Preview
Filing # 185237180 E-Filed 11/01/2023 12:46:45 PM
IN THE CIRCUIT COURT OF THE 9TH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2022-CA-00028-ON
LILIANA FANOUS,
Plaintiff,
V.
SPEEDWAY LLC, and
DANAY FELICIANO
Defendants
/
DEFENDANTS’ OMNIBUS MOTIONS IN LIMINE
Defendants, by and through undersigned counsel, move this Court for an Order
prohibiting Plaintiff, Liliana Fanous, from mentioning, referring to, or attempting to
elicit testimony, in opening statements, during the presentation of evidence, or in
closing statements regarding the following issues. This Omnibus Motion is particularly
needed as the Plaintiff is proceeding pro se and may be unaware of the rules of
evidence. While Plaintiff has not yet disclosed, experts, or filed a Witness & Exhibit
List, The Defendant continues to abide by the deadlines provided in the Uniform Trial
Order issued on May 31, 2023 despite the Plaintiff’s failure to comply with the same.
1. Insurance Coverage
No mention shall be made of the existence or non-existence of insurance
coverage in favor of the Defendants relative to any issues in the lawsuit, including
references to Defendants being self-insured. The existence of insurance coverage has
no bearing on the issues of liability and damages and should not be considered.
Allstate Ins. Co. v. Wood, 535 So. 2d 699, 700 (Fla. 1st DCA 1988). Florida has long
recognized the concern that knowledge of a defendant’s insurance coverage may
result in the jury attributing liability where none exists. Thompson v. Florida Drum
Co., 651 So. 2d 180, 182 (Fla. 1st DCA 1995).
2. Exclude Any Evidence and/or References to Parties’ Economic
Standing
In this case the Plaintiff is an individual, while one of the Defendants herein, is
a large multi-state corporate entity. Reference to the wealth or poverty of either
party, or reflection on financial disparity, is clearly an improper argument. Chin v.
Caiaffa, 42 So.3d 300, 308 (Fla. 3d DCA 2010); Carnival Corp. v. Pajares, 972 So.2d
973, 977 (Fla. 3d DCA 2007). In U.S. v. Socony Vacuum Oil Co., 310 U.S. 150 (1940),
the United States Supreme Court held that appeals to class were highly improper and
urged trial courts to be alert to prevent such discourse. “Argument directly
contrasting the poverty of one of the parties with the wealth of the other is especially
apt to prejudice the jury.” Batlemento v. Dove Fountain, Inc., 593 So.2d 234, 241
(Fla. 5th DCA 1991), rev. denied, 601 So.2d 551 (Fla. 1992) (citations omitted).
Therefore, this Court should not permit any reference to the economic standings of
the parties. See Brough v. Imperial Sterling, Ltd., 297 F.3d 1172, 1178 (11th Cir.
2002), citing, Batlemento, 593 So.2d at 241.
3. Failure to Call Witness
No reference shall be made to the failure of a party to call a witness who is
equally available to both sides. Lowder v. Family Health Care Center, 680 So. 2d
1133 (Fla 3d DCA 1996); Riggins v. Mariner Boat Works, 545 So. 2d 430 (Fla. 2d
DCA 1989).
4. Exclude Expert Testimony of Plaintiff’s Treating Physicians
The Defendants anticipate that during trial, expert physicians will be asked to
provide expert witness testimony in the form of answers to hypothetical questions
and opinions as to causation. However, Plaintiff’s treating physicians should be
precluded from providing any unfounded testimony.
The Florida Rules of Civil Procedure sets forth some general requirements
regarding experts. See Fla. R. Civ. P. 1.280. Plaintiff’s treating physicians should
only be permitted to testify as expert witnesses pursuant to Fla. R. Evid. 90.701.
Under Fla. R. Evid. 90.701, the witness’s testimony about what he or she perceived
may be in the form of inference and opinion when: (1) the witness cannot readily,
and with equal accuracy and adequacy, communicate what he or she has perceived
to the trier of fact without testifying in terms of inferences or opinions and the
witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice
of the objecting party; and (2) the opinions and inferences do not require a special
knowledge, skill, experience, or training. A treating doctor does not acquire his expert
knowledge for the purpose of litigation, but rather simply in the course of attempting
to make his patient well. See generally, Marine Exploration Co. v. McCoy, 308 So.2d
43 (Fla. 3d DCA 1975); Marshall v. Papineau, 132 So.2d 786 (Fla. 1st DCA 1961).
“Expert” witnesses whose information was not acquired in preparation for trial,
but rather as an actor or viewer with respect to transactions or occurrences that are
part of the subject matter of the lawsuit, should be treated as an ordinary witness.
Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla. 3d DCA 1981) (finding that any
practitioner who has treated plaintiff is just an “actor” in the case and a “viewer” of
her condition who is to be “treated as an ordinary witness”); Vargas v. Gutierrez, 176
So.3d 315, 325 (Fla. 3d DCA 2015), reh'g denied (Oct. 8, 2015) (“A well-known
parable warns readers to be watchful for wolves in sheep's clothing; trial courts
should likewise be wary of litigants attempting to elicit expert testimony disguised as
fact testimony from a treating physician.”) “A treating physician is not an ‘expert’
witness if he or she testifies about observations based on personal knowledge,
including the treatment of a party.” Cf. Principi v. Survivair, Inc., 231 F.R.D. 685,
692 (M.D. Fla. 2005).
As a fact witness, treating physicians must base their opinions on facts of which
they have personal knowledge. Phillips v. American Honda Motor Co., Inc., 438 F.
Supp. 2d 1328, 1330 (S.D. Ala. 2006). As a result, Plaintiff’s treating physicians
should not be permitted to testify, for example, regarding causation unless the
determination of causation was required for treatment and their opinions are helpful
to a clear understanding of the witnesses’ testimony. Id., citing U.S. v. Henderson,
409 F.3d 1293, 1300 (11th Cir. 2005) (finding that the treating physician’s testimony
as to the diagnosis of the injury itself – a jaw fracture – was permissible lay
testimony, but the doctor’s statement about the cause of the injury was not necessary
to provide the patient with treatment and was, therefore, an impermissible
hypothesis about which only expert witnesses may testify); see also Wilson v. Taser
Int’l, 303 Fed. Appx. 708, 712 (11th Cir. 2008).
In the present matter, for the reasons stated above, none of Plaintiff’s treating
physicians can be considered expert witnesses and all of them must be treated as lay
witnesses at trial. Accordingly, the testimony they may offer at trial should be limited
to the opinion allowed of lay treating physicians under Rule 90.701 (i.e., testimony
about which the doctor has personal knowledge such as diagnosis, examination, and
treatment). Additionally, as lay witnesses, Plaintiff’s treating physicians should be
precluded from answering hypothetical questions. cf. U.S. v. Henderon, 409 F.3d
1293, 1300 (11th Cir. 2005) (“The ability to answer hypothetical questions is ‘the
essential difference’ between expert and lay witnesses.”).
5. Cumulative Expert Testimony
Pursuant to Florida Statute Section 90.403, relevant evidence which is
cumulative in nature may be excluded. Further, the trial court can prevent two
experts from presenting cumulative testimony on the same subject. See Stager v.
Southern Rail Co., 163 So. 2d 15 (Fla. 3rd DCA 1964) (affirming exclusion of third
treating physician’s testimony when evidence would have been cumulative of
testimony of prior two treating physicians). On this issue, the Florida Courts have
found that if proposed testimony would result in nothing but a replication of prior
testimony, any probative value the proposed testimony might otherwise have, is
substantially outweighed by the certainty that cumulative evidence will be presented
needlessly. See, e.g. Gavin v. Promo Brands USA, Inc., 578 So. 2d 518, 519 (4th
DCA 1991) (affirming exclusion of cumulative expert witness testimony); Laurent v.
Uniroyal, Inc., 515 So. 2d 1050, 1051 (Fla. 3rd DCA 1987) (affirming exclusion of
rebuttal expert witness when testimony would have been cumulative).
6. Undisclosed Expert Opinions
The Plaintiff, as well as any other witnesses, must be prohibited from
introducing into evidence any medical opinions from Plaintiff’s expert witnesses and
treating physicians that were not disclosed in their depositions, reports, records they
authored or interrogatory responses. Gouveia v. Phillips, 823 So. 2d 215 (Fla. 4th DCA
2002). Any such testimony would be highly prejudicial, will result in surprise, and
otherwise would result in trial by ambush.
A treating physician is “unquestionably an expert, who does not acquire his
expert knowledge for the purpose of litigation but simply in the course of attempting
to make his patient well.” Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3rd DCA
1981). Allowing a party to have their expert substantially alter his/her testimony at
trial without disclosure presents a “surprise in fact.” Menard v. Univ. Radiation
Oncology Assocs., 976 So. 2d 69, 72 (Fla. 4th DCA 2008) Surprise testimony from an
expert warrants a finding of a mistrial. Suarez-Burgos v. Morhaim, 745 So. 2d 368
(Fla. 4th DCA 1999). The surprise changed or undisclosed testimony of an expert
warrants a new trial, when it results in prejudice to the opposing party. Fidelity
Warranty Services, Inc. v. Firstate Ins. Holdings, Inc., 74 So. 3d 506 (Fla. 4th DCA
2011).
The leading case in Florida concerning surprise expert testimony is the Florida
Supreme Court decision in Binger v. King Pest Control, 401 So 2d 1310 (Fla 1981).
