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Filing # 50111866 E-Filed 12/15/2016 03:15:14 PM
IN THE CIRCUIT COURT, OF THE 17™
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. CACE-14-016655 DIV. 02
DEBRA HINES,
Plaintiff,
vs.
HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY, INC.
a Florida Corporation,
Defendant.
/
DEFENDANT’S RESPONSE TO THE PLAINTIFFS MOTION
IN LIMINE AS TO NUMBER OF EXPERTS
COMES NOW, the Defendant, by and through its undersigned counsel, files its objection
and response to the Plaintiff's motion and states,
1. The Plaintiff seeks an “order limiting the number of expert witnesses each side
may call at trial to one expert per area of specialty”.
2. The motion relies upon rule 90.403 and cites part of it, but omits other portions of
the rule. The rule, in its entirety, provides,
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. This section shall not be construed to
mean that evidence of the existence of available third-party
benefits is inadmissible.
3. The motion is nondescript as to exactly what testimony the Plaintiff believes will
be cumulative.
** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 12/15/2016 3:15:13 PM.****4, The Defendant has listed Sam Upchurch, Ph.D., P.G., Edward Zisman, P.E., P.G.,
Darrel Hanecki, P.E., and Leslie Bromwell, Ph.D., P.E. on its expert disclosure.
5. Sam Upchurch, P.G. is a professional geologist that is expected to testify about
the geological conditions at the property and in Broward County, similar to the expected
testimony of the Plaintiff's geologist James Funderburk, P.G., P.E.
6. Edward Zisman, P.E., P.G. is a professional engineer and a professional geologist
who is expected to testify about the geotechnical conditions at the property and the causes of
damage, similar to the expected testimony of the Plaintiff's engineer Sunil Gulati, P.E.
7. Leslie Bromwell, Ph.D., P.E. is professional engineer who is expected to testify
only in the event that the Plaintiff seeks to introduce evidence of an investigation he performed at
a neighboring property which was disclosed to the Defendant on December 2, 2016. If the
Plaintiff seeks to introduce such evidence the Defendant will seek to call Dr. Bromwell to testify
about the geotechnical conditions at the neighboring property and how they are different than
those at the Hines property and why there is sinkhole activity at the neighboring property but not
the Hines property. Such testimony should not be precluded by Rule 90.403.
8. Darrel Hanecki, P.E. is the neutral evaluator and a professional engineer that is
expected to testify about the neutral evaluation and his opinions rendered in his report and during
his deposition.
9. The Plaintiff argues that through the neutral evaluation process “Mr. Hanecki was
not intended to provide an expert opinion that would provide one party an advantage at trial but
simply as a neutral non-binding third party opinion”.10. First and foremost, the legal standard is not whether the testimony creates an
unfair advantage to one party or the other. The rule is clear. Moreover, Florida Statute 627.7074
is clear. The statute states,
(13) The recommendation of the neutral evaluator is not binding
on any party, and the parties retain access to the court. The neutral
evaluator’s written recommendation, oral testimony, and full report
shall be admitted in any action, litigation, or proceeding relating to
the claim or to the cause of action giving rise to the claim.
11. The Buitrago decision that the Plaintiff relies upon applied the 2010 statute which
was significantly different than the 2012 statute which applies to this case and is therefore
uninstructive to this court.
12. This court need not make a 90.403 analysis because the applicable statute makes
it clear that the testimony is admissible, irrespective of 90.403.
13. Even if this court does make a 90.403 analysis, the analysis favors the admissible
of testimony from both geologists. The neutral evaluation statute was created as an alternative
dispute resolution process which was intended to have parties resolve sinkhole disputes via
neutral evaluation. While the findings of the neutral evaluator clearly are not binding upon the
parties, the statute clearly encourages parties to resolve the dispute via neutral evaluator because
if they don’t, the jury gets to hear what those findings are and can give whatever weight it feels it
deserves.
