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Filing # E-Filed 01/29/2024 09:41:11AM
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA
TERRIE BRENSINGER,
Plaintiff,
Vs.
Case no.: 2022 31789 CICI
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
MOTIONS IN LIMINE
Plaintiff, TERME BRENSINGER, by and through undersigned counsel, hereby submits this
Motion in Limine to preclude parties, attorneys and witnesses from introducing any evidence,
testimony, comment or argument, directly or indirectly, during the course of this trial:
1. Any mention or reference to an "insurance crisis". Davidoff v. Segret, 551 So.2d 1274
(Fla. 4th DCA 1989) (Comments during closing argument of personal injury action, regarding
"insurance crisis" situation was an improper attempt to appeal to conscience of community, and
warranted new trial).
Granted Denied Reserved Agreed Modified
2. Plaintiff's failure to wear or use operational seatbelt because there is no evidence to
establish this fact and the Defendant has not raised this as an affirmative defense of comparative
negligence. Ridley v. Safety Kleen, 693 So.2d 934 (Fla. 1997).
Granted Denied Reserved Agreed Modified
3. Any possible Fabre Defendants, since the Defendant has not disclosed any.
Granted Denied Reserved Agreed Modified
4. Any mention that Plaintiff is represented by Morgan & Morgan, P.A. or any reference
to Morgan & Morgan or to advertising attorneys. Such comment serves only to inflame the jury, is
irrelevant and prejudicial, and puts the credibility of the lawyers of Morgan & Morgan at issue with
the jury. The lawyers from Morgan & Morgan are not witnesses in this case, thus their credibility is
not at issue.
Granted Denied Reserved Agreed Modified
5. Prior retentions of any of Defendants expert witnesses by other attorneys in Morgan
& Morgan, P.A. Unless Plaintiff opens the door on cross-examination, defense counsel would
essentially be attempting to use the personal opinion of other attorneys within Morgan & Morgan,
P.A. to bolster the credibility of the witness.
Granted Denied Reserved Agreed Modified
6. Any mention, reference, questioning, or evidence as to when the Plaintiff contacted
or hired an attorney. Such evidence is irrelevant, prejudicial and would only be used to prove
Plaintiff s litigiousness. Watson v. Builders Square, 563 So.2d 721 (Fla.4th DCA 1990). Zabner v.
Howard Johnsons, Inc., 227 So.2d 543 (Fla.4th DCA 1969) (reversible error to admit evidence of
fifteen prior lawsuits).
Granted Denied Reserved Agreed Modified
7. Any prior settlement negotiations, discussions, compromise offers between the
parties, that the Plaintiff settled with a tortfeasor or that a Defendant in this case was dismissed. Fla.
Stat. § 90.408; Fla. Stat. § 768.401; Saleeby v. Rocky Elson Construction, Inc., 3 So.3d 1078, (Fla.
2009) (Sections 768.041(3) and 90.408 expressly prohibits the admission at trial of evidence of
settlement and that a defendant has been dismissed from suit. No exceptions for impeachment
purposes; Allstate Insur. Co. v. Campbell, 842 So. 2d 1031 (Fla 2nd DCA 2003) (trial court granted
plaintiff s motion in limine in UIM case to preclude admission of settlement with tortfeasor).
Granted Denied Reserved Agreed Modified
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8. That any of the Plaintiffs' treating physicians have committed medical malpractice
or medical negligence, as the Defendant is responsible for damages resulting from negligent
medical treatment rendered by reason of Defendant's negligence. Stuart v. Hertz, 351 So.2d 703
(Fla. 1977); Farina v. Zann, 609 So.2d 629 (Fla.4th DCA 1992).
Granted Denied Reserved Agreed Modified
9. Any testimony of Defendant's medical expert or other witness on the
inappropriateness of surgery or treatment performed by Plaintiff s treating physician or the lack of
skill or judgment of the treating physician. Dungan v. Ford, 632 So.2d 159 (Fla.lst DCA 1994);
Pedro v. Baber, 83 So. 3d 912 (Fla. 2nd DCA 2012).
Granted Denied Reserved Agreed Modified
10. No statement or comment by the defense experts or any witness regarding the
truthfulness or credibility of the Plaintiff or other witnesses. Enterprise Leasing Co. v. Sosa, 907
So2d 1239 (Fla. 3rd DCA 2005 )( not error to prohibit Defendant's expert witness from commenting
on the sufficiency or credibility of personal representative's evidence, speaking about such
evidence, and commenting on the weight and sufficiency of personal representative's testimony.)
Whitfield v. State, 549 So.2d 1202 (Fla. 3rd DCA 1989) (not a proper method of impeachment for one
witness to offer his personal view on the credibility of another witness); Boatwright v. State, 452
So.2d 666 (Fla.4th DCA 1984) (it was an invasion of the jury's exclusive province for one witness to
offer his personal views on credibility of a fellow witness).
Granted Denied Reserved Agreed Modified
11. Any reference to authoritative texts, papers, studies, publications, treaties, or
similar authority authored by the defense expert or others in an attempt to bolster or otherwise
support the defense expert' s opinion. Costanzo v. Agency Rent-A-Car, Inc., 560 So.2d 265 (4th DCA
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1990); In the Interest of S.E. v. D.W. and TE, 946 So2d 620 (Fla. 2nd DCA 2007) (Findings from the
Asymptomatic Carotid Atherosclerosis Study (ACAS) served to impermissibly bolster the
credibility of patient's experts and diminish the credibility of doctor's expert's opinion on the
ultimate issue of malpractice case, and thus ACAS was inadmissible at trial).
Granted Denied Reserved Agreed Modified
12. No comment by the defense experts on the credibility, accuracy, or reputation of the
opinions or character of the Plaintiffs experts. Carver v. Orange County, 444 So.2d 452 (5th DCA
1983)( It was improper to impeach expert witness by eliciting from another expert witness what
he thinks of that expert) Ecker v. National Roofing of Miami, 201 So.2d 589 (3d DCA
967)(Testimony of one expert witness should not be impeached by testimony of a second expert
witness that reputation of first expert witness for ability is not good).
Granted Denied Reserved Agreed Modified
13. The defense CME physician should not be permitted to change any of his opinions
or to state additional opinions not contained in the CME report or given at deposition. Fla. R. Civ.
P. Rule 1.360(b). SuarezBurgos and Geico v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999); rev.
denied 767 So.2d 461 (Fla.2000) (Not error to grant new trial when trial was the first occasion on
which expert had unequivocally stated that plaintiff had suffered no permanent injury, and expert
admitted that some of his conclusions were based on material that he had seen just hours before
testifying). Office Depot, Inc. v. Miller, 584 So.2d 587 (4th DCA 1991) (Failure of defendant to
disclose substantial reversal of its expert's opinion prejudiced plaintiff and warranted new trial).
Granted Denied Reserved Agreed Modified
14. Testimony by the compulsory medical examination doctor regarding the
reasonableness of any of the medical bills. Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994).