In Binger, the Plaintiff was permitted to allow an undisclosed expert witness,
purportedly for the basis of impeaching the Defendant’s expert, to testify at trial
without any notice to the Defendant. The Florida Supreme Court noted, in deciding
Binger “The goals of these procedural rules [of discovery] are ‘to eliminate surprise,
to encourage settlement, and to assist in arriving at the truth.’” Id. at 1313 citing
Spencer v. Beverly, 307 So.2d 461, 462 (Fla. 4th DCA 1975).The Florida Supreme
Court also set forth the test that should be applied when determining if “surprise”
testimony should be excluded at trial. The Florida Supreme Court explained:
Prejudice in this sense refers to the surprise in fact of the objecting
party, and it is not dependent on the adverse nature of the testimony.
Other factors which may enter into the trial court's exercise of discretion
are: (i) the objecting party's ability to cure the prejudice or, similarly,
his independent knowledge of the existence of the witness; (ii) the
calling party's possible intentional, or bad faith, noncompliance with the
pretrial order; and (iii) the possible disruption of the orderly and efficient
trial of the case.
Id. at 1314.
The Florida Supreme Court ultimately ruled that “The only justification for not
disclosing [the Plaintiff’s expert’s] name was a belief that they could impeach King
Pest Control's expert as a surprise tactic. This intentional nondisclosure, combined
with the surprise and disruption occasioned by the use of the unlisted witness and
inability to alleviate these problems convinces us King Pest Control was prejudiced in
the presentation of its case, and that the district court was correct in directing a new
trial.” Id.
In the instant matter, the Plaintiff has not disclosed any expert witnesses. This
leaves the Plaintiff’s “experts” at trial, to consist of her treating physicians. It is
further presumed that these experts (since they are not retained or otherwise paid
by the Plaintiff) documented their opinions in Ms. Fanous’ medical records, which
were generated contemporaneously through her course of care. To allow testimony
contrary to, or extraneous to, the opinions formed by these physicians during the
Plaintiff’s treatment to be presented at trial would constitute a “surprise in fact” that
cannot be cured while the case is being tried. Pursuant to Binger, and the other
opinions cited herein, any such material testimony concerning the issues of causation,
permanency and damages, would greatly prejudice the Defendants and warrant a
mistrial.
In Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 1999), the Fourth
District Court affirmed the granting of a mistrial as requested by the Plaintiff, due to
surprise expert testimony on the part of the Defendant’s expert. The Defendant’s
expert, for the first time at trial unequivocally opined that the Plaintiff had not
suffered a permanent injury, and admitted some of his testimony was based on
evidence he had been presented mere hours before testifying. Id. at 370. The Fourth
District Court found that “this modification could be viewed as either a reversal of
prior opinions or the admission of opinions not contained in the reports furnished.”
In Cascanet v. Allen, 83 So. 3d 759 (Fla. 3rd DCA 2011) the Third District Court
reversed the outcome of trial, based upon Plaintiff’s claim that the Defendant’s expert
was permitted to testify as to new opinions not contained in his CME report. In Allen,
the court noted that the trial court erred in allowing the defense expert to opine
regarding alternative causes of the Plaintiff’s thigh pain and that spontaneous
recovery of his disc herniations may occur. Id. at 762.
In reaching its holding, the court in Allen cited to Morhaim, and noted “there
is no requirement or need for the opposing party to take the deposition of every
expert where the party has been provided a report.” Id. at 763. The Allen court noted
further “thus, a litigant who receives a report of the examination conducted under
the rule should be confident that the report lists all of the major conclusions of the
examining expert.” Id. See also Office Depot v. Miller, 584 So. 2d 587 (Fla. 4th DCA
1991) (wherein the court held the failure of the defendant to disclose a substantial
reversal of its expert opinion prejudiced the Plaintiff and warranted a new trial.”);
Belmont v. North Broward Hosp. Dist., 727 So. 2d 992 (Fla. 4th DCA 1999). (wherein
Defense expert’s “180 degree” reversal of his opinion regarding the condition of the
deceased’s aorta presented at trial, was found to warrant a mistrial).
The principles and rulings referenced herein are not limited to surprise opinions
by defense experts. In Tetrault v. Fairchild, 799 So. 2d 226 (Fla. 5th DCA 2001) the
Plaintiff claimed permanent injury following an automobile accident. Shortly before
trial, counsel for the Plaintiff contacted the emergency room radiologist who initially
treated the Plaintiff and asked that he re-read subsequent diagnostic studies
undertaken by Fairchild. In answering the Defendant’s expert discovery, the Plaintiff
generally stated that his treating physicians, including his emergency room
radiologist, would testify regarding the issues of permanency, causation, the
Plaintiff’s prognosis, diagnosis, and the necessity for follow-up care. Id.
The Defendant appealed the denial of his motion for a continuance, such that
she could obtain a neuroradiologist to evaluate the Plaintiff’s 1996 and 1999 MRIs
and critique the opinions of the Plaintiff’s emergency room radiologist (who had
rendered new opinions at Plaintiff’s counsel’s request during his interpretation of later
studies). The Fifth District Court reversed and granted the Defendant a new trial. The
court noted “From the date of the plaintiff’s accident until trial, Dr. Gordon was
indicated as nothing more than a post-accident emergency room x-ray reading
radiologist who had written a report reporting no injury. Nothing in the answers to
expert interrogatories and nothing learned by the defendant through the taking of
the plaintiff’s deposition could have reasonably put the defense on notice that Dr.
Gordon would be called to testify as an expert radiologist to give his evaluation of
two subsequent MRIs.” The court further noted that the Plaintiff’s generalized
boilerplate answers to interrogatories concerning his expert’s testimony did not serve
to place the Defendant on notice of Dr. Gordon’s new opinions. Id. at 228.
Similarly, it would not be practical, cost effective or efficient for the Defendants
in this case to take the deposition of every treating physician of the Plaintiff –
especially when Plaintiff has not filed a witness and exhibit list - to ferret out whether
they have new opinions not set forth in their treatment records. This is particularly
true, considering the length of time since Ms. Fanous was last treated for the subject
incident. In the event one of the Plaintiff’s treating physicians is called to testify at
trial, the Defendants should not be subject to an ambush, or surprise testimony by
the physician regarding opinions outside of those in his/her records that were arrived
at in the process of treating Ms. Fanous and attempting to make her well.
In light of the fact that the Plaintiff has communicated, through discovery, that
none of her physicians are retained or otherwise “paid” experts, the Defendants are
left to presume that the extent of their opinions are set forth in Ms. Fanous treatment
records and otherwise, the physician has not been asked to arrive at any new or
extraneous opinions by Plaintiff’s counsel they intend to present at trial.
7. Prior Accidents
Any mention of prior accidents or incidents at the subject premises which are
not substantially similar to the facts of Plaintiff’s incident should be excluded from
trial. Before any mention or evidence of a prior accident or incident may be admitted
at trial, Plaintiff must first prove to the Court outside the presence of the jury the
following elements for each accident or incident she seeks to admit:
. . . the accidents occurred at the same place and under conditions which
were at least substantially similar to the accident in dispute; (2) . . . the
similar accident evidence has some tendency to establish a dangerous
or defective condition at the place in question; (3) . . . the offer of
evidence is to prove not negligence but Notice of the dangerous
character of the condition; (4) . . . the evidence of the similar accidents
offered to establish the existence of a dangerous condition is not too
remote in time to the accident or condition to which such other accidents
are claimed to be similar.
See Friddle v. Seaboard Coast Line R. Co., 306 So. 2d 97, 98 (Fla. 1974)
(adopting the dissent in Seaboard Coast Line R. Co. v. Friddle, 290 So.
2d 85, 89 (Fla. 4th DCA 1974); see also Godfrey v. Precision Airmotive
Corp., 46 So. 3d 1020 (Fla. 5th DCA 2010) (excluding prior accidents
because they were not substantially similar to subject accident).
8. Exclude Internal Policies and Procedures
Defendants anticipate that Plaintiff intends to use Defendants’ internal policies
and procedures, including training materials to prove his claim. Defendants’
compliance or non-compliance with self-imposed guidelines, policies and procedures,
however, is not relevant to a determination of liability.
The key issues are (1) whether Defendants were negligent, (2) whether such
acts or omissions caused injury to Plaintiff and perhaps most importantly (3) whether
the Plaintiff can meet her burden of proof pursuant to Florida’s foreign transitory
substance statute, §768.0755. Plaintiff cannot utilize Defendants’ internal policies
and procedures to set the standard of care when the standard is recognized in the
law. Therefore, said evidence should be excluded from trial because it has no
probative value and would mislead and confuse the jury.
Moreover, Defendants’ policies and procedures are maintained internally, are
not available to customers, not made available for public consumption, and are used
exclusively to provide guidance to Defendants’ employees in the performance of their
duties. Plaintiff did not know of these policies and procedures at the time of the
alleged incident. Furthermore, the mere fact that Defendants may have internal
company policies does not create a legal duty or cause a breach of that duty. See
e.g. Gunlock v. Gill Hotels Co., Inc., 622 So.2d 163, 164 (Fla. 4th DCA 1993)(holding
that an internal policy does not create a substantive duty to follow “the standard of
conduct contained” within the policy); Metropolitan Dade County v. Zapata, 601
So.2d 239, 244 (Fla. 3d DCA 1992) (“an internal rule does not ... fix the standard of
care.”).
Other courts have held likewise. In McDonald v Wal-Mart Stores East, LP, No.
