Motion,Ex Parte: LUIS GARCIA VS GEICO GENERAL INSURANCE COMPANY C/O FDFS

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                                Filing # 65903467 E-Filed 12/28/2017 04:59:39 PM

IN THE COUNTY COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA.
LUIS GARCIA,
CASE NO. 2017-001430-CC-21
Plaintiff,
vs.
GEICO GENERAL INSURANCE COMPANY,
Defendant
/
PLAINTIFF'S MOTION IN LIMINE
COMES NOW, the Plaintiff, LUIS GARCIA, pursuant to Florida Evidence §90.403,
moves that defense counsel and any and all Defense witnesses be instructed by appropriate order
of the Court to refrain from any of the matters set forth herein without first approaching the
bench and obtaining a ruling of the Court outside the presence and hearing of all prospective
jurors and jurors ultimately selected in the cause with regard to any alleged theory of
admissibility of such matters. In this connection the Plaintiff would show the Court that the
matters set out would be inadmissible for any purpose on proper and timely objection in that they
have no bearing on the issues in the cause or the rights of the parties to this suit. Permitting
interrogation of witnesses, comments to jurors or prospective jurors, or offers of evidence of
proffers concerning these matters, would prejudice the jury and sustaining objections to such
questions or comments would not cure such prejudice, but rather would reinforce the impact of
such prejudicial matters on the jurors.
1. That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding

fault or the reasonableness of the conduct of any person in relation to the auto

accident.we

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
anything suspicious about the accident.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions or inferring
the existence of the accident, or using the words, “alleged accident,” or “alleged
crash” unless the Defendant has raised the issue of fraud.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions disparaging
the Chiropractic profession.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions inferring
that the type of impact or amount of property damage involved in this case would not
produce injury, including that of counsel in opening. Lindos Rent A Car v. Standley, 590
So.2d 1114 la. 4th DCA 1991);

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that any
physician examinations paid for by the defendant are “independent” or infer that the
Defendant’s expert’s opinion is non-biased.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that any
medical record review opinions paid for by the defendant are “independent” or infer

that the Defendant’s expert’s opinion is non-biased.10

11.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that the
patient and plaintiff are dishonest or are committing insurance fraud or that their
claims are suspect

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that any
claims were referred to the Special Investigation Unit (SIU) or the reasons why it was
referred to SIU.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that the
Plaintiff has engaged in insurance fraud. Statements in a proof of loss must be willful
and fraudulent before they will render the policy void for fraud and the insurer has
the burden to establish the knowing and willful misrepresentations were material to
its risk. See Rogers v. Auto-Owners Ins. Co. 379 So.2d 700 (Fla. 2d DCA), cert den.,
388 So.2d 1109 (Fla. 1980) (insurer burden to establish knowing and willful
misrepresented facts material to company’s risk); and E. G. Berkshire Mut. Ins. Co.
v. Moppet, 378 F.2d 1007,1012 (Sth Cir. 1967) (overestimation of value of goods,
and mistake for an error in judgment on the fixing of values will not render the
insurance contract void unless “the proof of the false swearing was such that no other
conclusion can be drawn than that a purposeful misrepresentation was intended.”)
That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions to anything

that was said by anyone at the scene of the accident regarding injuries of the13

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Plaintiff's patient during the accident investigation

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that a
conversation was had with the investigating police office and any conversation or

statements made to him or her. Section 316.066(4), Florida Statutes. See also

Department of Highway Safety & Motor Vehicles v. Corbin, 527 So.2d 868 (Fla. Ist DCA), rev. den., 534
So.2d 399 (Fla.1988); Department of Highway Safety & Motor Vehicles v, Perry, 702 So.2d 294 (Fla. 5th
DCA 1997). The purpose of the statute is to clothe with statutory immunity the statements and

communications that a driver, owner, or occupant of a vehicle is compelled to make in compliance with the

statutory duty under section 316.066(1) and (2). See Brackin v. Boles, 452 So.2d 540, 542 (Fla.1984). See

also Hoctor v. Tucker, 432 So.2d 1352, 1353 (Fla. Sth DCA 1983). White v. Consolidated
Freightways Corp. of Delaware, 766 So.24 1228 (Fla. 1st DCA 2000).

