectively "Plaintiff') and all other witnesses in this case be instructed to refrain from making any mention of the matters contained in this Motion without first approaching the bench and obtaining an appropriate ruling from the Court out of the hearing of the jury. For each item below, Discount Tire further notes whether a separate, dedicated supporting brief has been filed. TABLE OF CONTENTS 1. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT DAVID SOUTHWELL THAT ARE OUTSIDE OF HIS TIRE FAILURE ANALYSIS OPINIONS 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 3. ANY REFERENCE TO THE REAR TIRES AND REAR RIMS BEING IMPROPERLY SIZED 4. ANY REFERENCE TO TAMMY BRADFORD, DECENDENT MICHAEL BRADFORD OR DECEDENT WARREN BRADFORD BEING "REGULAR" CUSTOMERS OF DISCOUNT TIRE 5. UNSUPPORTED TESTIMONY AND OPINIONS PROFFERED BY PLAINTIFF'S DESIGNATED TIRE FAILURE ANALYSIS EXPERT, DAVID SOUTHWELL, PURPORTEDLY BASED ON UNDISCLOSED "EXPERIENCE" 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 7 UNDISCLOSED OR UNPRODUCED TESTING, DATA, OR SUPPORTING MATERIALS 8. ANY REFERENCES BY PLAINTIFF'S EXPERTS OR WITNESSES TO DOCUMENTS OR RECORDS THEY ALLEGEDLY HAVE SEEN IN OTHER CASES INVOLVING DISCOUNT TIRE 9. EXPERT OPINIONS NOT DISCLOSED DURING DISCOVERY 10. IMPROPER LAY OPINION REGARDING CAUSE OF THE TIRE FAILURE OR THE DECEDENTS' INJURIES OR DEATHS 11. REFERENCES TO PORTIONS OF THE ACCIDENT REPORT 12. TESTIMONY BY DISCOUNT TIRE EMPLOYEES IN OTHER LAWSUITS AND EVIDENCE FROM UNDISCLOSED DISCOUNT TIRE EMPLOYEES 13. EVIDENCE AND TESTIMONY REGARDING DISCOUNT TIRE' S SERVICE PRACTICES AND PROCEDURES NOT RELATED TO OPINIONS RELATING TO THE SUBJECT TIRE'S FAILURE 14. CHARACTERIZATION OF PLAINTIFF OR THE DECEDENTS AS "VICTIMS" 2 15. HEARSAY TESTIMONY REGARDING PLAINTIFF' S OR DECENDENTS' INJURIES, CONDITION OR PROGNOSIS 16. REFERENCES TO UNDISCLOSED MEDICAL EVIDENCE 17. PLAINTIFF'S INTENDED USE OF JUDGEMENT PROCEEDS 18. FAMILY PHOTOS AND VIDEOS 19. EXCLUDE ALL WITNESSES AND EXPERTS FROM THE COURTROOM UNLESS TESTIFYING 20. ANY QUESTIONING IN VOIR DIRE REGARDING THE ABILITY TO AWARD A SPECIFIC AMOUNT OF DAMAGES 21. COURT RULINGS ON MATTERS OUTSIDE JURY'S PRESENCE 22. STATEMENTS REGARDING PLAINTIFF AND DISCOUNT TIRE'S ATTORNEYS 23. DISCOUNT TIRE'S DISCOVERY PRACTICES 24. TESTIMONY OF WITNESSES NOT PREVIOUSLY DISCLOSED OR PROPERLY DISCLOSED 25. WHETHER A WITNESS WAS CALLED 26. REFERENCE TO NUMBER OF WITNESSES OR EXHIBITS 27. DEMANDS IN FRONT OF THE JURY THAT DISCOUNT TIRE PRODUCE ANY DOCUMENT, STIPULATE TO ANY FACT, OR MAKE ANY AGREEMENT 28. REFERENCE TO GOLDEN RULE 29. REFERENCES TO CONFIDENTIAL NATURE OF MATERIALS 30. REFERENCES TO INJURIES/DAMAGES AND LITIGATION INVOLVING NON- PARTIES 31. REFERENCES TO LARGE VERDICTS 32. REFERENCES TO DISCOUNT TIRE'S WEALTH, NET WORTH, OR ABILITY TO PAY OR THE COMPARATIVE WEALTH OF THE PARTIES 33. REFERENCES TO PERSONAL WEALTH OF EXPERT WITNESSES 34. LIABILITY INSURANCE COVERAGE/INDEMNITY COVERAGE 35. DISCOUNT TIRE'S ALLEGED MORAL OR ETHICAL OBLIGATIONS 3 36. APPEALS TO JUROR SELF-INTEREST AND FOR THE COMMUNITY INTEREST ARGUMENTS 37. THAT PLAINTIFF BROUGHT SUIT TO ENHANCE CONSUMER SAFETY 38. RELIGIOUS ACTS/REFERENCES 39. `IN DEATH' PHOTOGRAPHS OF THE DECEDENTS 4 MOTIONS IN LIMINE 1. TESTIMONY AND OPINIONS BY PLAINTIFF'S DESIGNATED EXPERT DAVID SOUTHWELL THAT ARE OUTSIDE OF HIS TIRE FAILURE ANALYSIS OPINIONS (Separate Brief Filed) Discount Tire requests that the Court exclude testimony and opinions proffered by David Southwell that are outside of his tire failure analysis opinion offered in deposition, including but not limited to any opinions regarding warnings that allegedly should have been given relating to the subject tire's age and/or the purported standard of care that should be applied to Discount Tire for purposes of Plaintiff's claims in this matter. As set forth more fully in the separate brief, David Southwell is not qualified to offer expert opinions regarding warnings issues and, even if her was, he unambiguously stated during his deposition that he was not offering any opinions regarding warnings in this lawsuit. Further, Mr. Southwell was not designated to offer opinions regarding the standard of care relative to Discount Tire and Plaintiff's counsel represented such on the record during his Mr. Southwell's deposition that he was not designated as an expert on tire service issues. Plaintiff should not be allowed to offer any purported expert opinions through or any testimony of David Southwell on any subjects for which he has not been designated as an expert witness and for which his opinions have not been disclosed. Allowing Plaintiff to do so would be improper, prejudicial and unfair and would amount to trial by ambush. Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, (FLA 3rd DCA 2005); Doctors Company v. Plummer, 210 So. 3d 711 (Fla. 5th DCA 2017) (citing to Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1980)). See generally Brief in Support of Discount Tire Co.'s Motions in Limine Nos. 1-3 to Exclude Certain Testimony and Opinions by Plaintiff's Designated Expert David Southwell. GRANTED: DENIED: 5 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 (Separate Brief Filed) Discount Tire requests that the Court exclude testimony and opinions proffered by David Southwell or any other witnesses that are critical of the tire air pressure allegedly placed in the tires by Discount Tire because Mr. Southwell opined that the subject tire's air pressure played no causal role in the tire's failure. There is no link or nexus between such information and Mr. Southwell's opinions as to cause of the subject tire's failure and any such testimony would be irrelevant and immaterial to the issues before the Court. Such testimony is also unfairly prejudicial to Discount Tire, would likely confuse the issues and mislead the jury, and will waste the Court's time and resources. Florida Evidence Code §§90.401, 90.403 and 90.702. See generally Brief in Support of Discount Tire Co.'s Motions in Limine Nos. 1-3 to Exclude Certain Testimony and Opinions by Plaintiff's Designated Expert David Southwell. GRANTED: DENIED: 3. ANY REFERENCE TO THE REAR TIRES AND REAR RIMS BEING IMPROPERLY SIZED (Separate Brief Filed) It is anticipated that Plaintiffs will attempt to proffer testimony alleging that the rear tires were placed on rims that were too narrow. It is undisputed that neither of those tires failed or played any role in the subject incident. If such testimony is allowed, it would require the introduction of unnecessary evidence to determine whether the installation of the rear tires on the rims caused any issues with such tires and whether such issues had any causal effect of the subject incident. Plaintiff's designated tire failure analysis expert, David Southwell, has testified that the mounting of the non-subject tires on their respective wheels did not contribute to cause the accident in question. Therefore, such testimony would be irrelevant and immaterial to the 6 issues before the Court, is unfairly prejudicial to Discount Tire, would likely confuse the issues and mislead the jury, and will waste the Court's time and resources. Florida Evidence Code §§ See generally Brief in Support of Discount Tire Co.'s Motions in Limine Nos. 1-3 to Exclude Certain Testimony and Opinions by Plaintiff's Designated Expert David Southwell. GRANTED: DENIED: 4. ANY REFERENCE TO TAMMY BRADFORD, DECEDENT MICHAEL BRADFORD OR DECEDENT WARREN BRADFORD BEING "REGULAR" CUSTOMERS OF DISCOUNT TIRE (Separate Brief Filed) Discount Tire seeks to exclude any and all comments, inferences, evidence, testimony, visual aids, demonstrative evidence, or questions eliciting testimony that infers any of the Bradford family were "regular" customers of Discount Tire, Discount Tire was their usual place to purchase tires, or similar inference that they normally purchased all of their tires from Discount Tire. Discount Tire is raising this issue because David Southwell made that reference and inference during his deposition and it is factually inaccurate. Further, any such proffered testimony or purported evidence would be inadmissible hearsay designed to confuse and mislead the jury into believing that the Bradfords' always purchased tires from Discount Tire leading up to the incident. Florida Evidence Code §§90.801, et seq. See New York Life Ins. Co. v. Childs, 252 So.2d 288, 290 (Fla. 3d DCA 1971) (finding no error in trial court's exclusion of testimony when the proffer demonstrated that the testimony was neither relevant nor material to the issues involved); see also Maklakiewicz v. Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA 1995); cf. Linn v. Fossum, 894 So.2d 974, 979 (Fla. 1st DCA 2004) (explaining that a medical doctor's opinion testimony was admissible when it was based partly on inadmissible hearsay and partly on admissible evidence because a medical doctor would normally rely, in part, on 7 conversations with others in forming an opinion); All Am. Pool Surface, Inc. v. Jordan, 870 So.2d 885, 886 (Fla. 3d DCA 2004). Further, the records speak for themselves regarding Michael Bradford's actions during his visits to Discount Tire. See generally Discount Tire's Brief in Support Motion in Limine No. 4 to Exclude Any Reference to Michael Bradford's Tire Purchasing Habits. GRANTED: DENIED: 5. UNSUPPORTED TESTIMONY AND OPINIONS PROFFERED BY PLAINTIFF'S DESIGNATED TIRE FAILURE ANALYSIS EXPERT DAVID SOUTHWELL, PURPORTEDLY BASED ON UNDISCLOSED "EXPERIENCE" (Separate Brief Filed) It is anticipated that Plaintiff may try to offer opinions and testimony by Mr. Southwell which purportedly are based on his prior experience in the tire industry while employed by Bridgestone Australia, but which he refuses to disclose or discuss due to alleged confidentiality concerns. Therefore, such opinions are not supported by any information and/or materials that have been produced to Discount Tire. Consequently, any such unsupported proffered opinions or testimony by David Southwell should not be allowed because it deprives Discount Tire of its right to cross-examination. This results in a fundamentally unfair proposition for Discount Tire, who is entitled to fully explore the basis on which Mr. Southwell bases his opinions. Therefore, Mr. Southwell should be precluded from testifying as to any opinions based in whole or in part on undisclosed facts relating to his alleged "experience" at Bridgestone Australia. He cannot simply state his opinions are based on his alleged "experience" or on documents, research, and testing he has seen, but then when challenged on cross examination refuse to discuss that experience. Florida Evidence Code §§90.401, 90.403 and 90.702. 