3:07cv425, 2008 WL 153782 (E.D. Va. 2008), the plaintiff tripped and fell on debris
or trash from wrapping products left in an aisle. The plaintiff sought to introduce the
defendant Wal-Mart Corporation’s policies and procedures regarding (1) unwrapping
products, shelving products, and dealing with associated debris, (2) unwrapping and
stocking products for customer purchase, stocking shelves, discarding debris
associated with the same, collecting and disposal of trash and/or product wrap, and
(3) investigation, reporting, recording, and memorialization of accidents on Wal-Mart
premises. Id. at *5. The defendant moved in limine to exclude its internal policies
and procedures because they were irrelevant to the issues.
The Court agreed with the defendant and found that Wal-Mart’s policies and
procedures were inadmissible to prove negligence or to establish the standard of
care. Id. “‘Whether a given course of conduct is negligence or the exercise of
reasonable care must be determined by the standard fixed by law, without regard to
the private rules of the party.’” Id. (quoting Hottle v Beech Aircraft Corp., 47 F.3d
106, 110 (4th Cir. 1995)). Likewise, Wal-Mart’s policies and procedures were
inadmissible to show corporate philosophy or motive of any employee. Id. at *6.
Similar to the Wal-Mart’s policies and procedures in McDonald, Defendants’
policies and procedures are internal and utilized solely by Defendants’ personnel.
Internal policies and procedures are not admissible to prove a violation of the
standard of care and are routinely barred from evidence by courts. See, e.g., Gandy
v. Robey, No. 1:10CV65(LMB/TCB), 2011 WL 11550067 (E.D. Va. May 16, 2011);
Dugle v. Norfolk Southern Ry. Co., No. 07-40, 2010 WL 2710416, at *2 (E.D. Ky.
July 7, 2010); McDonald, 2008 WL 153782.
Additionally, in Harmon v. CSX Transp., Inc., 101 Fed. Appx. 573 (6th Cir.
2004), the plaintiff sued his employer claiming the company negligently failed to warn
him of the dangers of using the cleaning solvent Dowclene and negligently failed to
ensure employees were employing proper safety measures in using Dowclene. The
trial court excluded the employee manual that detailed the proper use of Dowclene
and other chemicals. The trial court explained the manuals articulated the purpose
and use of multiple chemicals, at multiple sites, for multiple purposes. They were
not limited solely to the chemical at issues in the trial. Accordingly, the trial court
concluded that the manuals would only confuse or unduly prejudice the jury. The
court also noted that the plaintiff’s attempts to admit the manuals did not relate to
establishing the proper standard of care.
On appeal, the Court of Appeals for the Sixth Circuit upheld the trial court’s
exclusion of the manuals, explaining that: “The manuals contained references to
other chemicals that the district court had already excluded. They cover a wide
variety of topics and are lengthy in nature, and their introduction would have created
the risk of a confusing sideshow in what was already a lengthy and complicated trial.
Nor did [plaintiff] ever narrow his request to specific portions of the manuals, a failure
that continues to this day.” Id. at 577.
Like the manuals in Harmon, Defendants’ policies, procedures and training
materials, lack relevance and are unduly prejudicial. See Fla. R. Evid. 90.401-403.
Under Florida Rules of Evidence 403, relevant evidence is inadmissible if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
issues, misleading the jury, or needless presentation of cumulative evidence.
Defendants’ compliance or non-compliance with self-imposed guidelines, policies,
and procedures is not relevant to a determination of liability. Again, the applicable
standard is set by the law and not Defendants’ internal policies and procedures.
If Plaintiff is allowed to introduce these materials into evidence or otherwise
refer to them during trial, it will unfairly confuse the issues and mislead the jury about
the controlling standard. See generally In re Worlds of Wonder Sec. Litig., 147 F.R.D.
214, 217 (N.D. Cal. 1992) (“It is also unfair to use professionals’ self-imposed
standards, which may exceed industry standards, against them to try to prove
fraud.”). Therefore, said evidence should be excluded from trial because it has no
probative value and would mislead and confuse the jury. The Defendants would be
severely prejudiced by Plaintiff’s use of these materials if the jury believed that
Defendants had to fulfill all the requirements of its own internal guidance.
9. Accepting Responsibility
Civil defendants have the right to defend themselves from lawsuits and have
the allegations against them resolved by juries of their peers. Fla. Const. Art. 1, §
22. It is well established that it is both improper and prejudicial for plaintiff and/or
counsel to suggest that a defendant is acting improperly by defending the claims, or
to otherwise denigrate its defenses. Carnival Corp. v. Pajares, 972 So. 2d 973, 977–
78 (Fla. 3d DCA 2007) (finding reversible error when Pajares’ counsel argued in
closing: “They won’t accept responsibility. They won’t accept the harm that they
have caused him. They are fighting on both. It is time to hold them responsible.”);
see also Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737–38 (Fla. 3d DCA
1989); Mercury Ins. Co. of Florida v. Moreta, 957 So. 2d 1242, 1251 (Fla. 2d DCA
2007).
10. Motion to Strike or Limit Plaintiff’s Before-and-After Witnesses
By this Motion, Defendants seek to strike any before or after witnesses as the
Plaintiff has not filed a Witness & Exhibit List, or, in the alternative, limit the number
of before-and-after witnesses Plaintiff may introduce at trial to one.
The probative value of duplicative before-and-after testimony is substantially
outweighed by considerations of the needless presentation of cumulative evidence
and a waste of limited judicial resources. As such, the Defendants request the Court
order Plaintiff to promptly identify which witness will be called to testify as a before-
and after witness so as to avoid being surprised at trial.
Fla. Stat. § 90.403 provides the balancing test for whether relevant evidence
is admissible: relevant evidence is inadmissible if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of issues, misleading the
jury, or needless presentation of cumulative evidence. Fla. Stat. § 90.403 (2014).
“It is permissible for the trial court to preclude a party from introducing cumulative
testimony.” Probkevitz v. Velda Farms, LLC, 22 So.3d 609, 616 (Fla. 3d DCA 2009)
citing Rhodes v. Asplundh Tree Expert Co., 528 So.2d 459, 460 (Fla. 3d DCA 1988).
In order to determine whether the challenged evidence is cumulative, courts look at
whether the evidence offers any additional information or if it is merely duplicative
of testimony already received. Joseph F. Maimone Sec. & Investigations, Inc. v. Am.
Exp. Travel Related Servs., Inc., 598 So.2d 272, 272 (Fla. 3d DCA 1992).
Here, additional witnesses would offer little more than stating they observed
Plaintiff’s demeanor and/or changes in her physical condition before and after the
alleged accident. Individually, the testimony may be relevant; albeit minimally.
However, when combined, multiple witnesses provide a chorus of harmonious
testimony which has the effect of misleading the jury and affording undue weight to
the testimony. In order to avoid this prejudice to the defense, Plaintiff should be
limited to presenting one witness on the before-and-after issues.
Moreover, to the extent these witnesses testify that Plaintiff appeared injured,
depressed, or neurologically/cognitively deficient, this constitutes impermissible lay
witness opinion testimony on areas requiring medical expertise such as neurology
and psychology/psychiatry. Fla. Stat. § 90.701 forbids a lay witness from providing
opinions on areas of specialized knowledge and experience. See § 90.701, Fla. Stat.
(2010) (providing that under certain circumstances recited in the statute, a lay
witness may provide opinion testimony when the “opinions and inferences do not
require a special knowledge, skill, experience, or training”).
11. Exclude “Reptile” Theory Argument
The Plaintiff should be prohibited from invoking the “Reptile” theory at trial. As
discussed in greater detail below, this theory aims to inflame the passions and
prejudices of the jury by inducing fear in an attempt to convince them a verdict for
the Plaintiff will make the community, including the juror, safe or otherwise safer.
Any effort on the part of the Plaintiff to advance a “Reptile” theory at trial is akin to
a “Golden rule” or "conscious of the community" argument, which Florida courts have
routinely found improper and inflammatory. See Bocher v. Glass, 874 So. 2d 701
(Fla. 1st DCA 2004) (“‘Golden rule’ arguments are improper because they depend
upon inflaming the passions of the jury and inducing fear and self-interest.”). See
also Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla.4th DCA 1996); Blue Grass
Shows, Inc. v. Collins, 614 So. 2d 626 (Fla. 1st DCA 1993).
The Reptile theory stems from Don Keenan and David Ball's book, Reptile: The
2009 Manual of The Plaintiff's Revolution. In essence, the thesis of this book is that
jurors, as human beings, have reptilian brains. The reptile brain is the portion that
houses basic instinctual behaviors such as aggression, dominance, and survival.
These instincts are automatic and drive behavior and reactions without thought or
reflection. When a danger is perceived, the reptile brain takes control in an attempt
to maximize survival and minimize danger.
The goal of the "Reptile" theory advanced in this book is to instill fear in the
minds of jurors, to trigger this survival mode, and to compel the juror to act. As
stated by Keenan and Ball, "when the Reptile sees a survival danger, she protects
her genes by impelling the juror to protect himself and the community." Id. at 19.
The Plaintiff should be prevented from appealing the jurors' “reptilian brains” by
characterizing legal duties, laws, or practices within the industry as "safety rules"
intended to prevent injury and protect the individual jurors, as well as the community.