That the Defendant, its attorneys, or any of its witnesses may not attempt to discredit
the medical necessity of the services provided or to attempt to diminish the severity
of the injuries sustained in the automobile crash by mentioning, commenting,
suggesting, referring to or asking any questions that the insured may not have been
transported to a hospital via an ambulance service. The facts of the severity of the
injuries are reserved for the professional opinion of the treating physician.

That the Defendant, its attorneys, or any of its witnesses may not attempt to diminish
the severity of the injuries sustained in the automobile crash by mentioning,
commenting, suggesting, referring to or asking any questions that the insured may not
have received treatment from Fire-Rescue or any emergency service at the scene of
the accident. The facts of the severity of the injuries are reserved for the professional
opinion of the treating physician.

That the Defendant, its attorneys, or any of its witnesses be prohibited from16.

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mentioning, commenting, suggesting, referring to or asking any questions to the
patient's desire for treatment being motivated by the attorneys, claim building or
establishment of the tort threshold in a personal injury case.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions to the
financial status of the patient or the Plaintiff.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions to the legal
status of the patient or the Plaintiff.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions to any
claims that the patient has ever made including unemployment, workers
compensation, or injury claims whatsoever.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions of this suit
or judgment in this suit would have any effect upon the insurance rates, premium or
charges, either generally or as particularly applied to the Defendant as a result of this
matter.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions concerning
what the patient was seen doing after the accident by any witness that allegedly shows
there was no injury nor the opinion of any witness that the patient was not injured as a

result of observing what they were doing.21

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That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that
reasonable charges of physician’s should be the same whether it is paid by insurance
or paid out of the jury’s own pocket.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that this
type of case is the cause of delays or backlogs in the court system.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
existence of other clients of either counsel for Plaintiff.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions of other
patients of the treating physicians of this patient

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions of the
clients of either counsel for this patient who have treated with any of the treating
physicians of this patient.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions about the
treating physicians of this patient that in any way questions general methods, business
activities, advertising, transportation of patients, and any negative implication thereof
That the Defendant, its attorneys, or any of its witnesses be prohibited from

mentioning, commenting, suggesting, referring to or asking any questions about the28

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treating physicians continuing medical education or any problems or investigation
with the Department of Professional regulation or the related regulatory authority.
That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions relating to
patient and plaintiff having received or being entitled to receive, will receive, or will
become entitled to receive benefits of any kind or character from a collateral source,
including, but not limited to, the following: (a) benefits from collateral insurance
coverage; (b) services furnished without charge

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that it is
improper to impeach an expert witness by eliciting from another expert witness what
it thinks of the expert. Dungan v. Ford, 632 So.2d. 159 (Fla. Ist DCA 1994). Itis
improper to allow expert to testify on lack of skill or judgment and poor results
achieved by treating physician. Any of defendant's witnesses should be limited from
stating personal opinions about the Plaintiff and this patient. Reversible error to state
personal opinions about the merits of the case or credibility of the Plaintiff. Wasden
v. Seaboard Coast Line Railroad Co., 474 So.2d. 825 (Fla. 2d DCA 1985), rev. den
484 So.2d. 9 (Fla. 1986); Moore v. Taylor Concrete & Supply Co. Inc., 553 So.2d
787 (Fla. Ist DCA 1989), Blue Grass Shows. Inc. v. Collins, 614 2d. 626 (Fla. 1st
DCA 1993); rev. den. 624 So.2d. 264 (Fla. 1993); Nelson v. Reliance Insurance Co.,
368 So.2d. 361 (Fla. 4th DCA 1978); Riley v. Willis 585 So.2d. 1024 (Fla. 5th DCA
1991),

That defendant and its witness shall not mention, comment, reference, or state31.