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Granted Denied Reserved Agreed Modified
15. Any motor vehicle collisions in which Plaintiff was involved before or after the
complained of incident. There is no evidence that those occurrences are causally connected to the
complained incident or injuries. Such evidence is not relevant to any issue and any probative value
is substantially outweighed by its prejudicial effect and is an attempt to impeach the Plaintiff on
facts that are not material. Fla. Stat. § 90.403 & Fla. Stat.§90.608 (5). Further, this evidence would
be an attempt to imply that the Plaintiff is a "bad driver" which is improper impeachment of the
Plaintiff's character by the use of specific instances of their prior misconduct which is improper
impeachment of the witness' credibility and character in a manner not permitted by the Florida
Evidence Code. Fla. Stat.§§
Granted Denied Reserved Agreed Modified
16. That Plaintiff has received, will receive, or may be entitled to receive benefits of any
kind or character from any collateral source, [Gormley v. GTE Products, 587 So.2d 455 (Fla. 1991)]
including, but not limited to the following:
a. Benefits from collateral insurance coverage; Sheffield v. Superior Insurance,
800 So.2d 197 (Fla. 2001);
b. Services furnished without charge;
c. Medicare benefits; Winston Towers Associates v. DeCarlo, 481 So.2d 1261
(Fla. 3d DCA 1986);
d. Medicaid benefits; Velilla v. VIP Care Pavillion Ltd., 861 So.2d 69 (Fla. 4th
DCA 2003)
e. Welfare, food stamps or other governmental or charitable benefits; Williams
v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975); Parker v. Hoppock, 695
So.2d 424 (Fla. 4th DCA 1997);
f. Worker's compensation benefits; Cook v. Eney, 277 So.2d 848 (Fla. 3rd DCA
1973). Sosa v. Knight-Ridder Newspaper 435 So.2d 821 (Fla. 1983); and
Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982); and
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Past and future social security benefits, or social security disability benefits;
Cook v. Eney, 277 So.2d 848 (Fla. 3rd DCA 1973).
Granted Denied Reserved Agreed Modified
17. Any mention, reference, or comment of Plaintiffs failure to call a witness equally
available to both parties. Lowder v. Economic Opportunity Health Center, Inc., 680 So.2d 1133
(Fla. 3rd DCA 1996).
Granted Denied Reserved Agreed Modified
18. The arrest or conviction of the Plaintiff or a witness for a criminal offense, unless
the arrest resulted in a conviction and the offense convicted of was punishable by imprisonment in
excess of 1 year, involved dishonesty or false statement and the conviction was not so remote in
time as to have no bearing on the character of the witness. Fla. Stat § 90.610; Aaron v. State, 345
So.2d 641, n.10 (Fla. 1977).
Granted Denied Reserved Agreed Modified
19. That Plaintiff filed for divorce, was separated from her spouse or any other evidence
of marital discord between the Plaintiff and her spouse. Since there is no claim for loss of
consortium, such evidence is not relevant to any issue and any probative value of that evidence is
substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403.
Granted Denied Reserved Agreed Modified
20. Any mention, reference, questioning or evidence as to the financial status of the
Plaintiff, including but not limited to her purchase of a new house, new cars, incorrect spending,
or whether he/she is in a better financial position now than prior to the accident. . Sossa v. Newman,
647 So.2d 1018 (Fla. 4th DCA 1994) (In Florida, the general rule is that during trial no reference
should be made to the wealth or poverty of a party, nor should the financial status of one party be
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contrasted with the other). Hurtado v Desouza, 166 So.2d 831 (Fla. 4th DCA 2015; Batlemento v
Dove Fountain, Inc., 593 So.2d 234, 241 (Fla. 5th DCA 1991).
Granted Denied Reserved Agreed Modified
21. Any reference by Defendant's experts or other witnesses that the Plaintiff had the
last clear chance to avoid the accident. The "Last Clear Chance Doctrine" has no application in
comparative negligence cases. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).
Granted Denied Reserved Agreed Modified
22. That Defendant was a good driving record or was a safe driver before the
complained of incident. Such evidence is improper character evidence, is irrelevant as to how the
Defendant drove the vehicle on the date and time in question and the probative value of such
evidence is substantially outweighed by the danger of unfair prejudice. Dade County v. Carucci,
349 So.2d 734 (Fla. 3rd DCA 1977) (improper to admit testimony as to prior driving record of
county employee who was driving bus in which plaintiff was a passenger at time of accident).
Granted Denied Reserved Agreed Modified
23. Any recovery by the Plaintiff will not be subject to federal income tax or any other
form of taxation. Good Samaritan Hospital v. Saylor, 495 So.2d 782 (Fla. 4th DCA 1986); Comfort
Makers v. Kenton, 515 So.2d 1384 (Fla. 5th DCA 1987).
Granted Denied Reserved Agreed Modified
24. Any statements or comment by defense attorney to the jury why certain witnesses
did not testify or any reference to what uncalled witnesses would have testified to if called. Riggins
v. Mariner Boatworks, Inc., 545 So.2d 430 (Fla. 2d DCA 1989); City Provisioners, Inc., v.
Anderson, 578 So.2d 855 (Fla. 5th DCA 1991).
Granted Denied Reserved Agreed Modified
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25. Any statement or comment by defense attorney concerning matters not in evidence.
Borden, Inc. v. Young, 479 So.2d 850 (Fla. 3rd DCA 1985) (improper for attorney to assert his
personal knowledge of nefarious activities supposedly engaged in by large corporate defendant
which were not only not in evidence but did not in fact exist).
Granted Denied Reserved Agreed Modified
26. Any statement or comment of defense attorney's personal belief in his client or the
justice of his cause. Miami Coin-O-Wash, Inc., v. McGough, 195 So.2d 227 (Fla. 3rd DCA 1967).
Granted Denied Reserved Agreed Modified
27. Any statement or comment of the defense attorney's personal beliefs concerning
the evidence, including a witness' credibility or his knowledge of the evidence. Seguin v. Hauser
Motor Co., 350 So.2d 1089 (Fla. 4th DCA 1977); (Lawyer's personal opinion as to credibility of
witness is not proper subject for argument to trier of fact); Moore v. Taylor Concrete & Supply
Co., 553 So.2d 787 (Fla. 1 sy DCA 1989) (Attorney's expression of his personal opinion as to
credibility of witness, or of his personal knowledge of facts in case, is fundamentally improper);
Kaas v. Atlas Chemical Co., 623 So.2d 525 (Fla. 3rd DCA 1993) (counsel committed fundamental
error by repeatedly arguing that defense expert witness was a liar); S.H. Inv. & Dev. Corp. v.
Kincaid, 495 So.2d 768 (Fla. 5th DCA 1986) (Final argument in which counsel stated he knew
certain evidence and statements presented by opposing parties were not true, that his client testified
truly, honestly and candidly, and in which counsel stated his opinion as to veracity of various
adverse witnesses mandated new trial).
Granted Denied Reserved Agreed Modified
28. Any statement that the Plaintiffs' attorney always asks for more money than they
expect to receive. Hartford Accident Indemnity Co. v. Ocha, 472 So.2d 1338 (Fla. 4th DCA 1985);
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Donaldson v. Cenac, 675 So2d 228 (Fla. l' DCA 1996) (Statement by defense counsel, in closing
argument of personal injury action, that it's not uncommon for plaintiff s attorneys to ask for some
ridiculous amount of damages "50 times what they really do expect to get" was improper).