The Defendants anticipate the Plaintiff will attempt to convince the jury that a verdict
against Defendants will make the community and juror safer, as it will prevent
Defendants (and others similarly situated) from creating “danger” and/or “red flags”
without regard to the actual legal duties owed. Instead of focusing on legal duties,
the “Reptile” theory seeks to influence jurors by passion and emotion.1
The "Reptile" theory is no different than other impermissible "golden rule" or
“conscience of the community” type arguments. See Collins, 614 So. 2d at 627
(finding the "range of what will be considered an impermissible 'conscience of the
1
As of the filing of this motion, http://reptilekeenanball.com/ touts the “Reptile” theory and approach as garnering
$6,372,295,758.00 in jury verdicts and settlement.
community' argument extends to all impassioned and prejudicial pleas intended to
evoke a sense of community law through common duty and expectation."). As
discussed above, the "Reptile" theory specifically implores attorneys to appeal to the
jurors' own sense of self-protection, passion and prejudice, in order to persuade and
prevail at trial. Such argument is an improper distraction from each juror's sworn
duty to reach a fair, honest and just verdict, in accord with the facts and evidence
presented at trial. Id.
Accordingly, the "Reptile" theory and all related arguments (such as referring
to an element of Plaintiff’s case as consistent with "fairness," "justice," or within a
"safety rule," etc., in the context of the conscious of the community) must be
excluded from trial, as such arguments serve no legitimate purpose and carry a
substantial risk of imparting unfair prejudice and injustice upon the Defendants. See,
Norman, 668 So. 2d at 1023 (stating that "inflammatory arguments made by counsel
for either plaintiff or defendant will not be tolerated"); Bocher, 874 So. 2d at 703
(stating that “golden rule” arguments are improper because they depend upon
inflaming the passions of the jury and inducing fear and self-interest).
As this type of argument serves no legitimate purpose and seeks only to
impassion and prejudice the jury as described above, Plaintiff must be prevented
from advancing arguments and questions of this nature. Perper v. Edell, 44 So. 2d
78, 80 (Fla. 1949) (stating that "if the introduction of the evidence tends in actual
operation to produce a confusion in the minds of the jurors in excess of the legitimate
probative effect of such evidence—if it tends to obscure rather than illuminate the
true issue before the jury—then such evidence should be excluded."); Fla.Stat. §
90.403. An Order in Limine upon the instant motion will prevent the risk that the
jury will infer, by the Defendants’ objections, that it is attempting to hide or disguise
matters otherwise useful. Bocher, 874 So. 2d at 704.
12. Exclude Evidence Related to Speculative Future Treatment
In reviewing the Plaintiff’s medical records, it appears she has not received
additional treatment since 2021. In addition, due to the Plaintiff’s failure to produce
any updated records, it is uncertain whether she will require future medical care.
Further, during her deposition, she testified that she had pre-existing lumbar injuries
for which she received minimal treatment.
“In a personal injury action in which the plaintiff seeks damages for medical
expenses, ‘only medical expenses which are reasonably certain to be incurred in the
future are recoverable.’” Truelove v. Blount, 954 So.2d 1284 (Fla. 2d DCA 2007)
(citing Loftin v. Wilson, 67 So.2d 185 (Fla. 1953)). “[A] recovery of future medical
expenses cannot be grounded on the mere ‘possibility’ that certain treatment ‘might’
be obtained in the future.” White v. Westlund, 624 So.2d 1148 (Fla. 4th DCA 1993).
In order to recover future damages, a claimant is required to prove that future
economic damages are reasonably certain to occur. Auto-Owners Ins. Co. v.
Tompkins, 651 So.2d 89 (Fla. 1995).
Under Florida law, the Plaintiff must establish within a reasonable degree of
certainty that she will undergo future medical treatment for the injuries caused by
the Defendants’ negligence. Shearon v. Sullivan, 821 So.2d 1222, 1224 (Fla. 1st
DCA 2002); see also Pruitt v. Perez-Gervert, 41 So. 3d 286 (Fla. 2nd DCA 2010),
review dismissed, 2010 WL 4261407 (Fla. 2010). This “reasonable certainty”
standard provides that “. . . a recovery of future medical expenses cannot be
grounded on the mere possibility that certain treatment might be obtained.” Id. The
“reasonable certainty” standard requires Plaintiff to prove that he will, more probably
than not, need these medical services in the future. Grubbs at 556. A plaintiff is not
entitled to damages for future medical expenses which are not supported by the
evidence. Garriga v. Guerra, 753 So.2d 146 (Fla. 3d DCA 2000).
In Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 556 (Fla. 3d DCA 2000), the
Court addressed the award of damages by a trial court to a plaintiff for a future hip
replacement. The Court noted the burden upon the plaintiff to prove that future
medical expenses will more probably than not be incurred, and that a plaintiff’s
burden may only be met with “competent substantial evidence.” Grubbs at 556. In
the present matter, the Plaintiff has not provided any competent substantial evidence
that any future relevant treatment is more likely than not to occur.
13. Exclude Evidence of Lost Wages or Loss of Earning Capacity
Within the Complaint, the Plaintiff has alleged that her damages include lost
wages and loss of future earning capacity. However, during her deposition, the
Plaintiff denied she was making a demand for any wage-related damages. As such,
the Plaintiff should not be permitted to present evidence related to these claims.
Moreover, in a claim for lost wages, some form of documentary evidence
tending to prove the wage loss is virtually essential. See General Repair Service, Inc.
v. McKenzie, 577 So.2d 619 (Fla. 1st DCA 1991). The party seeking damages must
present evidence to a jury to justify an award of damages in a definite amount. Smith
at 129; United Steel & Strip Corp. v. Monex Corp., 310 So.2d 339 (Fla. 3d DCA
1975)(holding that “[d]amages are recoverable only to the extent that the evidence
affords a sufficient basis for estimating an amount in money with reasonable
certainty.”) Since the Plaintiff has denied lost wages or loss of future earning and
has not presented any evidence as to those damages, the Plaintiff should not be
permitted to pursue these claims.
14. Plaintiff Should Be Restricted to Only Actual Amounts Billed
The law in Florida requires that all medical and hospital bills offered into
evidence at trial for past medical treatment of a plaintiff shall reflect the actual
amount that the health care providers agreed to accept in payment, or wrote off,
rather than the full amount said health care providers billed. Plaintiff shall not be
allowed to make any statements or introduce into evidence as compensatory
damages any amounts of medical bills for which the Plaintiff never incurred any legal
liability to pay. Goble v. Frohman, 901 So.2d 830 (Fla. 2005); Cooperative Leasing,
Inv. v. Johnson, 872 So.2d 596 (Fla. 2d DCA 2004).
Likewise, the Plaintiff should be prohibited from referring to or attempting to
introduce into evidence the full amount of any hospital or medical bill incurred by
Plaintiff that were paid by Medicaid or Medicare, as a result of the subject accident,
at the trial in this matter. Under the holding in Cooperative Leasing, Inc. v. Johnson,
872 So.2d 959 (2d DCA 2004), Plaintiff is only permitted to recover the amount which
a Medicaid or Medicare provider accepted in payment as compensatory damages.
15. Subsequent Remedial Measures
The presentation of any evidence or testimony regarding any changes to the
Defendants’ premises after the alleged incident involving the Plaintiff constitutes a
“subsequent remedial measure” which should not be put before the jury. Florida
Statutes § 90.407 provides “evidence of measures taken after an injury or harm
caused by an event, which measures if taken before the event would have made
injury or harm less likely to occur, is not admissible to prove negligence, the existence
of a product defect, or culpable conduct in connection with the event.” Evidence of
subsequent remedial measures being inadmissible is based upon sound public policy.
Walt Disney World Company v. Blalock, 640 So. 2d 1156 (Fla. 1st DCA 1994). The
admission of evidence of subsequent remedial measures is sufficient to trigger the
court's discretion in ordering a new trial. Jordan v. School Board, 531 So 2d 978 (Fla.
4th DCA 1988); McIntosh v. Flagler Title Co., 483 So.2d 50 (Fla. 4th DCA 1986).
16. Reference to Defendants Involvement in Prior Lawsuits
Defendants hereby move in limine to exclude any reference to its
involvement in lawsuits before or after the incident. The Defendants are a large,
multi-state corporation with convenience store locations throughout United States.
Any such reference would be completely irrelevant to the issues in this lawsuit, and
has the potential to be highly prejudicial while having no probative value.
17. References to Defendants’ Counsel’s Law Firm.
Defendants hereby moves in limine to preclude any reference, argument or
evidence at trial concerning defense counsel’s law firm, the law firm being “insurance
defense lawyers”, “hired guns” or “corporate lawyers” or the like. Any such reference
would be completely irrelevant to the issues in this lawsuit, and otherwise would be
made solely to disparage defense counsel in the eyes of the jury and inflame the jury.
18. Lay Witness testimony as to Causation of Injuries
Defendants hereby move in limine to preclude the testimony of any lay
witnesses as to the issue of causation for the Plaintiff’s injuries and subsequent
treatment. This type of questioning of a lay witness is improper because it calls for
the opinion of a qualified expert. If a witness is not testifying as an expert, the
witness's testimony in the form of opinions or inferences is limited to those opinions
or inferences which (a) are based on the perception of the witness, (b) are not
misleading to the trier of fact, and (c) do not require special knowledge, skill,
experience or training. Fla. Stat. 90.701. An opinion about injury causation most
certainly requires special knowledge, skill, experience, and training.
In Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 556 (Fla. 3d DCA 2000), the
court addresses the award of damages by a trial court to a plaintiff for a future hip
replacement. The court noted the burden upon the plaintiff to prove that future
medical expenses will more probably than not be incurred, and that a plaintiff’s
burden may only be met with “competent substantial evidence.” Grubbs at 556. The
first component of a claim for future medical expenses is evidence that the future
medical expenses are reasonably certain to be incurred in the future. Truelove at
1287.
In support of the foregoing, the Defendants state that the purpose of a Motion
in Limine is to exclude irrelevant and immaterial evidence or to exclude evidence
when its probative value is outweighed by danger of unfair prejudice. See Devoe v.