8 See generally Discount Tire's Brief in Support Motion in Limine No. 5 to Exclude Unsupported Testimony and Opinions Proffered by Plaintiff's Designated Tire Failure Analysis Expert David Southwell, Purportedly Based on Undisclosed "Experience". GRANTED: DENIED: 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 (Separate Brief Filed) Plaintiffs designated tire failure analysis expert, David Southwell, has opined that the lack of a nylon overlay (or a nylon cap ply or belt edge cap strips) in the subject tire had no causal relationship to the subject tire's failure or continued use before wear out. Therefore, any testimony proffered by Plaintiff or her witnesses regarding nylon overlays and/or the absence of a nylon overlay in the subject tire is not relevant to the probative issues in this matter. Florida Evidence Code §§ Similarly, any testimony regarding whether Discount Tire should have recommended removal of the subject tire because of the lack of a nylon cap ply or belt edge cap strips is irrelevant. Id. Plaintiff should not be allowed to introduce any testimony, including but not limited to any testimony from Mr. Southwell's deposition, regarding issues about nylon. See generally (1) Discount Tire's Brief in Support Motion in Limine No. 6 to Exclude Testimony by Plaintiffs Designated Expert David Southwell Regarding Discount Tire's Obligation to Address Whether the Subject Tire was Designed with a Nylon Cap Ply or Belt Edge Cap Strips and (2) Discount Tire's Motion to Exclude the Testimony of Plaintiffs Designated Expert, David Southwell, or in the Alternative, to Limit his Testimony. GRANTED: DENIED: 9 7. UNDISCLOSED OR UNPRODUCED TESTING, DATA, OR SUPPORTING MATERIALS Any mention of preliminary, interim, or past results of studies or testing that have not been published, or for which Plaintiff has not timely provided all supporting data, should be precluded. It would be prejudicial and improper to allow witnesses to offer opinions, lay or expert, that are purportedly based on undisclosed tests, data, or other undisclosed supporting material. Allowing any expert testimony during Plaintiff's case in chief concerning previously undisclosed literature, studies, or testing would be prejudicial because (a) it was not disclosed to defendant as required by Florida law and (b) Discount Tire and its expert witnesses did not have the opportunity to review such information prior to trial. Therefore, it would be prejudicial and improper to allow witnesses to offer opinions, lay or expert, which are purportedly based on undisclosed literature, studies, tests, data, or other supporting material. Florida Evidence Code §§ Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, (FLA 3rd DCA 2005); Dirling v. Sarasota County Government, 871 So.2d 303, (Fla. 1st DCA 2004); see Fla. Stat. 90.702. GRANTED: DENIED: 8. ANY REFERENCES BY PLAINTIFFS' EXPERTS OR WITNESSES TO DOCUMENTS OR RECORDS THEY ALLEGEDLY HAVE SEEN IN OTHER CASES INVOLVING DISCOUNT TIRE Any mention of any documents purportedly seen by Plaintiffs experts in other cases involving Discount Tire, but not produced in this case, should be precluded. Such references are inadmissible hearsay and are only designed to confuse and mislead the jury into believing that Discount Tire is hiding information or not properly responding to discovery. Florida Evidence Code §§90.801, et seq. Zabner v. Howard Johnson's Inc. of Fla., 227 So. 2d 543, 546 (Fla. Dist. Ct. App. 1969)("Introduction of the element of fifteen other lawsuits could have had no effect 10 other than to try to prejudice the jury against the plaintiff."). Such issues are not for presentation to the jury and documents from other cases that have not been requested in this matter are irrelevant. Moreover, it would be prejudicial for witnesses to offer testimony about the purported contents of documents that are not part of this matter and are not available for cross examination. Florida Evidence Code §§ GRANTED: DENIED: 9. EXPERT OPINIONS NOT DISCLOSED DURING DISCOVERY Florida law requires the parties to provide the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them. See Tetrault v. Fairchild, 799 So.2d 226 (Fla. 5th DCA 2001)(holding that it was reversible error to allow a radiologist to testify based on MRI images as to causation, when the radiologist was identified as nothing more than a post accident emergency room radiologist); Doctors Co. v. State Department of Insurance, 940 So.2d 466 (Fla. 1st DCA 2006).