14. The Plaintiff wants this court to treat the testimony of the neutral evaluator just
like any other expert. The testimony of an expert is admissible pursuant to the Evidence Code
and there would be no reason for the Legislature to create a separate statute demanding the
admissible of the testimony of the neutral evaluator if the Legislature intended to have the courts
treat the testimony of the neutral evaluator the same as it would treat any other expert.15. The statute considered by Buitrago stated,
(13) The recommendation of the neutral evaluator is not binding on
any party, and the parties retain access to court. The neutral
evaluator’s written recommendation is admissible in any
subsequent action or proceeding relating to the claim or to the
cause of action giving rise to the claim.
16. There are two significant changes from the 2010 and the 2012 statute.
17. First, the Legislature replaced the language “is admissible” to “shall be
admissible”. Clearly the word “shall” has different meaning than the word “is”. Florida courts
have long interpreted the word “shall” to mean that the court has no discretion.
18. Second, the Legislature added the words “oral testimony, and full report” in
addition to the word “recommendation”. The 2010 statute did not contemplate the oral
testimony of the neutral evaluator, but the 2012 statute expressly not only permits it, but requires
it. Furthermore the Legislature clearly contemplated that the word “recommendation” is
different than “oral testimony” given the fact that the Legislature left the word
“recommendation” in the statute and inserted “oral testimony” as an addition rather than a
replacement to the word “recommendation”.
19. The testimony of Darrel Hanecki, P.E. does not constitute a needless presentation
of evidence and should not be precluded by Rule 90.304.
WHEREFORE, the Defendant seeks an Order denying the Plaintiff's motion.CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
forwarded by electronic mail to:
Ryan H. Sherman, Esq. at eserviceSLPA@ gmail.com and
Morgan Barfield at Service@corlessbarfield.com on this 1s® day of December, 2016.
By:
HCP.14211
GROELLE & SALMON, P.A.
Attorneys for Defendant
Waterford Plaza
7650 W. Courtney Campbell Causeway
Suite 800
Tampa, FL 33607
(813) 849-7200 (telephone)
(813) 849-7201 (fax)
gstcourtdocs@gspalaw.com
rschulte com
Tita T Ltede-
ROBERT T. SCHULTE, ESQ.
FBN: 88819
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Filing # 50111866 E-Filed 12/15/2016 03:15:14 PM IN THE CIRCUIT COURT, OF THE 17™ JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE-14-016655 DIV. 02 DEBRA HINES, Plaintiff, vs. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC. a Florida Corporation, Defendant. / DEFENDANT’S RESPONSE TO THE PLAINTIFFS MOTION IN LIMINE AS TO NUMBER OF EXPERTS COMES NOW, the Defendant, by and through its undersigned counsel, files its objection and response to the Plaintiff's motion and states, 1. The Plaintiff seeks an “order limiting the number of expert witnesses each side may call at trial to one expert per area of specialty”. 2. The motion relies upon rule 90.403 and cites part of it, but omits other portions of the rule. The rule, in its entirety, provides, 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. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible. 3. The motion is nondescript as to exactly what testimony the Plaintiff believes will be cumulative. ** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 12/15/2016 3:15:13 PM.****4, The Defendant has listed Sam Upchurch, Ph.D., P.G., Edward Zisman, P.E., P.G., Darrel Hanecki, P.E., and Leslie Bromwell, Ph.D., P.E. on its expert disclosure. 5. Sam Upchurch, P.G. is a professional geologist that is expected to testify about the geological conditions at the property and in Broward County, similar to the expected testimony of the Plaintiff's geologist James Funderburk, P.G., P.E. 6. Edward Zisman, P.E., P.G. is a professional engineer and a professional geologist who is expected to testify about the geotechnical conditions at the property and the causes of damage, similar to the expected testimony of the Plaintiff's engineer Sunil Gulati, P.E. 7. Leslie Bromwell, Ph.D., P.E. is professional engineer who is expected to testify only in the event that the Plaintiff seeks to introduce evidence of an investigation he performed at a neighboring property which was disclosed to the Defendant on December 2, 2016. If the Plaintiff seeks to introduce such evidence the Defendant will seek to call Dr. Bromwell to testify about the geotechnical conditions at the neighboring property and how they are different than those at the Hines property and why there is sinkhole activity at the neighboring property but not the Hines property. Such testimony should not be precluded by Rule 90.403. 