Western Auto Supply Co., 537 So. 2d 1988 (Fla. 2d DCA 1989). Additionally, the
foregoing would not be admissible upon proper objection by these Defendants at trial
and, therefore, a Pre-Trial Order barring the same from being brought up at trial is
appropriate and exhibit may serve the additional benefit of apprising the pro se
Plaintiff as to what arguments and evidence are appropriate at trial.
WHEREFORE, the Defendants respectfully request this Honorable Court grant
its Motions in Limine as set forth above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st day of November a true copy of the foregoing
has been electronically filed with the Clerk of Court using the Florida E-Filing Portal
which will electronically serve a copy of the foregoing via e-mail to all involved
parties.
Respectfully submitted,
BOYD RICHARDS PARKER & COLONNELLI, P.L.
Counsel for Defendant: Speedway LLC
400 N. Ashley Drive, Suite 1150
Tampa, FL 33602
Tel: 813-223-6021; Fax: 813-223-6024
By: _ /s/ Brian J. Durham
Brian J. Durham- FL Bar No.: 93746
bdurham@boydlawgroup.com
afreire@boydlawgroup.com
kbarberan@boydlawgroup.com
servicetpa@boydlawgroup.com
Preview
Filing # 185237180 E-Filed 11/01/2023 12:46:45 PM IN THE CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2022-CA-00028-ON LILIANA FANOUS, Plaintiff, V. SPEEDWAY LLC, and DANAY FELICIANO Defendants / DEFENDANTS’ OMNIBUS MOTIONS IN LIMINE Defendants, by and through undersigned counsel, move this Court for an Order prohibiting Plaintiff, Liliana Fanous, from mentioning, referring to, or attempting to elicit testimony, in opening statements, during the presentation of evidence, or in closing statements regarding the following issues. This Omnibus Motion is particularly needed as the Plaintiff is proceeding pro se and may be unaware of the rules of evidence. While Plaintiff has not yet disclosed, experts, or filed a Witness & Exhibit List, The Defendant continues to abide by the deadlines provided in the Uniform Trial Order issued on May 31, 2023 despite the Plaintiff’s failure to comply with the same. 1. Insurance Coverage No mention shall be made of the existence or non-existence of insurance coverage in favor of the Defendants relative to any issues in the lawsuit, including references to Defendants being self-insured. The existence of insurance coverage has no bearing on the issues of liability and damages and should not be considered. Allstate Ins. Co. v. Wood, 535 So. 2d 699, 700 (Fla. 1st DCA 1988). Florida has long recognized the concern that knowledge of a defendant’s insurance coverage may result in the jury attributing liability where none exists. Thompson v. Florida Drum Co., 651 So. 2d 180, 182 (Fla. 1st DCA 1995). 2. Exclude Any Evidence and/or References to Parties’ Economic Standing In this case the Plaintiff is an individual, while one of the Defendants herein, is a large multi-state corporate entity. Reference to the wealth or poverty of either party, or reflection on financial disparity, is clearly an improper argument. Chin v. Caiaffa, 42 So.3d 300, 308 (Fla. 3d DCA 2010); Carnival Corp. v. Pajares, 972 So.2d 973, 977 (Fla. 3d DCA 2007). In U.S. v. Socony Vacuum Oil Co., 310 U.S. 150 (1940), the United States Supreme Court held that appeals to class were highly improper and urged trial courts to be alert to prevent such discourse. “Argument directly contrasting the poverty of one of the parties with the wealth of the other is especially apt to prejudice the jury.” Batlemento v. Dove Fountain, Inc., 593 So.2d 234, 241 (Fla. 5th DCA 1991), rev. denied, 601 So.2d 551 (Fla. 1992) (citations omitted). Therefore, this Court should not permit any reference to the economic standings of the parties. See Brough v. Imperial Sterling, Ltd., 297 F.3d 1172, 1178 (11th Cir. 2002), citing, Batlemento, 593 So.2d at 241. 3. Failure to Call Witness No reference shall be made to the failure of a party to call a witness who is equally available to both sides. Lowder v. Family Health Care Center, 680 So. 2d 1133 (Fla 3d DCA 1996); Riggins v. Mariner Boat Works, 545 So. 2d 430 (Fla. 2d DCA 1989). 4. Exclude Expert Testimony of Plaintiff’s Treating Physicians The Defendants anticipate that during trial, expert physicians will be asked to provide expert witness testimony in the form of answers to hypothetical questions and opinions as to causation. However, Plaintiff’s treating physicians should be precluded from providing any unfounded testimony. The Florida Rules of Civil Procedure sets forth some general requirements regarding experts. See Fla. R. Civ. P. 1.280. Plaintiff’s treating physicians should only be permitted to testify as expert witnesses pursuant to Fla. R. Evid. 90.701. Under Fla. R. Evid. 90.701, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when: (1) the witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and (2) the opinions and inferences do not require a special knowledge, skill, experience, or training. A treating doctor does not acquire his expert knowledge for the purpose of litigation, but rather simply in the course of attempting to make his patient well. See generally, Marine Exploration Co. v. McCoy, 308 So.2d 43 (Fla. 3d DCA 1975); Marshall v. Papineau, 132 So.2d 786 (Fla. 1st DCA 1961). “Expert” witnesses whose information was not acquired in preparation for trial, but rather as an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit, should be treated as an ordinary witness. Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla. 3d DCA 1981) (finding that any practitioner who has treated plaintiff is just an “actor” in the case and a “viewer” of her condition who is to be “treated as an ordinary witness”); Vargas v. Gutierrez, 176 So.3d 315, 325 (Fla. 3d DCA 2015), reh'g denied (Oct. 8, 2015) (“A well-known parable warns readers to be watchful for wolves in sheep's clothing; trial courts should likewise be wary of litigants attempting to elicit expert testimony disguised as fact testimony from a treating physician.”) “A treating physician is not an ‘expert’ witness if he or she testifies about observations based on personal knowledge, including the treatment of a party.” Cf. Principi v. Survivair, Inc., 231 F.R.D. 685, 692 (M.D. Fla. 2005). As a fact witness, treating physicians must base their opinions on facts of which they have personal knowledge. Phillips v. American Honda Motor Co., Inc., 438 F. Supp. 2d 1328, 1330 (S.D. Ala. 2006). As a result, Plaintiff’s treating physicians should not be permitted to testify, for example, regarding causation unless the determination of causation was required for treatment and their opinions are helpful to a clear understanding of the witnesses’ testimony. Id., citing U.S. v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (finding that the treating physician’s testimony as to the diagnosis of the injury itself – a jaw fracture – was permissible lay testimony, but the doctor’s statement about the cause of the injury was not necessary to provide the patient with treatment and was, therefore, an impermissible hypothesis about which only expert witnesses may testify); see also Wilson v. Taser Int’l, 303 Fed. Appx. 708, 712 (11th Cir. 2008). In the present matter, for the reasons stated above, none of Plaintiff’s treating physicians can be considered expert witnesses and all of them must be treated as lay witnesses at trial. Accordingly, the testimony they may offer at trial should be limited to the opinion allowed of lay treating physicians under Rule 90.701 (i.e., testimony about which the doctor has personal knowledge such as diagnosis, examination, and treatment). Additionally, as lay witnesses, Plaintiff’s treating physicians should be precluded from answering hypothetical questions. cf. U.S. v. Henderon, 409 F.3d 1293, 1300 (11th Cir. 2005) (“The ability to answer hypothetical questions is ‘the essential difference’ between expert and lay witnesses.”). 5. Cumulative Expert Testimony Pursuant to Florida Statute Section 90.403, relevant evidence which is cumulative in nature may be excluded. Further, the trial court can prevent two experts from presenting cumulative testimony on the same subject. See Stager v. Southern Rail Co., 163 So. 2d 15 (Fla. 3rd DCA 1964) (affirming exclusion of third treating physician’s testimony when evidence would have been cumulative of testimony of prior two treating physicians). On this issue, the Florida Courts have found that if proposed testimony would result in nothing but a replication of prior testimony, any probative value the proposed testimony might otherwise have, is substantially outweighed by the certainty that cumulative evidence will be presented needlessly. See, e.g. Gavin v. Promo Brands USA, Inc., 578 So. 2d 518, 519 (4th DCA 1991) (affirming exclusion of cumulative expert witness testimony); Laurent v. Uniroyal, Inc., 515 So. 2d 1050, 1051 (Fla. 3rd DCA 1987) (affirming exclusion of rebuttal expert witness when testimony would have been cumulative). 6. Undisclosed Expert Opinions The Plaintiff, as well as any other witnesses, must be prohibited from introducing into evidence any medical opinions from Plaintiff’s expert witnesses and treating physicians that were not disclosed in their depositions, reports, records they authored or interrogatory responses. Gouveia v. Phillips, 823 So. 2d 215 (Fla. 4th DCA 2002). Any such testimony would be highly prejudicial, will result in surprise, and otherwise would result in trial by ambush. A treating physician is “unquestionably an expert, who does not acquire his expert knowledge for the purpose of litigation but simply in the course of attempting to make his patient well.” Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3rd DCA 1981). Allowing a party to have their expert substantially alter his/her testimony at trial without disclosure presents a “surprise in fact.” Menard v. Univ. Radiation Oncology Assocs., 976 So. 2d 69, 72 (Fla. 4th DCA 2008) Surprise testimony from an expert warrants a finding of a mistrial. Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 1999). The surprise changed or undisclosed testimony of an expert warrants a new trial, when it results in prejudice to the opposing party. Fidelity Warranty Services, Inc. v. Firstate Ins. Holdings, Inc., 74 So. 3d 506 (Fla. 4th DCA 2011). The leading case in Florida concerning surprise expert testimony is the Florida Supreme Court decision in Binger v. King Pest Control, 401 So 2d 1310 (Fla 1981). In Binger, the Plaintiff was permitted to allow an undisclosed expert witness, purportedly for the basis of impeaching the Defendant’s expert, to testify at trial without any notice to the Defendant. The Florida Supreme Court noted, in deciding Binger “The goals of these procedural rules [of discovery] are ‘to eliminate surprise, to encourage settlement, and to assist in arriving at the truth.’” Id. at 1313 citing Spencer v. Beverly, 307 So.2d 461, 462 (Fla. 4th DCA 1975).The Florida Supreme Court also set forth the test that should be applied when determining if “surprise” testimony should be excluded at trial. The Florida Supreme Court explained: Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court's exercise of discretion are: (i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case. Id. at 1314. The Florida Supreme Court ultimately ruled that “The only justification for not disclosing [the Plaintiff’s expert’s] name was a belief that they could impeach King Pest Control's expert as a surprise tactic. This intentional nondisclosure, combined with the surprise and disruption occasioned by the use of the unlisted witness and inability to alleviate these problems convinces us King Pest Control was prejudiced in the presentation of its case, and that the district court was correct in directing a new trial.” Id. In the instant matter, the Plaintiff has not disclosed any expert witnesses. This leaves the Plaintiff’s “experts” at trial, to consist of her treating physicians. It is further presumed that these experts (since they are not retained or otherwise paid by the Plaintiff) documented their opinions in Ms. Fanous’ medical records, which were generated contemporaneously through her course of care. To allow testimony contrary to, or extraneous to, the opinions formed by these physicians during the Plaintiff’s treatment to be presented at trial would constitute a “surprise in fact” that cannot be cured while the case is being tried. Pursuant to Binger, and the other opinions cited herein, any such material testimony concerning the issues of causation, permanency and damages, would greatly prejudice the Defendants and warrant a mistrial. In Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 1999), the Fourth District Court affirmed the granting of a mistrial as requested by the Plaintiff, due to surprise expert testimony on the part of the Defendant’s expert. The Defendant’s expert, for the first time at trial unequivocally opined that the Plaintiff had not suffered a permanent injury, and admitted some of his testimony was based on evidence he had been presented mere hours before testifying. Id. at 370. The Fourth District Court found that “this modification could be viewed as either a reversal of prior opinions or the admission of opinions not contained in the reports furnished.” In Cascanet v. Allen, 83 So. 3d 759 (Fla. 3rd DCA 2011) the Third District Court reversed the outcome of trial, based upon Plaintiff’s claim that the Defendant’s expert was permitted to testify as to new opinions not contained in his CME report. In Allen, the court noted that the trial court erred in allowing the defense expert to opine regarding alternative causes of the Plaintiff’s thigh pain and that spontaneous recovery of his disc herniations may occur. Id. at 762. In reaching its holding, the court in Allen cited to Morhaim, and noted “there is no requirement or need for the opposing party to take the deposition of every expert where the party has been provided a report.” Id. at 763. The Allen court noted further “thus, a litigant who receives a report of the examination conducted under the rule should be confident that the report lists all of the major conclusions of the examining expert.” Id. See also Office Depot v. Miller, 584 So. 2d 587 (Fla. 4th DCA 1991) (wherein the court held the failure of the defendant to disclose a substantial reversal of its expert opinion prejudiced the Plaintiff and warranted a new trial.”); Belmont v. North Broward Hosp. Dist., 727 So. 2d 992 (Fla. 4th DCA 1999). (wherein Defense expert’s “180 degree” reversal of his opinion regarding the condition of the deceased’s aorta presented at trial, was found to warrant a mistrial). The principles and rulings referenced herein are not limited to surprise opinions by defense experts. In Tetrault v. Fairchild, 799 So. 2d 226 (Fla. 5th DCA 2001) the Plaintiff claimed permanent injury following an automobile accident. Shortly before trial, counsel for the Plaintiff contacted the emergency room radiologist who initially treated the Plaintiff and asked that he re-read subsequent diagnostic studies undertaken by Fairchild. In answering the Defendant’s expert discovery, the Plaintiff generally stated that his treating physicians, including his emergency room radiologist, would testify regarding the issues of permanency, causation, the Plaintiff’s prognosis, diagnosis, and the necessity for follow-up care. Id. The Defendant appealed the denial of his motion for a continuance, such that she could obtain a neuroradiologist to evaluate the Plaintiff’s 1996 and 1999 MRIs and critique the opinions of the Plaintiff’s emergency room radiologist (who had rendered new opinions at Plaintiff’s counsel’s request during his interpretation of later studies). The Fifth District Court reversed and granted the Defendant a new trial. The court noted “From the date of the plaintiff’s accident until trial, Dr. Gordon was indicated as nothing more than a post-accident emergency room x-ray reading radiologist who had written a report reporting no injury. Nothing in the answers to expert interrogatories and nothing learned by the defendant through the taking of the plaintiff’s deposition could have reasonably put the defense on notice that Dr. Gordon would be called to testify as an expert radiologist to give his evaluation of two subsequent MRIs.” The court further noted that the Plaintiff’s generalized boilerplate answers to interrogatories concerning his expert’s testimony did not serve to place the Defendant on notice of Dr. Gordon’s new opinions. Id. at 228. Similarly, it would not be practical, cost effective or efficient for the Defendants in this case to take the deposition of every treating physician of the Plaintiff – especially when Plaintiff has not filed a witness and exhibit list - to ferret out whether they have new opinions not set forth in their treatment records. This is particularly true, considering the length of time since Ms. Fanous was last treated for the subject incident. In the event one of the Plaintiff’s treating physicians is called to testify at trial, the Defendants should not be subject to an ambush, or surprise testimony by the physician regarding opinions outside of those in his/her records that were arrived at in the process of treating Ms. Fanous and attempting to make her well. In light of the fact that the Plaintiff has communicated, through discovery, that none of her physicians are retained or otherwise “paid” experts, the Defendants are left to presume that the extent of their opinions are set forth in Ms. Fanous treatment records and otherwise, the physician has not been asked to arrive at any new or extraneous opinions by Plaintiff’s counsel they intend to present at trial. 7. Prior Accidents Any mention of prior accidents or incidents at the subject premises which are not substantially similar to the facts of Plaintiff’s incident should be excluded from trial. Before any mention or evidence of a prior accident or incident may be admitted at trial, Plaintiff must first prove to the Court outside the presence of the jury the following elements for each accident or incident she seeks to admit: . . . the accidents occurred at the same place and under conditions which were at least substantially similar to the accident in dispute; (2) . . . the similar accident evidence has some tendency to establish a dangerous or defective condition at the place in question; (3) . . . the offer of evidence is to prove not negligence but Notice of the dangerous character of the condition; (4) . . . the evidence of the similar accidents offered to establish the existence of a dangerous condition is not too remote in time to the accident or condition to which such other accidents are claimed to be similar. See Friddle v. Seaboard Coast Line R. Co., 306 So. 2d 97, 98 (Fla. 1974) (adopting the dissent in Seaboard Coast Line R. Co. v. Friddle, 290 So. 2d 85, 89 (Fla. 4th DCA 1974); see also Godfrey v. Precision Airmotive Corp., 46 So. 3d 1020 (Fla. 5th DCA 2010) (excluding prior accidents because they were not substantially similar to subject accident). 8. Exclude Internal Policies and Procedures Defendants anticipate that Plaintiff intends to use Defendants’ internal policies and procedures, including training materials to prove his claim. Defendants’ compliance or non-compliance with self-imposed guidelines, policies and procedures, however, is not relevant to a determination of liability. The key issues are (1) whether Defendants were negligent, (2) whether such acts or omissions caused injury to Plaintiff and perhaps most importantly (3) whether the Plaintiff can meet her burden of proof pursuant to Florida’s foreign transitory substance statute, §768.0755. Plaintiff cannot utilize Defendants’ internal policies and procedures to set the standard of care when the standard is recognized in the law. Therefore, said evidence should be excluded from trial because it has no probative value and would mislead and confuse the jury. Moreover, Defendants’ policies and procedures are maintained internally, are not available to customers, not made available for public consumption, and are used exclusively to provide guidance to Defendants’ employees in the performance of their duties. Plaintiff did not know of these policies and procedures at the time of the alleged incident. Furthermore, the mere fact that Defendants may have internal company policies does not create a legal duty or cause a breach of that duty. See e.g. Gunlock v. Gill Hotels Co., Inc., 622 So.2d 163, 164 (Fla. 4th DCA 1993)(holding that an internal policy does not create a substantive duty to follow “the standard of conduct contained” within the policy); Metropolitan Dade County v. Zapata, 601 So.2d 239, 244 (Fla. 3d DCA 1992) (“an internal rule does not ... fix the standard of care.”). Other courts have held likewise. In McDonald v Wal-Mart Stores East, LP, No. 3:07cv425, 2008 WL 153782 (E.D. Va. 2008), the plaintiff tripped and fell on debris or trash from wrapping products left in an aisle. The plaintiff sought to introduce the defendant Wal-Mart Corporation’s policies and procedures regarding (1) unwrapping products, shelving products, and dealing with associated debris, (2) unwrapping and stocking products for customer purchase, stocking shelves, discarding debris associated with the same, collecting and disposal of trash and/or product wrap, and (3) investigation, reporting, recording, and memorialization of accidents on Wal-Mart premises. Id. at *5. The defendant moved in limine to exclude its