(finding that the trial court properly sustained objections to previously undisclosed opinion testimony); Galvez v. Merelo, 849 So.2d 1158 (Fla. 1st DCA 2003) (holding that the trial court abused its discretion by permitting expert testimony which was previously undisclosed). Accordingly, Discount Tire respectfully requests an in limine order limiting Plaintiff's experts to direct examination testimony only on issues which were disclosed in their deposition testimony and, in particular, limiting the experts only to opinions and to the bases and reasons for those opinions that were fully disclosed in their depositions. GRANTED: DENIED: 10. IMPROPER LAY OPINION REGARDING CAUSE OF THE TIRE FAILURE OR THE DECEDENTS' INJURIES OR DEATHS Offering any evidence of, or referring to, or soliciting the opinion of any lay person regarding Discount Tire's conduct, the standard of care, the cause of the tire failure or the death 11 of the decedents. A lay witness is unqualified and does not have the expertise that would allow him or her to determine those matters. Christian v. State, 693 So. 2d 990, 993 (Fla. 1st DCA 1996); Town of Palm Beach v. Palm Beach County, 460 So. 2d 879, 882 (Fla. 1985); See The Florida Bar v. Clement, 662 So. 2d 690 (Fla. 1995). GRANTED: DENIED: 11. REFERENCES TO PORTIONS OF THE ACCIDENT REPORT Any evidence from, reference to, or mention of any portion of an accident report that constitutes inadmissible hearsay for which no valid hearsay exception exists. Florida Evidence Code §§90.801, et seq. See McTevia v. Schrag, 446 So. 2d 1183, 1184 (Fla. 4th DCA 1984). Even if an accident report itself may qualify under the public records exception, portions of the accident report may be inadmissible because it is untrustworthy for other reasons, including that it may constitute a speculative statement that is not based on the requisite knowledge, training and experience for an experts' opinion and/or may contain a reporting officer's opinions and conclusions that the officer is not qualified to address. Florida Evidence Code §§ Fla. Stat. 316.066 90.702. Durse v. Henn, 68 So. 3d 271, 275 (Fla. 4th DCA 2011). GRANTED: DENIED: 12. TESTIMONY BY DISCOUNT TIRE EMPLOYEES IN OTHER LAWSUITS AND EVIDENCE FROM UNDISCLOSED DISCOUNT TIRE EMPLOYEES Any evidence or documents regarding any testimony by Discount Tire employees in other lawsuits should be excluded. Testimony in other lawsuits is irrelevant to the claims at issue in this case because such testimony pertains to other matters that are not shown to be substantially similar under Florida law, and are thus inadmissible. See Zabner v. Howard Johnson's Inc. of Fla., 227 So. 2d 543, 546 (Fla. Dist. Ct. App. 1969)( "Introduction of the element of fifteen other lawsuits could have had no effect other than to try to prejudice the jury 12 against the plaintiff."). Any evidence, either testimonial or documentary, of any other lawsuit, incident, or claim involving any tire sold or serviced by Discount Tire should be precluded unless and until Plaintiff first shows by competent evidence the substantial similarity between the other matter and the accident that is the subject of this lawsuit. Id; See Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590, 592 (Fla.1974). This showing is necessary to establish that the probative value of the evidence of the other incident(s) is not substantially outweighed by the prejudicial effect of that evidence and does not merely constitute inadmissible character evidence. Id. Florida Evidence Code §§ GRANTED: DENIED: 13. EVIDENCE AND TESTIMONY REGARDING DISCOUNT TIRE'S SERVICE PRACTICES AND PROCEDURES NOT RELATED TO OPINIONS RELATING TO THE SUBJECT TIRE'S FAILURE Any evidence concerning alleged tire service practices and procedures by Discount Tire that are not related to the opinions of Plaintiff's experts' relating to the subject tire's failure should be excluded. See New York Life Ins. Co. v. Childs, 252 So.2d 288, 290 (Fla. 3d DCA 1971) (finding no error in trial court's exclusion of testimony when the proffer demonstrated that the testimony was neither relevant nor material to the issues involved); see also Maklakiewicz v. Berton, 652 So.2d 1208, 1209 (Fla. 3d DCA 1995); cf. Linn v. Fossum, 894 So.2d 974, 979 (Fla. 1st DCA 2004) (explaining that a medical doctor's opinion testimony was admissible when it was based partly on inadmissible hearsay and partly on admissible evidence because a medical doctor would normally rely, in part, on conversations with others in forming an opinion); All Am. Pool Surface, Inc. v. Jordan, 870 So.2d 885, 886 (Fla. 3d DCA 2004). For example, Plaintiff may attempt to elicit testimony that the rear tires were mounted on rims that were too narrow, or the air pressure placed in the tires did not match the vehicle placard, or the front tires and rear 13 tires did not match in size, but none of those issues played a role in the failure of the front left tire or caused the crash. Such testimony would only be proffered as improper character evidence intended to confuse and mislead the jury into believing Discount Tire must have been negligent in the other service issues for which they complain. See John Mayo v. Publix Supermarkets, Inc., 686 So. 2d 801 (Fla. 4th DCA 1997), Wal-Mart Stores, Inc., v. Wittke, 202 So.3d 929 (Fla. 2nd DCA 2016); Dominguez v. Publix Super Mkts., Inc., 187 So.3d 892 (Fla. 3d DCA 2016); Cave v. Wal-Mart Stores East LP., 2017 WL 10276020, (M.D. Florida 2017); Pollock v. Florida Dept. of Highway Patrol, 882 So.2d 928 (Fla. 2004). Florida Evidence Code §90.403. GRANTED: DENIED: 14. CHARACTERIZATION OF PLAINTIFF OR THE DECEDENTS AS "VICTIMS" Plaintiff, her counsel, witnesses