8. Darrel Hanecki, P.E. is the neutral evaluator and a professional engineer that is expected to testify about the neutral evaluation and his opinions rendered in his report and during his deposition. 9. The Plaintiff argues that through the neutral evaluation process “Mr. Hanecki was not intended to provide an expert opinion that would provide one party an advantage at trial but simply as a neutral non-binding third party opinion”.10. First and foremost, the legal standard is not whether the testimony creates an unfair advantage to one party or the other. The rule is clear. Moreover, Florida Statute 627.7074 is clear. The statute states, (13) The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to the court. The neutral evaluator’s written recommendation, oral testimony, and full report shall be admitted in any action, litigation, or proceeding relating to the claim or to the cause of action giving rise to the claim. 11. The Buitrago decision that the Plaintiff relies upon applied the 2010 statute which was significantly different than the 2012 statute which applies to this case and is therefore uninstructive to this court. 12. This court need not make a 90.403 analysis because the applicable statute makes it clear that the testimony is admissible, irrespective of 90.403. 13. Even if this court does make a 90.403 analysis, the analysis favors the admissible of testimony from both geologists. The neutral evaluation statute was created as an alternative dispute resolution process which was intended to have parties resolve sinkhole disputes via neutral evaluation. While the findings of the neutral evaluator clearly are not binding upon the parties, the statute clearly encourages parties to resolve the dispute via neutral evaluator because if they don’t, the jury gets to hear what those findings are and can give whatever weight it feels it deserves. 14. The Plaintiff wants this court to treat the testimony of the neutral evaluator just like any other expert. The testimony of an expert is admissible pursuant to the Evidence Code and there would be no reason for the Legislature to create a separate statute demanding the admissible of the testimony of the neutral evaluator if the Legislature intended to have the courts treat the testimony of the neutral evaluator the same as it would treat any other expert.15. The statute considered by Buitrago stated, (13) The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to court. The neutral evaluator’s written recommendation is admissible in any subsequent action or proceeding relating to the claim or to the cause of action giving rise to the claim. 16. There are two significant changes from the 2010 and the 2012 statute. 17. First, the Legislature replaced the language “is admissible” to “shall be admissible”. Clearly the word “shall” has different meaning than the word “is”. Florida courts have long interpreted the word “shall” to mean that the court has no discretion. 18. Second, the Legislature added the words “oral testimony, and full report” in addition to the word “recommendation”. The 2010 statute did not contemplate the oral testimony of the neutral evaluator, but the 2012 statute expressly not only permits it, but requires it. Furthermore the Legislature clearly contemplated that the word “recommendation” is different than “oral testimony” given the fact that the Legislature left the word “recommendation” in the statute and inserted “oral testimony” as an addition rather than a replacement to the word “recommendation”. 19. The testimony of Darrel Hanecki, P.E. does not constitute a needless presentation of evidence and should not be precluded by Rule 90.304. WHEREFORE, the Defendant seeks an Order denying the Plaintiff's motion.CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by electronic mail to: Ryan H. Sherman, Esq. at eserviceSLPA@ gmail.com and Morgan Barfield at Service@corlessbarfield.com on this 1s® day of December, 2016. By: HCP.14211 GROELLE & SALMON, P.A. Attorneys for Defendant Waterford Plaza 7650 W. Courtney Campbell Causeway Suite 800 Tampa, FL 33607 (813) 849-7200 (telephone) (813) 849-7201 (fax) gstcourtdocs@gspalaw.com rschulte com Tita T Ltede- ROBERT T. SCHULTE, ESQ. FBN: 88819