internal policies and procedures because they were irrelevant to the issues. The Court agreed with the defendant and found that Wal-Mart’s policies and procedures were inadmissible to prove negligence or to establish the standard of care. Id. “‘Whether a given course of conduct is negligence or the exercise of reasonable care must be determined by the standard fixed by law, without regard to the private rules of the party.’” Id. (quoting Hottle v Beech Aircraft Corp., 47 F.3d 106, 110 (4th Cir. 1995)). Likewise, Wal-Mart’s policies and procedures were inadmissible to show corporate philosophy or motive of any employee. Id. at *6. Similar to the Wal-Mart’s policies and procedures in McDonald, Defendants’ policies and procedures are internal and utilized solely by Defendants’ personnel. Internal policies and procedures are not admissible to prove a violation of the standard of care and are routinely barred from evidence by courts. See, e.g., Gandy v. Robey, No. 1:10CV65(LMB/TCB), 2011 WL 11550067 (E.D. Va. May 16, 2011); Dugle v. Norfolk Southern Ry. Co., No. 07-40, 2010 WL 2710416, at *2 (E.D. Ky. July 7, 2010); McDonald, 2008 WL 153782. Additionally, in Harmon v. CSX Transp., Inc., 101 Fed. Appx. 573 (6th Cir. 2004), the plaintiff sued his employer claiming the company negligently failed to warn him of the dangers of using the cleaning solvent Dowclene and negligently failed to ensure employees were employing proper safety measures in using Dowclene. The trial court excluded the employee manual that detailed the proper use of Dowclene and other chemicals. The trial court explained the manuals articulated the purpose and use of multiple chemicals, at multiple sites, for multiple purposes. They were not limited solely to the chemical at issues in the trial. Accordingly, the trial court concluded that the manuals would only confuse or unduly prejudice the jury. The court also noted that the plaintiff’s attempts to admit the manuals did not relate to establishing the proper standard of care. On appeal, the Court of Appeals for the Sixth Circuit upheld the trial court’s exclusion of the manuals, explaining that: “The manuals contained references to other chemicals that the district court had already excluded. They cover a wide variety of topics and are lengthy in nature, and their introduction would have created the risk of a confusing sideshow in what was already a lengthy and complicated trial. Nor did [plaintiff] ever narrow his request to specific portions of the manuals, a failure that continues to this day.” Id. at 577. Like the manuals in Harmon, Defendants’ policies, procedures and training materials, lack relevance and are unduly prejudicial. See Fla. R. Evid. 90.401-403. Under Florida Rules of Evidence 403, relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. Defendants’ compliance or non-compliance with self-imposed guidelines, policies, and procedures is not relevant to a determination of liability. Again, the applicable standard is set by the law and not Defendants’ internal policies and procedures. If Plaintiff is allowed to introduce these materials into evidence or otherwise refer to them during trial, it will unfairly confuse the issues and mislead the jury about the controlling standard. See generally In re Worlds of Wonder Sec. Litig., 147 F.R.D. 214, 217 (N.D. Cal. 1992) (“It is also unfair to use professionals’ self-imposed standards, which may exceed industry standards, against them to try to prove fraud.”). Therefore, said evidence should be excluded from trial because it has no probative value and would mislead and confuse the jury. The Defendants would be severely prejudiced by Plaintiff’s use of these materials if the jury believed that Defendants had to fulfill all the requirements of its own internal guidance. 9. Accepting Responsibility Civil defendants have the right to defend themselves from lawsuits and have the allegations against them resolved by juries of their peers. Fla. Const. Art. 1, § 22. It is well established that it is both improper and prejudicial for plaintiff and/or counsel to suggest that a defendant is acting improperly by defending the claims, or to otherwise denigrate its defenses. Carnival Corp. v. Pajares, 972 So. 2d 973, 977– 78 (Fla. 3d DCA 2007) (finding reversible error when Pajares’ counsel argued in closing: “They won’t accept responsibility. They won’t accept the harm that they have caused him. They are fighting on both. It is time to hold them responsible.”); see also Carnival Cruise Lines, Inc. v. Rosania, 546 So. 2d 736, 737–38 (Fla. 3d DCA 1989); Mercury Ins. Co. of Florida v. Moreta, 957 So. 2d 1242, 1251 (Fla. 2d DCA 2007). 10. Motion to Strike or Limit Plaintiff’s Before-and-After Witnesses By this Motion, Defendants seek to strike any before or after witnesses as the Plaintiff has not filed a Witness & Exhibit List, or, in the alternative, limit the number of before-and-after witnesses Plaintiff may introduce at trial to one. The probative value of duplicative before-and-after testimony is substantially outweighed by considerations of the needless presentation of cumulative evidence and a waste of limited judicial resources. As such, the Defendants request the Court order Plaintiff to promptly identify which witness will be called to testify as a before- and after witness so as to avoid being surprised at trial. Fla. Stat. § 90.403 provides the balancing test for whether relevant evidence is admissible: relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. Fla. Stat. § 90.403 (2014). “It is permissible for the trial court to preclude a party from introducing cumulative testimony.” Probkevitz v. Velda Farms, LLC, 22 So.3d 609, 616 (Fla. 3d DCA 2009) citing Rhodes v. Asplundh Tree Expert Co., 528 So.2d 459, 460 (Fla. 3d DCA 1988). In order to determine whether the challenged evidence is cumulative, courts look at whether the evidence offers any additional information or if it is merely duplicative of testimony already received. Joseph F. Maimone Sec. & Investigations, Inc. v. Am. Exp. Travel Related Servs., Inc., 598 So.2d 272, 272 (Fla. 3d DCA 1992). Here, additional witnesses would offer little more than stating they observed Plaintiff’s demeanor and/or changes in her physical condition before and after the alleged accident. Individually, the testimony may be relevant; albeit minimally. However, when combined, multiple witnesses provide a chorus of harmonious testimony which has the effect of misleading the jury and affording undue weight to the testimony. In order to avoid this prejudice to the defense, Plaintiff should be limited to presenting one witness on the before-and-after issues. Moreover, to the extent these witnesses testify that Plaintiff appeared injured, depressed, or neurologically/cognitively deficient, this constitutes impermissible lay witness opinion testimony on areas requiring medical expertise such as neurology and psychology/psychiatry. Fla. Stat. § 90.701 forbids a lay witness from providing opinions on areas of specialized knowledge and experience. See § 90.701, Fla. Stat. (2010) (providing that under certain circumstances recited in the statute, a lay witness may provide opinion testimony when the “opinions and inferences do not require a special knowledge, skill, experience, or training”). 11. Exclude “Reptile” Theory Argument The Plaintiff should be prohibited from invoking the “Reptile” theory at trial. As discussed in greater detail below, this theory aims to inflame the passions and prejudices of the jury by inducing fear in an attempt to convince them a verdict for the Plaintiff will make the community, including the juror, safe or otherwise safer. Any effort on the part of the Plaintiff to advance a “Reptile” theory at trial is akin to a “Golden rule” or "conscious of the community" argument, which Florida courts have routinely found improper and inflammatory. See Bocher v. Glass, 874 So. 2d 701 (Fla. 1st DCA 2004) (“‘Golden rule’ arguments are improper because they depend upon inflaming the passions of the jury and inducing fear and self-interest.”). See also Norman v. Gloria Farms, Inc., 668 So. 2d 1016 (Fla.4th DCA 1996); Blue Grass Shows, Inc. v. Collins, 614 So. 2d 626 (Fla. 1st DCA 1993). The Reptile theory stems from Don Keenan and David Ball's book, Reptile: The 2009 Manual of The Plaintiff's Revolution. In essence, the thesis of this book is that jurors, as human beings, have reptilian brains. The reptile brain is the portion that houses basic instinctual behaviors such as aggression, dominance, and survival. These instincts are automatic and drive behavior and reactions without thought or reflection. When a danger is perceived, the reptile brain takes control in an attempt to maximize survival and minimize danger. The goal of the "Reptile" theory advanced in this book is to instill fear in the minds of jurors, to trigger this survival mode, and to compel the juror to act. As stated by Keenan and Ball, "when the Reptile sees a survival danger, she protects her genes by impelling the juror to protect himself and the community." Id. at 19. The Plaintiff should be prevented from appealing the jurors' “reptilian brains” by characterizing legal duties, laws, or practices within the industry as "safety rules" intended to prevent injury and protect the individual jurors, as well as the community. The Defendants anticipate the Plaintiff will attempt to convince the jury that a verdict against Defendants will make the community and juror safer, as it will prevent Defendants (and others similarly situated) from creating “danger” and/or “red flags” without regard to the actual legal duties owed. Instead of focusing on legal duties, the “Reptile” theory seeks to influence jurors by passion and emotion.1 The "Reptile" theory is no different than other impermissible "golden rule" or “conscience of the community” type arguments. See Collins, 614 So. 2d at 627 (finding the "range of what will be considered an impermissible 'conscience of the 1 As of the filing of this motion, http://reptilekeenanball.com/ touts the “Reptile” theory and approach as garnering $6,372,295,758.00 in jury verdicts and settlement. community' argument extends to all impassioned and prejudicial pleas intended to evoke a sense of community law through common duty and expectation."). As discussed above, the "Reptile" theory specifically implores attorneys to appeal to the jurors' own sense of self-protection, passion and prejudice, in order to persuade and prevail at trial. Such argument is an improper distraction from each juror's sworn duty to reach a fair, honest and just verdict, in accord with the facts and evidence presented at trial. Id. Accordingly, the "Reptile" theory and all related arguments (such as referring to an element of Plaintiff’s case as consistent with "fairness," "justice," or within a "safety rule," etc., in the context of the conscious of the community) must be excluded from trial, as such arguments serve no legitimate purpose and carry a substantial risk of imparting unfair prejudice and injustice upon the Defendants. See, Norman, 668 So. 2d at 1023 (stating that "inflammatory arguments made by counsel for either plaintiff or defendant will not be tolerated"); Bocher, 874 So. 2d at 703 (stating that “golden rule” arguments are improper because they depend upon inflaming the passions of the jury and inducing fear and self-interest). As this type of argument serves no legitimate purpose and seeks only to impassion and prejudice the jury as described above, Plaintiff must be prevented from advancing arguments and questions of this nature. Perper v. Edell, 44 So. 2d 78, 80 (Fla. 1949) (stating that "if the introduction of the evidence tends in actual operation to produce a confusion in the minds of the jurors in excess of the legitimate probative effect of such evidence—if it tends to obscure rather than illuminate the true issue before the jury—then such evidence should be excluded."); Fla.Stat. § 90.403. An Order in Limine upon the instant motion will prevent the risk that the jury will infer, by the Defendants’ objections, that it is attempting to hide or disguise matters otherwise useful. Bocher, 874 So. 2d at 704. 