and experts should be precluded from characterizing Plaintiff or the Decedents as "victims" in front of the jury. Such characterization of Plaintiff and Decedents is calculated to arouse the sympathy, prejudice or passion of the jury and should not be allowed. Florida Evidence Code §90.403. GRANTED: DENIED: 15. HEARSAY TESTIMONY REGARDING PLAINTIFF'S OR DECEDENTS' INJURIES, CONDITION OR PROGNOSIS Discount Tire moves this Court for its order in limine prohibiting Plaintiff's counsel from asking any questions, eliciting any testimony from any witness or making any reference to hearsay testimony regarding what any person, first responder or doctor told any person about the injuries, condition, prognosis, or anything else regarding Plaintiff or the Decedents. Florida Evidence Code §§90.801, 90.804(2)(b)et seq. GRANTED: DENIED: 14 16. REFERENCES TO UNDISCLOSED MEDICAL EVIDENCE All parties, their attorneys and all witnesses should be prohibited from referring to, commenting upon, or otherwise attempting to introduce at trial any medical evidence that was not disclosed properly during discovery in response to requests, including any evidence relating to Plaintiff's and/or the Decedents' injuries, medical condition, and/or medical bills not produced in this case, and testimony or materials from any physician or other medical professional or facility not previously disclosed. In addition, any "expert" evidence, including testimony attempting to ascribe a dollar value to intangible elements of recovery, such as mental anguish, physical impairment, or loss of the value or enjoyment of life should also be excluded. Such testimony would not assist the jury but would rather invade the province of the jury, and it would be irrelevant, unreliable, and inadmissible. Florida Evidence Code §§ See Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). GRANTED: DENIED: 17. PLAINTIFF'S INTENDED USE OF JUDGMENT PROCEEDS Any evidence or documents regarding, the questioning of any witness, or otherwise mentioning in the presence of the jury, what Plaintiff intends to do with the proceeds of any award she might receive in this litigation. Regardless of any purported altruistic purpose Plaintiff may or may not have, such purpose is neither relevant to, nor probative of, any facts or issues in this case. Rather, it is highly prejudicial and is an improper attempt to garner the sympathy of the jury. Florida Evidence Code §§ GRANTED: DENIED: 18. FAMILY PHOTOS AND VIDEOS Plaintiff should be precluded from seeking to introduce into evidence, exhibiting to the 15 jury or jury panel, and/or showing to the jury or jury panel, in any manner, photographs, photo albums, scrapbooks, or memorial videos because they could contain inadmissible hearsay. Florida Evidence Code §§90.801, et seq. The only purpose of exhibiting photographs, scrapbooks, videos, and so forth would be to arouse the sympathy of the jury, and would not aid the jury in determining the issues in this case. Florida Evidence Code §§ GRANTED: DENIED: 19. EXCLUDE ALL WITNESSES AND EXPERTS FROM THE COURTROOM UNLESS TESTIFYING The Court should exercise its discretion pursuant to Florida Evidence Code §90.616 and exclude all witnesses so that they cannot hear the testimony of other witnesses, except the parties or a designated officer or employee of each party, not a natural person. GRANTED: DENIED: 20. ANY QUESTIONING IN VOIR DIRE REGARDING THE ABILITY TO AWARD A SPECIFIC AMOUNT OF DAMAGES Any questioning of potential jurors during voir dire on their ability to award a specific amount of damages should be precluded. Such questioning is argumentative and improper. Plaintiff's counsel should not be allowed to ask specific questions that are necessarily related to the facts of the case that will not be before the prospective jurors at that time. Such questioning would improperly require the prospective jurors to arrive at opinions or conclusions without first hearing the evidence. Florida Evidence Code §§ (Sisto v. Aetna Cas. & Surety Co., 689 So. 2d 438, (Fla. 4th DCA 1997)(permitting inquiry into ones feeling of non-economic damages, but not committing to damages). GRANTED: DENIED: 21. COURT RULINGS ON MATTERS OUTSIDE JURY'S PRESENCE 16 Any mention of any action of the Court in ruling upon any matter, including these Motions in Limine, prior to the trial of this case or during the trial of this case where the ruling is made outside of the presence of the jury. Further, Discount Tire requests an instruction that no mention or reference be made about the pleadings, motions (including these Motions in Limine), or other requests filed by Discount Tire, or that such requests filed by Discount Tire were of a particular nature. Florida Evidence Code §§ GRANTED: DENIED: 22. STATEMENTS REGARDING PLAINTIFFS AND DISCOUNT TIRE'S ATTORNEYS Any reference by the parties regarding the following topics: (1) that the attorneys for Discount Tire in this lawsuit regularly represent Discount Tire, other defendants, large corporations, manufacturers, insurance companies, or the like; (2) that the attorneys for Discount Tire in this lawsuit specialize in cases involving tire failures or vehicle accidents; and (3) that the attorneys