On August 27, 2014 a
Motion,Ex Parte
was filed
involving a dispute between
Hines, Debra,
and
Homeowners Choice Prop & Casualty Ins Co,
for Contract and Indebtedness
in the District Court of Broward County.
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Filing # 50072389 E-Filed 12/14/2016 07:11:49 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
DEBRA HINES
Plaintiff,
vs.
CASE NO.: CACE-14-016655
DIVISION: 02
HOMEOWNERS CHOICE PROPERTY &
CASUALTY INSURANCE COMPANY, INC.
a Florida Corporation
Defendant.
/
PLAINTIFF’S MOTION IN LIMINE AS TO NUMBER OF EXPERTS
COMES NOW, Plaintiff, by and through her undersigned counsel and file this Motion in
Limine seeking to limit the number of experts and preclude cumulative testimony and in support
thereof states the following:
1.
This is a lawsuit based upon a breach of an insurance policy providing coverage
for a sinkhole loss.
Defendant retained an engineering firm, SDII Global, to investigate the subject
residence. That firm opined that sinkhole activity was not a cause of the distress
to the property.
Plaintiff challenged the denial of coverage through competing expert testimony
and testing. This matter is now set for trial beginning February 2017.
Defendant has filed a Witness naming the original geological expert from SDII as
witnesses and also naming two new experts, both geotechnical engineers, as expert
witnesses. The testimony of these two witnesses if called will be cumulative and
Defendant should be limited to only calling one expert per field of expertise to
provide expert testimony. Both have the same area of expertise, background and
** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 12/14/2016 7:11:48 PM.****experience and have been advertised to provide the exact same testimony to the
jury at trial. These two retained experts are unquestionably cumulative to each
other.
The second issue involves a neutral evaluator. The parties attended a non-binding
dispute resolution process as outlined in F]. Stat. 627.7074 whereby an expert was
asked to provide a third opinion to the parties. The evaluator in this case is Darrel
Haeckel, also a geotechnical engineer. As outlined above, Defendant has already
named two other expert geotechnical engineers. Under any other circumstances
the Court would never allow Defendant to call three geotechnical engineers to
testify on the same opinion. That is clearly cumulative.
Although the statute states that a neutral evaluators report may be admissible at
trial, the Second DCA has also pointed out that the trial Court still remains the
gatekeeper of all evidence and that neutral evaluators reports and/or testimony
must still comply with all other rules of evidence and procedure before becoming
admissible. See State Farm v. Buitrago, 100 So.3d 85 (Fla. 2"! DCA 2012).
It is anticipated that Defendant will argue Mr. Hanecki should be available to
testify as he was the neutral evaluator on this case and not an expert retained by
Defendant. Mr. Hanecki was brought into this case through the statutory process
of the neutral evaluation. Neutral evaluation was intended as a dispute resolution
procedure and is non-binding. Through this 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.
Regardless of how Mr. Hanecki became involved in this matter, his testimony will
still be purely cumulative to that of the other geotechnical engineers, there is no
question about that. His testimony will consist of evaluating the testing methods,
results of the testing and interpretation of whether sinkhole activity exists or not.
He will add no other testimony to aid the jury in their deliberation other than
stating he was not hired by either side. This will result in an unfair advantage to
Defendant who now gets the benefit of multiple experts that are clearly cumulative
simply because the neutral evaluator in the dispute resolution process agreed with
their position. The neutral evaluation statute was not designed to provide this
advantage and cannot trump the long-established rules of evidence or procedure
in this State and allow cumulative testimony.
Evidence shall be excluded if it results in the “needless presentation of cumulative
evidence”. F/. Stat. 90.403.
The trial court has broad discretion to refuse to admit evidence that is merely
cumulative and also to determine the number of expert witnesses each side may
call at trial. FRCP 1.200(b).
WHEREFORE, Plaintiff respectfully requests that this Court enter an Order limiting the
number of expert witnesses each side may call at trial to one expert per area of specialty
and any other relief the Court deems necessary.CERTIFICIATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
electronically filed with the Clerk of Court using the Florida Courts E-Filing Portal and served
via Florida Courts E-Filing Portal Electronic Mail to: Ryan Sherman, Esq.; Co-Counsel for
Plaintiff, Ryanshermanfl@ gmail.com ; Sherman Law, P.A., 4000 Hollywood Blvd,m #265-S,
Hollywood, Florida 33021 and Jonathan T. Hall, Esq., ; Counsel for Defendant,
grobinson@gspalaw.com and gstcourtdocs@gspalaw.com, Groelle & Salmon, PA, 7650
Courtney Campbell Cswy., Ste. 800, Tampa, FL 33067 on this 14th day of December 2016.