Granted Denied Reserved Agreed Modified
29. Any reference to the Plaintiffs' expert witnesses as "hired guns". Budget Rent-A-
Car Systems, Inc. v. Jana, 600 So.2d 466 (Fla. 4th DCA 1992). (When an attorney, in the opening
statement to a jury, begins conjuring up images of the gunfighter shooting it out in the street, and
when this type of "argument" is prevalent in a trial, the stature of the judicial system is lowered
considerably from where we think it should be).
Granted Denied Reserved Agreed Modified
30. That defense experts not attempt to introduce inadmissible hearsay evidence. It is
improper for an expert witness to relate hearsay statements or the contents of hearsay documents
to the jury or to otherwise serve as a conduit for the purpose of placing inadmissible evidence
before the jury. Ervin v. Todd, 699 So.2d 275 (Fla. 5th DCA 1997) (permitting defense expert to
testify concerning content of medical records that had been ruled inadmissible was prejudicial
error); Maklakiewicz v. Berton, 652 So.2d 1208 (Fla. 3rd DCA 1995) (trial court abused its
discretion in admitting testimony of police officer testifying as accident reconstruction expert
where officer's testimony was based on inadmissible hearsay evidence).
Granted Denied Reserved Agreed Modified
31. Any improper argument or comment that attempts to appeal to the conscious of the
jury on matters not relevant or probative of the evidence, such as the "filing of frivolous lawsuits by
the trial attorneys is one of the major ills of our society" or "our system has created a situation that
every time we do something if it does not turn out the way we thought then we sue"; seeking money
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damages for personal injuries shows the "deterioration of our society"; or "lawsuits constitute one of
the major ills of our society.", or the problem of overcrowded courtrooms. Bell South Human
Resources Administration, Inc. v. Colatarci & Hylton, 641 So.2d 427 (Fla. 4th DCA 1994); Stokes v.
Wet V\T Wild, 523 So.2d 181 (Fla. 5th DCA 1988) (reference to overcrowded courtrooms was attempt
to appeal to conscience of community in matters far afield from evidence admitted).
Granted Denied Reserved Agreed Modified
32. The financial burden or other consequences which a verdict for the Plaintiff would
have upon the Defendant. Padrino v. Resnick, 615 So.2d 698 (Fla.3d DCA 1992) (closing
argument which asked jury to consider financial burden which a verdict for plaintiff would have
on defendant was improper and prejudicial); Linzy v. Rayburn, 58 So.3d 424 (Fla.lst DCA 2011)
(defense counsel's closing statement, that owner of business being sued would be solely
responsible for any award of damages, was improper and warranted new trial).
Granted Denied Reserved Agreed Modified
33. Any questioning, comment or reference that Plaintiff s counsel referred Plaintiff to
any doctor. Burt v. GEICO, 603 So.2d 125 (Fla. 2nd DCA 1999) (Attorney-client privilege precluded
order compelling personal injury plaintiff to answer deposition question as to whether counsel
referred her to particular physician).
Granted Denied Reserved Agreed Modified
34. Any prior injuries or preexisting conditions of the Plaintiff which are unrelated to
the injuries or damages claimed or from which Plaintiff made a full recovery. Except for
aggravation of preexisting condition or activation of a latent condition, any other prior injuries or
preexisting conditions of the Plaintiff are not relevant, and any probative value of that evidence is
substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403.
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Granted Denied Reserved Agreed Modified
35. Plaintiff had prior claims or lawsuits. There is no evidence that those claims or
lawsuits are causally connected to the complained of occurrence or injuries. The only use for such
evidence would be to attempt to discredit and impeach the Plaintiff on the basis that he/she is
litigious. Such evidence is not relevant to any issue and any probative value of that evidence is
substantially outweighed by its prejudicial effect. Zabner v. Howard Johnsons Inc., 227 So.2d 543
(Fla.4th DCA 1969) (Introduction of the element of fifteen other lawsuits could have had no effect
other than to try to prejudice the jury against the plaintiff); Colvin v. Williams, 564 So.2d 1249 (
Fla. 4th DCA 1990) (Patient's prior personal injury litigation was not relevant to issues in patient's
personal injury suit for damages arising out of automobile accident.).
Granted Denied Reserved Agreed Modified
36. The amount of money recovered by settlement or judgment by the Plaintiff in any
prior claim or lawsuit. Leslie v. Higgason, 779 So.2d 470 (Fla. 2d DCA 2000) (Admission of
amount of settlement from an accident that occurred eight years before accident at issue was
reversible error); State Farm Fire and Casualty v. Pettigrew, 884 So.2d 191 (Fla. 4th DCA 2004)
(Amount of a settlement or judgment for a prior injury is inadmissible because it is clearly
irrelevant to the issues being tried).
Granted Denied Reserved Agreed Modified
37. That the Defendant or any other drivers or occupants of vehicles involved in the
complained of occurrence were not injured or sustained minor injuries. Any probative value of
that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403.
Granted Denied Reserved Agreed Modified
38. Plaintiff s drug use or alcohol abuse. Such evidence is irrelevant to any issue since
there is no evidence that said usage caused or aggravated Plaintiff s complained of injuries or that
Plaintiff had used drugs or alcohol at time of the complained of incident or that prior drug or
alcohol use has affected her ability to observe, remember and recount. Also, it would be improper
impeachment by prior acts of misconduct. Edwards v. State, 548 So.2d 656 (Fla. 1989); Edwards
v. Orkin Exterminating Co., Inc., 718 So.2d 881, 883 (Fla. 3rd DCA 1998) (jury was prejudiced by
admission of irrelevant evidence that Plaintiff had been an alcoholic and drug user.).
Granted Denied Reserved Agreed Modified
39. The traffic crash report or any part thereof, including but not limited to Plaintiffs
"injury severity", Plaintiff s physical condition, that Plaintiff failed to complain of injury to the
investigating police officer, or any other statements made by the Plaintiff to the investigating officer
for the purpos of completing the traffic crash report. No "statement made to a law enforcement officer
for the purpose of completing a crash report . . .shall be used as evidence in any trial. . ." Fla. Stat. §
316.066(4); Price v. Rizzuti, 661 So.2d 97 (Fla. 4th DCA 1995) (statements made to an investigating
police officer by a participant in the accident are confidential and not admissible); Thomas v.
Gottleib, 520 So.2d 622 (Fla.4th DCA 1988) (Motorist's failure to complain to investigating officer
of injury at accident scene was privileged, and officer thus could not testify that motorist made no
complaints of injury).
Granted Denied Reserved Agreed Modified
40. That the investigating police officer issued a traffic citation, did not issue a traffic
citation or the Plaintiff admitted the traffic infraction and paid a fine. Fla. Stat. § 318.14 (4ab);
Galgano v. Buchnan, 783 So.2d 302, (Fla. 4th DCA 2001) (admission of defendant's plea of guilty
to non-criminal traffic citation following the accident by paying fine via mail, as well as Plaintiff s
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questioning of Defendant and the investigating officer on whether motorist received a citation, was
prejudicial error); Budget Rent a Car v. Jana, 600 So.2d 466 (Fla. 4th DCA 1992) (questions
regarding traffic citations issued at scene of collision should have resulted in mistrial); Vantan
Industries, Inc. v. Ryder Truck Rental, Inc. 890 So.2d 421 (Fla. l' DCA 2004) (Police officer's
improper statement that no traffic citations were issued was sufficiently prejudicial to warrant new
trial.).