for Discount Tire in this lawsuit represent Discount Tire across the county in lawsuits "just like this one," or the like. Such references are merely calculated to arouse the sympathy, prejudice or passion of the jury. Florida Evidence Code §§ Discount Tire further requests the Court to prohibit Plaintiff s counsel, Plaintiff, and her witnesses from referring to or mentioning the number of attorneys representing or appearing on behalf of Discount Tire in this matter, and/or that some of Discount Tire's attorneys are not local practitioners. Id. In addition, any reference to Plaintiff or her attorneys as "locals" should be precluded. The residency of Plaintiff and her counsel is not an issue before the Court. The only purpose of such a reference would be to unfairly prejudice Discount Tire and generate further sympathy on Plaintiffs behalf. Accordingly, any such reference is inadmissible and must be excluded. Florida Evidence Code §§ 17 GRANTED: DENIED: 23. DISCOUNT TIRE'S DISCOVERY PRACTICES Any reference to discovery issues (i.e., that Discount Tire misused discovery practices or attempted to "hide" documents from the Plaintiff) should be precluded. The Court should also preclude Plaintiff, her attorneys, and her witnesses from stating or suggesting that documents or information were requested by Plaintiff and not provided by Discount Tire, including, but not limited to, any assertions made in front of the jury that Discount Tire has failed to produce any document in this case that it has allegedly produced in another case. It is axiomatic that any issues Plaintiff may have had with Discount Tire's discovery practices should have been addressed through discovery motions before trial. Any criticisms of Discount Tire's discovery practices at trial would be irrelevant, highly prejudicial, confusing to the jury, and have no probative value. Florida Evidence Code §§ GRANTED: DENIED: 24. TESTIMONY OF WITNESSES NOT PREVIOUSLY DISCLOSED OR PROPERLY DISCLOSED Any mention of, reference to or attempt to introduce the testimony of any witnesses, whether fact or expert, who have not been timely and properly revealed by Plaintiff in her pretrial disclosures and discovery responses propounded pursuant to the Florida Rules of Civil Procedure. Allowing Plaintiff to introduce testimony from undisclosed witnesses would operate as an unfair surprise to Discount Tire and would permit an abuse of the discovery process, prohibiting Discount Tire from a fair and adequate opportunity to meet and rebut the issues raised by Plaintiff's purported evidence. Florida Evidence Code §§ Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1980)). Fla. R. Civ. Pro. 1.280. GRANTED: DENIED: 18 25. WHETHER A WITNESS WAS CALLED Plaintiff should not make any inquiry into or mention that Discount Tire designated, refused to designate, or has not called any particular witness that would be equally available to all parties through the subpoena process. Terry v. State, 668 So.2d 954, 963 (Fla.1996). GRANTED: DENIED: 26. REFERENCE TO NUMBER OF WITNESSES OR EXHIBITS Any reference to, or mention of, the number of witnesses, including expert witnesses, testifying on behalf of Discount Tire, or any suggestion that it is somehow unfair that Discount Tire has or will call a greater number of witnesses or experts to testify, or present a great number of exhibits. Florida Evidence Code §§ GRANTED: DENIED: 27. DEMANDS IN FRONT OF THE JURY THAT DISCOUNT TIRE PRODUCE ANY DOCUMENT, STIPULATE TO ANY FACT, OR MAKE ANY AGREEMENT Any demand or request, in the presence of the jury, that Discount Tire or its attorneys: (1) produce documents or instruments; (2) stipulate to any fact; or (3) make any sort of agreement should be precluded. It is axiomatic that any issues Plaintiff had with Discount Tire's actions in this regard should have been addressed through discovery motions before trial. Such demands or requests at trial would be irrelevant, highly prejudicial, confusing to the jury, and have no probative value. Florida Evidence Code §§ GRANTED: DENIED: 28. REFERENCE TO GOLDEN RULE Any reference or argument to the jury seeking to apply the "Golden Rule" by asking the jury to put themselves in the shoes of Plaintiff or any similar argument. Such arguments or 19 references: 1) are irrelevant to the resolution of any question of material fact; 2) serve to improperly inflame the jury; and 3) have a tendency to confuse and mislead the jury. Florida Evidence Code §§ In addition, such arguments ask the jury to consider the case from an improper viewpoint. See Philip Morris USA, Inc. v. Ledoux, 230 So. 3d 530 (Fla. 3d DCA 2017); See National Car Rental Systems v. Bostic, 423 So. 2d 915 (Fla. 3d DCA 1982); SDG Dadeland Assoc., Inc. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008). GRANTED: DENIED: 29. REFERENCES TO CONFIDENTIAL NATURE OF MATERIALS Any mention or reference, made in any manner, regarding the classification of any document, report, statement or other material, information or tangible item as "Confidential" under the Protective Order, or any suggestion of impropriety as to information that has been redacted or partially redacted under the terms of the Protective Order entered by the Court in this matter should be precluded. The Protective Order agreed to by the Court in this matter provides for such a designation, and the method of challenging the designation. Any comments about "confidentiality" or insinuations of impropriety as to redacted information are not relevant to any issue in this case, and would be highly prejudicial to Discount Tire. Florida Evidence Code §§ GRANTED: DENIED: 30. REFERENCES TO INJURIES/DAMAGES AND LITIGATION INVOLVING NON-PARTIE S Any reference to injuries sustained by, or litigation and settlements involving, those persons who are not parties to this case. Any such evidence would be completely irrelevant. Florida Evidence Code §§ Only the claims of the named Plaintiff are at issue, and the specific injuries/damages and settlements involving other litigants in other cases have no 20 bearing on this case. The only purpose of reference to such issues would be to unfairly prejudice Discount Tire, to generate sympathy on Plaintiff's behalf, and to try to inflame the jury and evoke an emotional response. Accordingly any such evidence or argument is inadmissible and must be excluded. Florida Evidence Code §90.403. GRANTED: DENIED: 31. REFERENCES TO LARGE VERDICTS Any reference to large verdicts in other lawsuits should be precluded. Florida Evidence Code §§ . GRANTED: DENIED: 32. REFERENCES TO DISCOUNT TIRE'S WEALTH, NET WORTH, OR ABILITY TO PAY OR THE COMPARATIVE WEALTH OF THE PARTIES Discount Tire requests the Court to preclude Plaintiff, including her attorneys and witnesses, from making any reference to Discount Tire's wealth, net worth, or ability to pay. Whether or not Discount Tire has any purported wealth, profits, earnings, revenue, annual sales, net worth, or ability to pay is not relevant to the facts in this case or to the applicable law, as it will not make the existence of any fact that is of consequence, i.e., whether the subject tire was allegedly defective, more or less probable than it would be without the evidence. Such references will serve only to mislead or confuse the jury and are highly prejudicial to Discount Tire. Florida Evidence Code §§ Similarly, any references or statements comparing the relative wealth of the parties, including such comments as "poor plaintiff' or to the fact that Discount Tire is a large corporation and as such is "wealthy" or has substantial financial resources should be precluded. Any such comments would be irrelevant, unduly prejudicial, and cause confusion of the issues before the jury. Florida Evidence Code §§ 21 GRANTED: DENIED: 33. REFERENCES TO PERSONALWEALTH OF EXPERT WITNESSES Any mention or reference regarding the personal finances or personal wealth of Discount Tire's expert witnesses should be precluded. Any evidence of this nature is not relevant to any issue in this case. Furthermore, such references only seek to inflame the jury and are highly prejudicial. Because such matters are neither relevant nor admissible in this case, they should be excluded. Florida Evidence Code §§ GRANTED: DENIED: 34. LIABILITY INSURANCE COVERAGE/INDEMNITY COVERAGE Any mention or references by any party, either directly or indirectly, that Discount Tire is or may be covered by some form of liability insurance and/or indemnity agreements covering in whole or in part the damages Plaintiff alleges. This includes, but is not limited to, the use of the words from which a jury might infer the existence of possible insurance such as "insurance agent," "claim," "coverage," "premiums," "carrier," "adjuster," or other such words, in any form. Florida law states that evidence of insurance coverage is inadmissible upon the issue of whether a party acted negligently or wrongfully. See Levin v. Hankls, 356 So. 2d 21 (Fla. 4th DCA 1978). Such evidence is not relevant to the defect or negligence allegations made by Plaintiffs in this case and would only serve to potentially inflame the jury against Discount Tire. Florida Evidence Code §§ GRANTED: DENIED: 35. DISCOUNT TIRE'S ALLEGED MORAL OR ETHICAL OBLIGATIONS Any reference to any purported ethical or moral obligations on the part of Discount Tire, or its employees, is inadmissible. Discount Tire requests the Court preclude Plaintiff, including 22 her attorneys and witnesses, from making any such references. Whether or not Discount Tire and its employees have any purported ethical or moral obligation to do anything is not relevant to the facts in this case or to the applicable law. Such references only seek to inflame the jury and are highly prejudicial. Because such matters are neither relevant nor admissible in this case, they should be excluded. Florida Evidence Code §§ GRANTED: DENIED: 36. APPEALS TO JUROR SELF-INTEREST AND FOR THE COMMUNITY INTEREST ARGUMENTS Discount Tire moves this Court for an order in limine prohibiting Plaintiff's counsel from asking any questions or eliciting any testimony from witnesses, and from making any statement or argument encouraging the jury to decide this case based on a juror's self-interest or for the community's interest through golden rule arguments or similar arguments. A golden rule argument is the suggestion by counsel that jurors should place themselves in the position of a party, a victim, or the victim's family members. Such arguments or references: (1) are irrelevant to the resolution of any question of material fact; (2) would serve to improperly inflame the jury; and (3) would confuse the jury on the issues. Florida Evidence Code §§ The trial court instructs the jury and provides a verdict form specifically for the purpose of keeping the jury on task in terms of deciding the case based on the law and the facts. Such arguments ask the jury to consider the case from an improper viewpoint which is improper. See National Car Rental Systems v. Bostic, 423 So. 2d 915 (Fla. 3d DCA 1982); SDG Dadeland Assoc., Inc. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008). Further, Plaintiff should also be precluded from arguing that the jury or the jury panel should attempt to make a defendant "know what the price of justice is in our community" or should "send the defendants' management a message" or any such inflammatory and prejudicial language which is calculated to have the jury assess 23 damages on some basis other than proper compensation as provided by the Court's charge to the jury. Additionally, no statements or appeal should be made that include: (1) invoking the jury to be the "conscience of the community" in this case with respect to this verdict, or (2) encouraging the jury to do something by its verdict to make the community proud. Any such statement or appeal improperly suggests to the jury that it should rule on matters not relevant to the case at bar and that some award of damages is expected. See National Car Rental Systems v. Bostic, 423 So. 2d 915 (Fla. 3d DCA 1982); SDG Dadeland Assoc., Inc. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008). GRANTED: DENIED: 37. THAT PLAINTIFF BROUGHT SUIT TO ENHANCE CONSUMER SAFETY Any mention or reference, either directly or indirectly, that this lawsuit is brought for the purposes of establishing consumer safety standards, to enforce consumer safety principles, or due to a desire to enhance consumer safety should be precluded. Regardless of any purported altruistic purpose Plaintiff may or may not have had in filing this lawsuit, such purpose is neither relevant to, nor probative of, any facts or issues in this case. Florida Evidence Code §§ In addition, such an argument or statement is misleading in that Plaintiff seeks monetary, not injunctive, relief in this suit. Moreover, such references would serve only to inflame and prejudice the jury, or create unfair bias and sympathy for Plaintiff, and should therefore be precluded. Florida Evidence Code §90.403. GRANTED: DENIED: 38. RELIGIOUS ACTS/REFERENCES Any improper and irrelevant Biblical or religious references or acts by any party, counsel, or witness. One's religious beliefs are not material to the issue of credibility as a witness. 24 Florida Evidence Code §90.611. A witness's religious beliefs do not have any probative value as to his or her truthfulness. Additionally, use of such evidence is likely to have a prejudicial effect on the jury. Florida Evidence Code §90.403. GRANTED: DENIED: 39. `IN DEATH' PHOTOGRAPHS OF THE DECEDENTS Any and all photographs or dramatizations, exposing sounds, photographs of the Decedents, or any "gory" death photographs at the accident scene, hospital, autopsy, grave site memorial, or otherwise, as such photographs are offered only to inflame the minds of the jury. Florida Evidence Code §§ See Conner v. State, 987 So. 2d 130, 133 (Fla. 2d DCA 2008);.Swan v. State, 322 So. 2d 485 (Fla. 1975); State v. McClain, 525 So. 2d 420, 422 (Fla. 1988)(emphasis added)(quoting Charles W. Ehrhardt, Florida Evidence, § 403.1 at 100- 03 (3d ed.1984)). Photographic evidence is inadmissible if it is calculated to arouse the sympathy, prejudice, or passion of the jury where the photographs do not serve to illustrate disputed issues or aid the jury in understanding the case.). Such evidence is not relevant to any of the questions before the jury, and should be excluded. GRANTED: DENIED: Discount Tire respectfully prays that the above and foregoing Motions in Limine be, in all things, sustained and the Court instruct Plaintiff, counsel for Plaintiff, and all of Plaintiff's experts and witnesses accordingly. Discount Tire further respectfully prays for such other and further relief to which it may show itself to be justly entitled. 25 Respectfully submitted, JOHNSON, TRENT & TAYLOR, L.L.P. By: /s/ T Christopher Trent T. CHRISTOPHER TRENT Admitted Pro Hac Vice Texas Bar No. 20209400 919 Milam, Suite 1500 Houston, Texas 77002 Telephone: (713) 222-2323 Facsimile: (713) 222-2226 Email: ctrent@johnsontrent.com QUINTAIROS, PRIETO, WOOD & BOYER, P.A. DAVID M. TARLOW Florida Bar No. 893684 2400 East Commercial Blvd., Suite 520 Fort Lauderdale, Florida 33308 Telephone: (954) 523-7008 Facsimile: (954) 523-7009 Email: dtarlow@qpwblaw.com ATTORNEYS FOR DEFENDANT DISCOUNT TIRE CO. CERTIFICATE OF SERVICE We certify that a true and correct copy of the foregoing has been served via the Florida E- Filing Portal on this 4th day of March, 2022 to: Skip E. Lynch Via E-Serve and Email Bruce R. Kaster KAS l'ER, LYNCH, FARRAR & BALL, LLP 125 N.E. 1st Avenue, Suite 3 Ocala, Florida 34470 skip@thetirelawyers.com