personal opinions about the merits of the case, the credibility of plaintiff and its
witnesses, or the culpability of the Plaintiff and patient. Wasden v. Seaboard Coast
Line Railroad. Co.,474 So.2d. 825 (Fla. 2d DCA 1985) rev. den. 484 So.2d 9 (Fla.
1986); Moore v. Tavlor Concrete & Supply, Inc., 553 So.2d. 787 (Fla. 1st DCA
1993), rev. den. 624 So.2d. 264 (Fla. 1993); Nelson v. Reliance Insurance Co., 368
So.2d. 361 (Fla. 4th DCA 1978), Riley v. Willis, 585 So.2d.1024 (Fla. 5th DCA
1991); and Sacred Heart Hospital of Pensacola v. Stone, 650 So.24 676 (Fla. 1st DCA1995).
That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions and be

prohibited from introducing or referring to the traffic citation as a result of the accident. Section
316.650(9), Florida Statutes, prohibits introduction of a traffic citation into evidence.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
opinions or records of expert witnesses not before the jury unless said opinion or
records were relied upon in reaching and confirming the diagnosis of the Plaintiff's
patient.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
opinions or records of expert witnesses not before the jury regarding medical records
that have been ruled as inadmissible to backdoor inadmissible records into evidence.
Specifically, allowing an expert to comment on his review of non-admissible medical
records. Erwin v. Todd, 699 So.2d. 275 (5th DCA 1997).

That the Defendant, its attorneys, or any of its witnesses be prohibited from

mentioning, commenting, suggesting, referring to or asking any questions regarding35

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the time period or circumstances under which the Plaintiff hired an attorney. Watson
v. Builders Square_563 So.2d. 721 (Fla. 4th DCA 1990)

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that any
recovery by this patient will not be subject to federal income tax or any other form of
taxation. Good Samaritan Hospital v. Savior, 495 So.2d. 782 (Fla. 4th DCA 1986);
Comfort Makers, Inc., v. The Estate of Kenton, 515 So.2d 1384 (Fla. Sth DCA
1987).

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
"crowded courtrooms" or identifying either directly or implicitly this case as being
the type of case that causes delays or backlogs in the court systems. Stokes v. Wet'N
Wild. Inc., 523 So.2d.181 (Fla. 5th DCA 1988).

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions to an
“insurance crisis.” Davidoff v. Segret, 551 So.2d 1274 (4th DCA 1989).

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions any prior
injuries, diseases, conditions or illnesses which are wholly disassociated from the
Plaintiff's patient’s condition at issue and which the Defendant cannot medically
relate or associate and relate to the Plaintiff's patient’s present condition. Zabner v.
Howard Johnson’s Inc. of Florida, 227 So.2d 543 (Fla. 4th DCA 1969).

That the Defendant, its attorneys, or any of its witnesses be prohibited frommentioning, commenting, suggesting, referring to or asking any questions relating to
whether the patient has been involved in any other accidents, or that the patient
suffered any unrelated injury or illness or the effects thereof. Permanent impairment
ratings from prior claim were inadmissible. Colvin v. Williams, 564 So.2d 1249 (Fla.
4th DCA 1990). Ina PIP case the issue of an impairment rating would be unduly
confusing and misleading to the jury. Samuel Mason v. United, Case number 08-
18814 COCE 53 (Fla. Broward Cty Court 2009, Judge Lee); Stand-Up MRI aao Ana
Moreno y. United Auto, Case Number 08-002722 COCE 52, Zabner v. Howard
Johnson's Inc. of Florida, 227 So.2d 543 (Fla. 4th DCA 1969). The trial court
granted a motion in limine. The appellate Court held the question of prior injuries
was relevant this inquiry could have been conducted without reference to the use of
permanent impairment ratings in connection with litigation. Furthermore, the law is
not clear on whether the evidence of a separate lawsuit is proper evidence in a PIP
claim. In Zenchak v. Kaeufer, 612 So.2d 725, 727 (Fla. 4th DCA 1993), the Fourth
DCA held that testimony of such evidence is proper when it is relevant to a present
injury. On the other hand, in Colvin v. Williams, 564 So.2d 1249, 1250-51 (Fla. 4th
DCA 1990) the court found that allowing evidence of an impairment rating was
reversible error where its only purpose is to suggest separate litigation. However, this
case is distinguishable from Zenchak because in that case the plaintiff's past behavior
in a previous lawsuit “was relevant to determine the extent of any future injury.” 612
So.2d at 727. In contrast, here, the defense is trying to show that the possibility of a
future lawsuit could be another motive for alleging an injury and not that any past