Granted Denied Reserved Agreed Modified
41. The Plaintiff s previous driving record. State v. Hubbard, 751 So.2d 552 (Fla. 1999)
(The fact that Hubbard had his driving privileges suspended in the past clearly was of slight
probative value, which was substantially outweighed by the danger of unfair prejudice).
Granted Denied Reserved Agreed Modified
42. If the Defendant's counsel or any witness argued that Plaintiff never returned to a
medical care provider after the last visit, Plaintiff is entitled to introduce evidence as the reason
she did not seek medical care was due to his/her inability to pay for future medical treatment
and/or other personal reasons. Sousa v. Newman, 647 So. 2d 1018 (Fla. 4th DCA 1994).
Granted Denied Reserved Agreed Modified
43. Plaintiff s past earnings. The Plaintiff has withdrawn her lost earning and loss of
future earning capacity claims as a result of the subject accident. Any attempted impeachment of
Plaintiff based on past earnings would be irrelevant and impeachment on a collateral
issue. Nationwide Mutual Fire Insurance Co., v. Bruscarino, 982 So.2d 753 (Fla. 4th DCA 2008)
(Could not impeach Plaintiff s credibility with evidence of a discrepancy between her deposition
testimony and tax returns, where Plaintiff dropped her claim for lost wages on the first day of
trial).
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Granted Denied Reserved Agreed Modified
44. That it was wrong or improper for Plaintiff's attorney to meet with a witness to
discuss what testimony he or she might give if called to testify at deposition or trial and thereby
attempt to discredit that witness. It is perfectly proper for an attorney to meet with a witness for
this purpose. Florida Standard Criminal Instruction 3.10(7); Kingery v. State, 523 So2d 1199 (Fla.
l' DCA 1988) (It is undisputed that attorney may talk to witness about testimony witness will
give, and that witness' credibility should not be challenged on basis of discussion).
Granted Denied Reserved Agreed Modified
45. Any mention, reference, questioning or evidence that Defendant has served in
and/or sustained an injury while a member of the United States Armed Forces. Any mention or
reference to this only serves to gather sympathy for the Defendant. Such evidence is improper
character evidence, not relevant to any issue and any possible probative value of that evidence is
substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403.
Granted Denied Reserved Agreed Modified
46. Any impeachment of the Plaintiff or witnesses by the use of specific instances of
their prior misconduct. This is improper impeachment of the witness' credibility and character in
a manner not permitted by the Florida Evidence Code. Fla. Stat.§§ Farinas v. State,
569 So2d 425 (Fla.1990) (witness' credibility could not be impeached by cross-examination
concerning prior unethical conduct); Dempsey v. Shell Oil Co., 589 So2d 373 (Fla. 4th DCA
1991)(error for trial court to permit plaintiff to be impeached with testimony that she was
involuntarily separated from her prior job due to carelessness) Doremus v. Florida Energy Systems
of South Florida, Inc., 634 So.2d 1106 (Fla. 4th DCA 1994)(error to impeach using
misrepresentation on employment application of status of military discharge) DeSantis v.
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Acevedo, 528 So.2d 461 (Fla.3d DCA 1988)(error to allow impeachment based on evidence of
dishonesty as policeman) Laffinan v. Sherrod, 565 So.2d 760, 762 (Fla. 3rd DCA 1990)(error to
admit evidence that Plaintiff had been confined to detention center after he had recovered from
injuries).
Granted Denied Reserved Agreed Modified
47. Any evidence of Plaintiff s sexual preference. Roby v. Kingsley, 492 So2d 789 (Fla.
l' DCA 1986).
Granted Denied Reserved Agreed Modified
48. The defense expert's CME report should not be admitted into evidence. It was
prepared for the purpose of litigation and is not a business record. McElroy v. Perry, 753 So.2d
121 (Fla. 2nd DCA 2000).
Granted Denied Reserved Agreed Modified
49. Any reference or suggestion to the effect that "money won't undo the injury and
damage the plaintiff may have sustained", because such a suggestion is an improper appeal for
jury sympathy toward Defendant and invites the jury to disregard it's duty to apply the legal
measure of damages which the evidence shows have been caused by Defendant's misconduct and
instead to base a verdict on improper considerations.
Granted Denied Reserved Agreed Modified
50. Any reference or suggestion that Defendant is sorry or regrets the occurrence in
question, because such a suggestion is an improper appeal for jury sympathy toward Defendant
and invites the jury to disregard it's duty to apply the legal measure of damages by awarding such
damages as the evidence shows have been caused by such defendant's misconduct and base a
verdict on improper considerations.
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Granted Denied Reserved Agreed Modified
51. Any reference or suggestion as to the birth of any of plaintiffs children out of
wedlock or the fact that plaintiffs children may have different fathers/mothers. Such evidence is
improper impeachment by use of specific acts of misconduct, not relevant to any issue and any
probative value of that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. §
90.403.
Granted Denied Reserved Agreed Modified
52. Any reference or suggestion that the plaintiff is or has ever lived with someone out
of wedlock. Such evidence is improper impeachment by use of specific acts of misconduct, not
relevant to any issue and any probative value of that evidence is substantially outweighed by its
prejudicial effect. Fla. Stat. § 90.403.
Granted Denied Reserved Agreed Modified
53. Any reference or suggestion to the effect that if the Plaintiff has surgery her
physical condition would improve. The plaintiff does not have a duty to mitigate her damage and
undergo such a surgery. It is performed under general anesthesia, may or may not improve
Plaintiff s condition, will subject Plaintiff to great pain and a long recovery. The Plaintiff s
decision to forego the surgery is reasonable given its risks and uncertainties. Ballard & Ballard v.
Pelaia, 73 So2d. 840 (Fla. 1954); Cline v. United States, 270 F. Supp. 247 (S.D. Fla. 1967).
Granted Denied Reserved Agreed Modified
54. Any records prejudicial to Plaintiff which were obtained by Defendant pursuant to
Rule 1.351 Fla.R.Civ.P. or by signed authorization, copies of which were not produced to Plaintiff
during discovery in violation of Rule 1.351(e) Fla.R.Civ.P.
Granted Denied Reserved Agreed Modified
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished to counsel of record
via the Florida e-portal and/or e-mail to Iniv Gabay, Esq. Jonathan Diocares, Esq. and Emma Keller,
Esq.„ Quintairos, Prieto, Wood & Boyer, P.A., 2400 East Commercial Blvd., Suite 520, Ft.
Lauderdale, FL 33308, iniv. gab ay@qpwb1aw.com; j onathan. di ocares@qpwb1aw.com;
emma.keller@qpwblaw.com; igabay.pleadings@qpwblaw.com; marie.cesar@qpwblaw.com;
breanna.walls@qpwblaw.com; anthony.rangel@qpwblaw.com;, on this 29th day
of January, 2024.