12. Exclude Evidence Related to Speculative Future Treatment In reviewing the Plaintiff’s medical records, it appears she has not received additional treatment since 2021. In addition, due to the Plaintiff’s failure to produce any updated records, it is uncertain whether she will require future medical care. Further, during her deposition, she testified that she had pre-existing lumbar injuries for which she received minimal treatment. “In a personal injury action in which the plaintiff seeks damages for medical expenses, ‘only medical expenses which are reasonably certain to be incurred in the future are recoverable.’” Truelove v. Blount, 954 So.2d 1284 (Fla. 2d DCA 2007) (citing Loftin v. Wilson, 67 So.2d 185 (Fla. 1953)). “[A] recovery of future medical expenses cannot be grounded on the mere ‘possibility’ that certain treatment ‘might’ be obtained in the future.” White v. Westlund, 624 So.2d 1148 (Fla. 4th DCA 1993). In order to recover future damages, a claimant is required to prove that future economic damages are reasonably certain to occur. Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89 (Fla. 1995). Under Florida law, the Plaintiff must establish within a reasonable degree of certainty that she will undergo future medical treatment for the injuries caused by the Defendants’ negligence. Shearon v. Sullivan, 821 So.2d 1222, 1224 (Fla. 1st DCA 2002); see also Pruitt v. Perez-Gervert, 41 So. 3d 286 (Fla. 2nd DCA 2010), review dismissed, 2010 WL 4261407 (Fla. 2010). This “reasonable certainty” standard provides that “. . . a recovery of future medical expenses cannot be grounded on the mere possibility that certain treatment might be obtained.” Id. The “reasonable certainty” standard requires Plaintiff to prove that he will, more probably than not, need these medical services in the future. Grubbs at 556. A plaintiff is not entitled to damages for future medical expenses which are not supported by the evidence. Garriga v. Guerra, 753 So.2d 146 (Fla. 3d DCA 2000). In Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 556 (Fla. 3d DCA 2000), the Court addressed the award of damages by a trial court to a plaintiff for a future hip replacement. The Court noted the burden upon the plaintiff to prove that future medical expenses will more probably than not be incurred, and that a plaintiff’s burden may only be met with “competent substantial evidence.” Grubbs at 556. In the present matter, the Plaintiff has not provided any competent substantial evidence that any future relevant treatment is more likely than not to occur. 13. Exclude Evidence of Lost Wages or Loss of Earning Capacity Within the Complaint, the Plaintiff has alleged that her damages include lost wages and loss of future earning capacity. However, during her deposition, the Plaintiff denied she was making a demand for any wage-related damages. As such, the Plaintiff should not be permitted to present evidence related to these claims. Moreover, in a claim for lost wages, some form of documentary evidence tending to prove the wage loss is virtually essential. See General Repair Service, Inc. v. McKenzie, 577 So.2d 619 (Fla. 1st DCA 1991). The party seeking damages must present evidence to a jury to justify an award of damages in a definite amount. Smith at 129; United Steel & Strip Corp. v. Monex Corp., 310 So.2d 339 (Fla. 3d DCA 1975)(holding that “[d]amages are recoverable only to the extent that the evidence affords a sufficient basis for estimating an amount in money with reasonable certainty.”) Since the Plaintiff has denied lost wages or loss of future earning and has not presented any evidence as to those damages, the Plaintiff should not be permitted to pursue these claims. 14. Plaintiff Should Be Restricted to Only Actual Amounts Billed The law in Florida requires that all medical and hospital bills offered into evidence at trial for past medical treatment of a plaintiff shall reflect the actual amount that the health care providers agreed to accept in payment, or wrote off, rather than the full amount said health care providers billed. Plaintiff shall not be allowed to make any statements or introduce into evidence as compensatory damages any amounts of medical bills for which the Plaintiff never incurred any legal liability to pay. Goble v. Frohman, 901 So.2d 830 (Fla. 2005); Cooperative Leasing, Inv. v. Johnson, 872 So.2d 596 (Fla. 2d DCA 2004). Likewise, the Plaintiff should be prohibited from referring to or attempting to introduce into evidence the full amount of any hospital or medical bill incurred by Plaintiff that were paid by Medicaid or Medicare, as a result of the subject accident, at the trial in this matter. Under the holding in Cooperative Leasing, Inc. v. Johnson, 872 So.2d 959 (2d DCA 2004), Plaintiff is only permitted to recover the amount which a Medicaid or Medicare provider accepted in payment as compensatory damages. 15. Subsequent Remedial Measures The presentation of any evidence or testimony regarding any changes to the Defendants’ premises after the alleged incident involving the Plaintiff constitutes a “subsequent remedial measure” which should not be put before the jury. Florida Statutes § 90.407 provides “evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence, the existence of a product defect, or culpable conduct in connection with the event.” Evidence of subsequent remedial measures being inadmissible is based upon sound public policy. Walt Disney World Company v. Blalock, 640 So. 2d 1156 (Fla. 1st DCA 1994). The admission of evidence of subsequent remedial measures is sufficient to trigger the court's discretion in ordering a new trial. Jordan v. School Board, 531 So 2d 978 (Fla. 4th DCA 1988); McIntosh v. Flagler Title Co., 483 So.2d 50 (Fla. 4th DCA 1986). 16. Reference to Defendants Involvement in Prior Lawsuits Defendants hereby move in limine to exclude any reference to its involvement in lawsuits before or after the incident. The Defendants are a large, multi-state corporation with convenience store locations throughout United States. Any such reference would be completely irrelevant to the issues in this lawsuit, and has the potential to be highly prejudicial while having no probative value. 17. References to Defendants’ Counsel’s Law Firm. Defendants hereby moves in limine to preclude any reference, argument or evidence at trial concerning defense counsel’s law firm, the law firm being “insurance defense lawyers”, “hired guns” or “corporate lawyers” or the like. Any such reference would be completely irrelevant to the issues in this lawsuit, and otherwise would be made solely to disparage defense counsel in the eyes of the jury and inflame the jury. 18. Lay Witness testimony as to Causation of Injuries Defendants hereby move in limine to preclude the testimony of any lay witnesses as to the issue of causation for the Plaintiff’s injuries and subsequent treatment. This type of questioning of a lay witness is improper because it calls for the opinion of a qualified expert. If a witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are based on the perception of the witness, (b) are not misleading to the trier of fact, and (c) do not require special knowledge, skill, experience or training. Fla. Stat. 90.701. An opinion about injury causation most certainly requires special knowledge, skill, experience, and training. In Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552, 556 (Fla. 3d DCA 2000), the court addresses the award of damages by a trial court to a plaintiff for a future hip replacement. The court noted the burden upon the plaintiff to prove that future medical expenses will more probably than not be incurred, and that a plaintiff’s burden may only be met with “competent substantial evidence.” Grubbs at 556. The first component of a claim for future medical expenses is evidence that the future medical expenses are reasonably certain to be incurred in the future. Truelove at 1287. In support of the foregoing, the Defendants state that the purpose of a Motion in Limine is to exclude irrelevant and immaterial evidence or to exclude evidence when its probative value is outweighed by danger of unfair prejudice. See Devoe v. Western Auto Supply Co., 537 So. 2d 1988 (Fla. 2d DCA 1989). Additionally, the foregoing would not be admissible upon proper objection by these Defendants at trial and, therefore, a Pre-Trial Order barring the same from being brought up at trial is appropriate and exhibit may serve the additional benefit of apprising the pro se Plaintiff as to what arguments and evidence are appropriate at trial. WHEREFORE, the Defendants respectfully request this Honorable Court grant its Motions in Limine as set forth above. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of November a true copy of the foregoing has been electronically filed with the Clerk of Court using the Florida E-Filing Portal which will electronically serve a copy of the foregoing via e-mail to all involved parties. Respectfully submitted, BOYD RICHARDS PARKER & COLONNELLI, P.L. Counsel for Defendant: Speedway LLC 400 N. Ashley Drive, Suite 1150 Tampa, FL 33602 Tel: 813-223-6021; Fax: 813-223-6024 By: _ /s/ Brian J. Durham Brian J. Durham- FL Bar No.: 93746 bdurham@boydlawgroup.com afreire@boydlawgroup.com kbarberan@boydlawgroup.com servicetpa@boydlawgroup.com