4S/ Morgan Barfield
Morgan Barfield, Esquire
Florida Bar Number: 0605761
CORLESS BARFIELD
TRIAL GROUP, LLC
6812 W. Linebaugh Ave.
Tampa, Florida 33625
Telephone: (813) 258-4998
Facsimile: (813) 258-4988
Attorneys for Plaintiff
Document Filed Date
December 14, 2016
Case Filing Date
August 27, 2014
Category
Contract and Indebtedness
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Filing # 50072389 E-Filed 12/14/2016 07:11:49 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION DEBRA HINES Plaintiff, vs. CASE NO.: CACE-14-016655 DIVISION: 02 HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC. a Florida Corporation Defendant. / PLAINTIFF’S MOTION IN LIMINE AS TO NUMBER OF EXPERTS COMES NOW, Plaintiff, by and through her undersigned counsel and file this Motion in Limine seeking to limit the number of experts and preclude cumulative testimony and in support thereof states the following: 1. This is a lawsuit based upon a breach of an insurance policy providing coverage for a sinkhole loss. Defendant retained an engineering firm, SDII Global, to investigate the subject residence. That firm opined that sinkhole activity was not a cause of the distress to the property. Plaintiff challenged the denial of coverage through competing expert testimony and testing. This matter is now set for trial beginning February 2017. Defendant has filed a Witness naming the original geological expert from SDII as witnesses and also naming two new experts, both geotechnical engineers, as expert witnesses. The testimony of these two witnesses if called will be cumulative and Defendant should be limited to only calling one expert per field of expertise to provide expert testimony. Both have the same area of expertise, background and ** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 12/14/2016 7:11:48 PM.****experience and have been advertised to provide the exact same testimony to the jury at trial. These two retained experts are unquestionably cumulative to each other. The second issue involves a neutral evaluator. The parties attended a non-binding dispute resolution process as outlined in F]. Stat. 627.7074 whereby an expert was asked to provide a third opinion to the parties. The evaluator in this case is Darrel Haeckel, also a geotechnical engineer. As outlined above, Defendant has already named two other expert geotechnical engineers. Under any other circumstances the Court would never allow Defendant to call three geotechnical engineers to testify on the same opinion. That is clearly cumulative. Although the statute states that a neutral evaluators report may be admissible at trial, the Second DCA has also pointed out that the trial Court still remains the gatekeeper of all evidence and that neutral evaluators reports and/or testimony must still comply with all other rules of evidence and procedure before becoming admissible. See State Farm v. Buitrago, 100 So.3d 85 (Fla. 2"! DCA 2012). It is anticipated that Defendant will argue Mr. Hanecki should be available to testify as he was the neutral evaluator on this case and not an expert retained by Defendant. Mr. Hanecki was brought into this case through the statutory process of the neutral evaluation. Neutral evaluation was intended as a dispute resolution procedure and is non-binding. Through this 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. Regardless of how Mr. Hanecki became involved in this matter, his testimony will still be purely cumulative to that of the other geotechnical engineers, there is no question about that. His testimony will consist of evaluating the testing methods, results of the testing and interpretation of whether sinkhole activity exists or not. He will add no other testimony to aid the jury in their deliberation other than stating he was not hired by either side. This will result in an unfair advantage to Defendant who now gets the benefit of multiple experts that are clearly cumulative simply because the neutral evaluator in the dispute resolution process agreed with their position. The neutral evaluation statute was not designed to provide this advantage and cannot trump the long-established rules of evidence or procedure in this State and allow cumulative testimony. Evidence shall be excluded if it results in the “needless presentation of cumulative evidence”. F/. Stat. 90.403. The trial court has broad discretion to refuse to admit evidence that is merely cumulative and also to determine the number of expert witnesses each side may call at trial. FRCP 1.200(b). WHEREFORE, Plaintiff respectfully requests that this Court enter an Order limiting the number of expert witnesses each side may call at trial to one expert per area of specialty and any other relief the Court deems necessary.CERTIFICIATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been electronically filed with the Clerk of Court using the Florida Courts E-Filing Portal and served via Florida Courts E-Filing Portal Electronic Mail to: Ryan Sherman, Esq.; Co-Counsel for Plaintiff, Ryanshermanfl@ gmail.com ; Sherman Law, P.A., 4000 Hollywood Blvd,m #265-S, Hollywood, Florida 33021 and Jonathan T. Hall, Esq., ; Counsel for Defendant, grobinson@gspalaw.com and gstcourtdocs@gspalaw.com, Groelle & Salmon, PA, 7650 Courtney Campbell Cswy., Ste. 800, Tampa, FL 33067 on this 14th day of December 2016. 4S/ Morgan Barfield Morgan Barfield, Esquire Florida Bar Number: 0605761 CORLESS BARFIELD TRIAL GROUP, LLC 6812 W. Linebaugh Ave. Tampa, Florida 33625 Telephone: (813) 258-4998 Facsimile: (813) 258-4988 Attorneys for Plaintiff