/s/Thomas Caldwell, Esq.
Thomas Caldwell, Esq.
Florida Bar Number: 996513
Attorneysfor Plaintiff
444 Seabreeze Boulevard, Suite 100
Daytona Beach, FL 32118
Telephone: (386) 562-9274
Facsimile: (386) 562-9275
tcaldwell@forthepeople.com
sgossett@forthepeople.com
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Filing # E-Filed 01/29/2024 09:41:11AM IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, FLORIDA TERRIE BRENSINGER, Plaintiff, Vs. Case no.: 2022 31789 CICI STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. MOTIONS IN LIMINE Plaintiff, TERME BRENSINGER, by and through undersigned counsel, hereby submits this Motion in Limine to preclude parties, attorneys and witnesses from introducing any evidence, testimony, comment or argument, directly or indirectly, during the course of this trial: 1. Any mention or reference to an "insurance crisis". Davidoff v. Segret, 551 So.2d 1274 (Fla. 4th DCA 1989) (Comments during closing argument of personal injury action, regarding "insurance crisis" situation was an improper attempt to appeal to conscience of community, and warranted new trial). Granted Denied Reserved Agreed Modified 2. Plaintiff's failure to wear or use operational seatbelt because there is no evidence to establish this fact and the Defendant has not raised this as an affirmative defense of comparative negligence. Ridley v. Safety Kleen, 693 So.2d 934 (Fla. 1997). Granted Denied Reserved Agreed Modified 3. Any possible Fabre Defendants, since the Defendant has not disclosed any. Granted Denied Reserved Agreed Modified 4. Any mention that Plaintiff is represented by Morgan & Morgan, P.A. or any reference to Morgan & Morgan or to advertising attorneys. Such comment serves only to inflame the jury, is irrelevant and prejudicial, and puts the credibility of the lawyers of Morgan & Morgan at issue with the jury. The lawyers from Morgan & Morgan are not witnesses in this case, thus their credibility is not at issue. Granted Denied Reserved Agreed Modified 5. Prior retentions of any of Defendants expert witnesses by other attorneys in Morgan & Morgan, P.A. Unless Plaintiff opens the door on cross-examination, defense counsel would essentially be attempting to use the personal opinion of other attorneys within Morgan & Morgan, P.A. to bolster the credibility of the witness. Granted Denied Reserved Agreed Modified 6. Any mention, reference, questioning, or evidence as to when the Plaintiff contacted or hired an attorney. Such evidence is irrelevant, prejudicial and would only be used to prove Plaintiff s litigiousness. Watson v. Builders Square, 563 So.2d 721 (Fla.4th DCA 1990). Zabner v. Howard Johnsons, Inc., 227 So.2d 543 (Fla.4th DCA 1969) (reversible error to admit evidence of fifteen prior lawsuits). Granted Denied Reserved Agreed Modified 7. Any prior settlement negotiations, discussions, compromise offers between the parties, that the Plaintiff settled with a tortfeasor or that a Defendant in this case was dismissed. Fla. Stat. § 90.408; Fla. Stat. § 768.401; Saleeby v. Rocky Elson Construction, Inc., 3 So.3d 1078, (Fla. 2009) (Sections 768.041(3) and 90.408 expressly prohibits the admission at trial of evidence of settlement and that a defendant has been dismissed from suit. No exceptions for impeachment purposes; Allstate Insur. Co. v. Campbell, 842 So. 2d 1031 (Fla 2nd DCA 2003) (trial court granted plaintiff s motion in limine in UIM case to preclude admission of settlement with tortfeasor). Granted Denied Reserved Agreed Modified -2- 8. That any of the Plaintiffs' treating physicians have committed medical malpractice or medical negligence, as the Defendant is responsible for damages resulting from negligent medical treatment rendered by reason of Defendant's negligence. Stuart v. Hertz, 351 So.2d 703 (Fla. 1977); Farina v. Zann, 609 So.2d 629 (Fla.4th DCA 1992). Granted Denied Reserved Agreed Modified 9. Any testimony of Defendant's medical expert or other witness on the inappropriateness of surgery or treatment performed by Plaintiff s treating physician or the lack of skill or judgment of the treating physician. Dungan v. Ford, 632 So.2d 159 (Fla.lst DCA 1994); Pedro v. Baber, 83 So. 3d 912 (Fla. 2nd DCA 2012). Granted Denied Reserved Agreed Modified 10. No statement or comment by the defense experts or any witness regarding the truthfulness or credibility of the Plaintiff or other witnesses. Enterprise Leasing Co. v. Sosa, 907 So2d 1239 (Fla. 3rd DCA 2005 )( not error to prohibit Defendant's expert witness from commenting on the sufficiency or credibility of personal representative's evidence, speaking about such evidence, and commenting on the weight and sufficiency of personal representative's testimony.) Whitfield v. State, 549 So.2d 1202 (Fla. 3rd DCA 1989) (not a proper method of impeachment for one witness to offer his personal view on the credibility of another witness); Boatwright v. State, 452 So.2d 666 (Fla.4th DCA 1984) (it was an invasion of the jury's exclusive province for one witness to offer his personal views on credibility of a fellow witness). Granted Denied Reserved Agreed Modified 11. Any reference to authoritative texts, papers, studies, publications, treaties, or similar authority authored by the defense expert or others in an attempt to bolster or otherwise support the defense expert' s opinion. Costanzo v. Agency Rent-A-Car, Inc., 560 So.2d 265 (4th DCA - 3- 1990); In the Interest of S.E. v. D.W. and TE, 946 So2d 620 (Fla. 2nd DCA 2007) (Findings from the Asymptomatic Carotid Atherosclerosis Study (ACAS) served to impermissibly bolster the credibility of patient's experts and diminish the credibility of doctor's expert's opinion on the ultimate issue of malpractice case, and thus ACAS was inadmissible at trial). Granted Denied Reserved Agreed Modified 12. No comment by the defense experts on the credibility, accuracy, or reputation of the opinions or character of the Plaintiffs experts. Carver v. Orange County, 444 So.2d 452 (5th DCA 1983)( It was improper to impeach expert witness by eliciting from another expert witness what he thinks of that expert) Ecker v. National Roofing of Miami, 201 So.2d 589 (3d DCA 967)(Testimony of one expert witness should not be impeached by testimony of a second expert witness that reputation of first expert witness for ability is not good). Granted Denied Reserved Agreed Modified 13. The defense CME physician should not be permitted to change any of his opinions or to state additional opinions not contained in the CME report or given at deposition. Fla. R. Civ. P. Rule 1.360(b). SuarezBurgos and Geico v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999); rev. denied 767 So.2d 461 (Fla.2000) (Not error to grant new trial when trial was the first occasion on which expert had unequivocally stated that plaintiff had suffered no permanent injury, and expert admitted that some of his conclusions were based on material that he had seen just hours before testifying). Office Depot, Inc. v. Miller, 584 So.2d 587 (4th DCA 1991) (Failure of defendant to disclose substantial reversal of its expert's opinion prejudiced plaintiff and warranted new trial). Granted Denied Reserved Agreed Modified 14. Testimony by the compulsory medical examination doctor regarding the reasonableness of any of the medical bills. Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994). -4- Granted Denied Reserved Agreed Modified 15. Any motor vehicle collisions in which Plaintiff was involved before or after the complained of incident. There is no evidence that those occurrences are causally connected to the complained incident or injuries. Such evidence is not relevant to any issue and any probative value is substantially outweighed by its prejudicial effect and is an attempt to impeach the Plaintiff on facts that are not material. Fla. Stat. § 90.403 & Fla. Stat.§90.608 (5). Further, this evidence would be an attempt to imply that the Plaintiff is a "bad driver" which is improper impeachment of the Plaintiff's character by the use of specific instances of their prior misconduct which is improper impeachment of the witness' credibility and character in a manner not permitted by the Florida Evidence Code. Fla. Stat.§§ Granted Denied Reserved Agreed Modified 16. That Plaintiff has received, will receive, or may be entitled to receive benefits of any kind or character from any collateral source, [Gormley v. GTE Products, 587 So.2d 455 (Fla. 1991)] including, but not limited to the following: a. Benefits from collateral insurance coverage; Sheffield v. Superior Insurance, 800 So.2d 197 (Fla. 2001); b. Services furnished without charge; c. Medicare benefits; Winston Towers Associates v. DeCarlo, 481 So.2d 1261 (Fla. 3d DCA 1986); d. Medicaid benefits; Velilla v. VIP Care Pavillion Ltd., 861 So.2d 69 (Fla. 4th DCA 2003) e. Welfare, food stamps or other governmental or charitable benefits; Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975); Parker v. Hoppock, 695 So.2d 424 (Fla. 4th DCA 1997); f. Worker's compensation benefits; Cook v. Eney, 277 So.2d 848 (Fla. 3rd DCA 1973). Sosa v. Knight-Ridder Newspaper 435 So.2d 821 (Fla. 1983); and Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982); and - 5- Past and future social security benefits, or social security disability benefits; Cook v. Eney, 277 So.2d 848 (Fla. 3rd DCA 1973). Granted Denied Reserved Agreed Modified 17. Any mention, reference, or comment of Plaintiffs failure to call a witness equally available to both parties. Lowder v. Economic Opportunity Health Center, Inc., 680 So.2d 1133 (Fla. 3rd DCA 1996). Granted Denied Reserved Agreed Modified 18. The arrest or conviction of the Plaintiff or a witness for a criminal offense, unless the arrest resulted in a conviction and the offense convicted of was punishable by imprisonment in excess of 1 year, involved dishonesty or false statement and the conviction was not so remote in time as to have no bearing on the character of the witness. Fla. Stat § 90.610; Aaron v. State, 345 So.2d 641, n.10 (Fla. 1977). Granted Denied Reserved Agreed Modified 19. That Plaintiff filed for divorce, was separated from her spouse or any other evidence of marital discord between the Plaintiff and her spouse. Since there is no claim for loss of consortium, such evidence is not relevant to any issue and any probative value of that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403. Granted Denied Reserved Agreed Modified 20. Any mention, reference, questioning or evidence as to the financial status of the Plaintiff, including but not limited to her purchase of a new house, new cars, incorrect spending, or whether he/she is in a better financial position now than prior to the accident. . Sossa v. Newman, 647 So.2d 1018 (Fla. 4th DCA 1994) (In Florida, the general rule is that during trial no reference should be made to the wealth or poverty of a party, nor should the financial status of one party be -6- contrasted with the other). Hurtado v Desouza, 166 So.2d 831 (Fla. 4th DCA 2015; Batlemento v Dove Fountain, Inc., 593 So.2d 234, 241 (Fla. 5th DCA 1991). Granted Denied Reserved Agreed Modified 21. Any reference by Defendant's experts or other witnesses that the Plaintiff had the last clear chance to avoid the accident. The "Last Clear Chance Doctrine" has no application in comparative negligence cases. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). Granted Denied Reserved Agreed Modified 22. That Defendant was a good driving record or was a safe driver before the complained of incident. Such evidence is improper character evidence, is irrelevant as to how the Defendant drove the vehicle on the date and time in question and the probative value of such evidence is substantially outweighed by the danger of unfair prejudice. Dade County v. Carucci, 349 So.2d 734 (Fla. 3rd DCA 1977) (improper to admit testimony as to prior driving record of county employee who was driving bus in which plaintiff was a passenger at time of accident). Granted Denied Reserved Agreed Modified 23. Any recovery by the Plaintiff will not be subject to federal income tax or any other form of taxation. Good Samaritan Hospital v. Saylor, 495 So.2d 782 (Fla. 4th DCA 1986); Comfort Makers v. Kenton, 515 So.2d 1384 (Fla. 5th DCA 1987). Granted Denied Reserved Agreed Modified 24. Any statements or comment by defense attorney to the jury why certain witnesses did not testify or any reference to what uncalled witnesses would have testified to if called. Riggins v. Mariner Boatworks, Inc., 545 So.2d 430 (Fla. 2d DCA 1989); City Provisioners, Inc., v. Anderson, 578 So.2d 855 (Fla. 5th DCA 1991). Granted Denied Reserved Agreed Modified - 7- 25. Any statement or comment by defense attorney concerning matters not in evidence. Borden, Inc. v. Young, 479 So.2d 850 (Fla. 3rd DCA 1985) (improper for attorney to assert his personal knowledge of nefarious activities supposedly engaged in by large corporate defendant which were not only not in evidence but did not in fact exist). Granted Denied Reserved Agreed Modified 26. Any statement or comment of defense attorney's personal belief in his client or the justice of his cause. Miami Coin-O-Wash, Inc., v. McGough, 195 So.2d 227 (Fla. 3rd DCA 1967). Granted Denied Reserved Agreed Modified 27. Any statement or comment of the defense attorney's personal beliefs concerning the evidence, including a witness' credibility or his knowledge of the evidence. Seguin v. Hauser Motor Co., 350 So.2d 1089 (Fla. 4th DCA 1977); (Lawyer's personal opinion as to credibility of witness is not proper subject for argument to trier of fact); Moore v. Taylor Concrete & Supply Co., 553 So.2d 787 (Fla. 1 sy DCA 1989) (Attorney's expression of his personal opinion as to credibility of witness, or of his personal knowledge of facts in case, is fundamentally improper); Kaas v. Atlas Chemical Co., 623 So.2d 525 (Fla. 3rd DCA 1993) (counsel committed fundamental error by repeatedly arguing that defense expert witness was a liar); S.H. Inv. & Dev. Corp. v. Kincaid, 495 So.2d 768 (Fla. 5th DCA 1986) (Final argument in which counsel stated he knew certain evidence and statements presented by opposing parties were not true, that his client testified truly, honestly and candidly, and in which counsel stated his opinion as to veracity of various adverse witnesses mandated new trial). Granted Denied Reserved Agreed Modified 28. Any statement that the Plaintiffs' attorney always asks for more money than they expect to receive. Hartford Accident Indemnity Co. v. Ocha, 472 So.2d 1338 (Fla. 4th DCA 1985); -8- Donaldson v. Cenac, 675 So2d 228 (Fla. l' DCA 1996) (Statement by defense counsel, in closing argument of personal injury action, that it's not uncommon for plaintiff s attorneys to ask for some ridiculous amount of damages "50 times what they really do expect to get" was improper). Granted Denied Reserved Agreed Modified 29. Any reference to the Plaintiffs' expert witnesses as "hired guns". Budget Rent-A- Car Systems, Inc. v. Jana, 600 So.2d 466 (Fla. 4th DCA 1992). (When an attorney, in the opening statement to a jury, begins conjuring up images of the gunfighter shooting it out in the street, and when this type of "argument" is prevalent in a trial, the stature of the judicial system is lowered considerably from where we think it should be). Granted Denied Reserved Agreed Modified 30. That defense experts not attempt to introduce inadmissible hearsay evidence. It is improper for an expert witness to relate hearsay statements or the contents of hearsay documents to the jury or to otherwise serve as a conduit for the purpose of placing inadmissible evidence before the jury. Ervin v. Todd, 699 So.2d 275 (Fla. 5th DCA 1997) (permitting defense expert to testify concerning content of medical records that had been ruled inadmissible was prejudicial error); Maklakiewicz v. Berton, 652 So.2d 1208 (Fla. 3rd DCA 1995) (trial court abused its discretion in admitting testimony of police officer testifying as accident reconstruction expert where officer's testimony was based on inadmissible hearsay evidence). Granted Denied Reserved Agreed Modified 31. Any improper argument or comment that attempts to appeal to the conscious of the jury on matters not relevant or probative of the evidence, such as the "filing of frivolous lawsuits by the trial attorneys is one of the major ills of our society" or "our system has created a situation that every time we do something if it does not turn out the way we thought then we sue"; seeking money -9- damages for personal injuries shows the "deterioration of our society"; or "lawsuits constitute one of the major ills of our society.", or the problem of overcrowded courtrooms. Bell South Human Resources Administration, Inc. v. Colatarci & Hylton, 641 So.2d 427 (Fla. 4th DCA 1994); Stokes v. Wet V\T Wild, 523 So.2d 181 (Fla. 5th DCA 1988) (reference to overcrowded courtrooms was attempt to appeal to conscience of community in matters far afield from evidence admitted). Granted Denied Reserved Agreed Modified 32. The financial burden or other consequences which a verdict for the Plaintiff would have upon the Defendant. Padrino v. Resnick, 615 So.2d 698 (Fla.3d DCA 1992) (closing argument which asked jury to consider financial burden which a verdict for plaintiff would have on defendant was improper and prejudicial); Linzy v. Rayburn, 58 So.3d 424 (Fla.lst DCA 2011) (defense counsel's closing statement, that owner of business being sued would be solely responsible for any award of damages, was improper and warranted new trial). Granted Denied Reserved Agreed Modified 33. Any questioning, comment or reference that Plaintiff s counsel referred Plaintiff to any doctor. Burt v. GEICO, 603 So.2d 125 (Fla. 2nd DCA 1999) (Attorney-client privilege precluded order compelling personal injury plaintiff to answer deposition question as to whether counsel referred her to particular physician). Granted Denied Reserved Agreed Modified 34. Any prior injuries or preexisting conditions of the Plaintiff which are unrelated to the injuries or damages claimed or from which Plaintiff made a full recovery. Except for aggravation of preexisting condition or activation of a latent condition, any other prior injuries or preexisting conditions of the Plaintiff are not relevant, and any probative value of that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403. -10- Granted Denied Reserved Agreed Modified 35. Plaintiff had prior claims or lawsuits. There is no evidence that those claims or lawsuits are causally connected to the complained of occurrence or injuries. The only use for such evidence would be to attempt to discredit and impeach the Plaintiff on the basis that he/she is litigious. Such evidence is not relevant to any issue and any probative value of that evidence is substantially outweighed by its prejudicial effect. Zabner v. Howard Johnsons Inc., 227 So.2d 543 (Fla.4th DCA 1969) (Introduction of the element of fifteen other lawsuits could have had no effect other than to try to prejudice the jury against the plaintiff); Colvin v. Williams, 564 So.2d 1249 ( Fla. 4th DCA 1990) (Patient's prior personal injury litigation was not relevant to issues in patient's personal injury suit for damages arising out of automobile accident.). Granted Denied Reserved Agreed Modified 36. The amount of money recovered by settlement or judgment by the Plaintiff in any prior claim or lawsuit. Leslie v. Higgason, 779 So.2d 470 (Fla. 2d DCA 2000) (Admission of amount of settlement from an accident that occurred eight years before accident at issue was reversible error); State Farm Fire and Casualty v. Pettigrew, 884 So.2d 191 (Fla. 4th DCA 2004) (Amount of a settlement or judgment for a prior injury is inadmissible because it is clearly irrelevant to the issues being tried). Granted Denied Reserved Agreed Modified 37. That the Defendant or any other drivers or occupants of vehicles involved in the complained of occurrence were not injured or sustained minor injuries. Any probative value of that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403. Granted Denied Reserved Agreed Modified 38. Plaintiff s drug use or alcohol abuse. Such evidence is irrelevant to any issue since there is no evidence that said usage caused or aggravated Plaintiff s complained of injuries or that Plaintiff had used drugs or alcohol at time of the complained of incident or that prior drug or alcohol use has affected her ability to observe, remember and recount. Also, it would be improper impeachment by prior acts of misconduct. Edwards v. State, 548 So.2d 656 (Fla. 1989); Edwards v. Orkin Exterminating Co., Inc., 718 So.2d 881, 883 (Fla. 3rd DCA 1998) (jury was prejudiced by admission of irrelevant evidence that Plaintiff had been an alcoholic and drug user.). Granted Denied Reserved Agreed Modified 39. The traffic crash report or any part thereof, including but not limited to Plaintiffs "injury severity", Plaintiff s physical condition, that Plaintiff failed to complain of injury to the investigating police officer, or any other statements made by the Plaintiff to the investigating officer for the purpos of completing the traffic crash report. No "statement made to a law enforcement officer for the purpose of completing a crash report . . .shall be used as evidence in any trial. . ." Fla. Stat. § 316.066(4); Price v. Rizzuti, 661 So.2d 97 (Fla. 4th DCA 1995) (statements made to an investigating police officer by a participant in the accident are confidential and not admissible); Thomas v. Gottleib, 520 So.2d 622 (Fla.4th DCA 1988) (Motorist's failure to complain to investigating officer of injury at accident scene was privileged, and officer thus could not testify that motorist made no complaints of injury). Granted Denied Reserved Agreed Modified 40. That the investigating police officer issued a traffic citation, did not issue a traffic citation or the Plaintiff admitted the traffic infraction and paid a fine. Fla. Stat. § 318.14 (4ab); Galgano v. Buchnan, 783 So.2d 302, (Fla. 4th DCA 2001) (admission of defendant's plea of guilty to non-criminal traffic citation following the accident by paying fine via mail, as well as Plaintiff s -12- questioning of Defendant and the investigating officer on whether motorist received a citation, was prejudicial error); Budget Rent a Car v. Jana, 600 So.2d 466 (Fla. 4th DCA 1992) (questions regarding traffic citations issued at scene of collision should have resulted in mistrial); Vantan Industries, Inc. v. Ryder Truck Rental, Inc. 890 So.2d 421 (Fla. l' DCA 2004) (Police officer's improper statement that no traffic citations were issued was sufficiently prejudicial to warrant new trial.). Granted Denied Reserved Agreed Modified 41. The Plaintiff s previous driving record. State v. Hubbard, 751 So.2d 552 (Fla. 1999) (The fact that Hubbard had his driving privileges suspended in the past clearly was of slight probative value, which was substantially outweighed by the danger of unfair prejudice). Granted Denied Reserved Agreed Modified 42. If the Defendant's counsel or any witness argued that Plaintiff never returned to a medical care provider after the last visit, Plaintiff is entitled to introduce evidence as the reason she did not seek medical care was due to his/her inability to pay for future medical treatment and/or other personal reasons. Sousa v. Newman, 647 So. 2d 1018 (Fla. 4th DCA 1994). Granted Denied Reserved Agreed Modified 43. Plaintiff s past earnings. The Plaintiff has withdrawn her lost earning and loss of future earning capacity claims as a result of the subject accident. Any attempted impeachment of Plaintiff based on past earnings would be irrelevant and impeachment on a collateral issue. Nationwide Mutual Fire Insurance Co., v. Bruscarino, 982 So.2d 753 (Fla. 4th DCA 2008) (Could not impeach Plaintiff s credibility with evidence of a discrepancy between her deposition testimony and tax returns, where Plaintiff dropped her claim for lost wages on the first day of trial). -13- Granted Denied Reserved Agreed Modified 44. That it was wrong or improper for Plaintiff's attorney to meet with a witness to discuss what testimony he or she might give if called to testify at deposition or trial and thereby attempt to discredit that witness. It is perfectly proper for an attorney to meet with a witness for this purpose. Florida Standard Criminal Instruction 3.10(7); Kingery v. State, 523 So2d 1199 (Fla. l' DCA 1988) (It is undisputed that attorney may talk to witness about testimony witness will give, and that witness' credibility should not be challenged on basis of discussion). Granted Denied Reserved Agreed Modified 45. Any mention, reference, questioning or evidence that Defendant has served in and/or sustained an injury while a member of the United States Armed Forces. Any mention or reference to this only serves to gather sympathy for the Defendant. Such evidence is improper character evidence, not relevant to any issue and any possible probative value of that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403. Granted Denied Reserved Agreed Modified 46. Any impeachment of the Plaintiff or witnesses by the use of specific instances of their prior misconduct. This is improper impeachment of the witness' credibility and character in a manner not permitted by the Florida Evidence Code. Fla. Stat.§§ Farinas v. State, 569 So2d 425 (Fla.1990) (witness' credibility could not be impeached by cross-examination concerning prior unethical conduct); Dempsey v. Shell Oil Co., 589 So2d 373 (Fla. 4th DCA 1991)(error for trial court to permit plaintiff to be impeached with testimony that she was involuntarily separated from her prior job due to carelessness) Doremus v. Florida Energy Systems of South Florida, Inc., 634 So.2d 1106 (Fla. 4th DCA 1994)(error to impeach using misrepresentation on employment application of status of military discharge) DeSantis v. -14- Acevedo, 528 So.2d 461 (Fla.3d DCA 1988)(error to allow impeachment based on evidence of dishonesty as policeman) Laffinan v. Sherrod, 565 So.2d 760, 762 (Fla. 3rd DCA 1990)(error to admit evidence that Plaintiff had been confined to detention center after he had recovered from injuries). Granted Denied Reserved Agreed Modified 47. Any evidence of Plaintiff s sexual preference. Roby v. Kingsley, 492 So2d 789 (Fla. l' DCA 1986). Granted Denied Reserved Agreed Modified 48. The defense expert's CME report should not be admitted into evidence. It was prepared for the purpose of litigation and is not a business record. McElroy v. Perry, 753 So.2d 121 (Fla. 2nd DCA 2000). Granted Denied Reserved Agreed Modified 49. Any reference or suggestion to the effect that "money won't undo the injury and damage the plaintiff may have sustained", because such a suggestion is an improper appeal for jury sympathy toward Defendant and invites the jury to disregard it's duty to apply the legal measure of damages which the evidence shows have been caused by Defendant's misconduct and instead to base a verdict on improper considerations. Granted Denied Reserved Agreed Modified 50. Any reference or suggestion that Defendant is sorry or regrets the occurrence in question, because such a suggestion is an improper appeal for jury sympathy toward Defendant and invites the jury to disregard it's duty to apply the legal measure of damages by awarding such damages as the evidence shows have been caused by such defendant's misconduct and base a verdict on improper considerations. -15- Granted Denied Reserved Agreed Modified 51. Any reference or suggestion as to the birth of any of plaintiffs children out of wedlock or the fact that plaintiffs children may have different fathers/mothers. Such evidence is improper impeachment by use of specific acts of misconduct, not relevant to any issue and any probative value of that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403. Granted Denied Reserved Agreed Modified 52. Any reference or suggestion that the plaintiff is or has ever lived with someone out of wedlock. Such evidence is improper impeachment by use of specific acts of misconduct, not relevant to any issue and any probative value of that evidence is substantially outweighed by its prejudicial effect. Fla. Stat. § 90.403. Granted Denied Reserved Agreed Modified 53. Any reference or suggestion to the effect that if the Plaintiff has surgery her physical condition would improve. The plaintiff does not have a duty to mitigate her damage and undergo such a surgery. It is performed under general anesthesia, may or may not improve Plaintiff s condition, will subject Plaintiff to great pain and a long recovery. The Plaintiff s decision to forego the surgery is reasonable given its risks and uncertainties. Ballard & Ballard v. Pelaia, 73 So2d. 840 (Fla. 1954); Cline v. United States, 270 F. Supp. 247 (S.D. Fla. 1967). Granted Denied Reserved Agreed Modified 54. Any records prejudicial to Plaintiff which were obtained by Defendant pursuant to Rule 1.351 Fla.R.Civ.P. or by signed authorization, copies of which were not produced to Plaintiff during discovery in violation of Rule 1.351(e) Fla.R.Civ.P. Granted Denied Reserved Agreed Modified -16- CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to counsel of record via the Florida e-portal and/or e-mail to Iniv Gabay, Esq. Jonathan Diocares, Esq. and Emma Keller, Esq.„ Quintairos, Prieto, Wood & Boyer, P.A., 2400 East Commercial Blvd., Suite 520, Ft. Lauderdale, FL 33308, iniv. gab ay@qpwb1aw.com; j onathan. di ocares@qpwb1aw.com; emma.keller@qpwblaw.com; igabay.pleadings@qpwblaw.com; marie.cesar@qpwblaw.com; breanna.walls@qpwblaw.com; anthony.rangel@qpwblaw.com;, on this 29th day of January, 2024. /s/Thomas Caldwell, Esq. Thomas Caldwell, Esq. Florida Bar Number: 996513 Attorneysfor Plaintiff 444 Seabreeze Boulevard, Suite 100 Daytona Beach, FL 32118 Telephone: (386) 562-9274 Facsimile: (386) 562-9275 tcaldwell@forthepeople.com sgossett@forthepeople.com - 17 -