injury had a bearing on her current or future condition. Under Colvin, evidence of an40

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impairment rating to show that a personal injury claim exists is not permissible
evidence. 564 So.2d at 1250

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions relating to
the effect or results of a claim, suit or judgment upon insurance rates, premiums, or
charges, either generally or as particularly applied to the Defendant, as a result of this
lawsuit or any other lawsuit. Davidoff v. Segret, 551 So.2d. 1274 (4th DCA 1989).
That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions relating to
encouraging the jury to “send a message” by its verdict to act as the voice of the
community or to use its verdict to punish the plaintiff and patient. Eagle- Picher
Industries. Inc. v. Cox. 481 So.2d. 517 (Fla. 3rd DCA 1985); Florida Crushed Stone
Co. v. Johnson, 546 So.2d. 1102 (Fla. Sth DCA 1989); Brumage v. Plummer, 502
So.2d. 966 (Fla. 3rd DCA 1987); Davidoff v. Segret, 551 So.2d. 1274 (Fla. 4th DCA
1989); and Sacred Heart Hospital of Pensacola v. Stone, 650 50.24 676 (Fla. ist DCA1995).
That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions in the form
of degrading or humiliating the Plaintiff, patient or his counsel by referring to them as
“greedy” or “liars” or “ridiculous” or other terms to demean Plaintiff or its lawyers.
Ryan vy. State, 457 So.2d. 1084 (Fla. 4th DCA 1984); Kendall Skating Centers, Inc.,
v. Martin, 448 So.2d.1137 (Fla. 3rd DCA 1984); Hartford Acc. and Indemn. Co. v.
Ocha, 472 So.2d. 1338 (Fla. 4th DCA 1985); Clay y. Thomas, 363 So.2d. 588 (Fla.

4th DCA 1978); Stokes v. Wet ‘N Wild. Inc., 523 So.2d. 181 (Fla. 5th DCA 1988);43.

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Sacred Heart Hospital of Pensacola v. Stone, 650 So.2d 676 (Fla. 1st DCA1995).

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions accusing
patient's medical experts of perjury, or accusing Plaintiffs counsel of fraud or
unethical conduct. Venning v. Roe, 616 So.2d. 604 (Fla. 2d DCA 1993), Kaas v.
Atlas Chemical Company, 623 So.2d. 525 (Fla. 3rd DCA 1993), Stokes v. Wet 'N
Wild. Inc., 523 So.2d. 181 (Fla. 5th DCA 1988) and Sacred Heart Hospital of
Pensacola v. Stone, 650 So.24 676 (Fla. 1st DCA1995)

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions challenging
Plaintiffs counsel to explain to the jury why it did not call certain witnesses, or why
deposed witnesses were not at trial, or making other references to matters outside the
record. Riggins v. Mariner Boat Works, 545 So.2d. 430 (Fla. 2d DCA 1989); and
Sacred Heart Hospital of Pensacola v. Stone, 650 So.2d 676 (Fla. 1st DCA1995).

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions or eliciting
and introducing testimony from any witness where that testimony is not based upon
actual and personal knowledge but is based upon fact in the file be it an index report
or an outside investigation, for which the witness has no personal knowledge, and/or
alluding to any matter that is not relevant to the case or will not be supported by the
evidence, or stating personal opinions regarding the case or the credibility of the
witnesses, all of which is contrary to Rule 4-3-4(e) of the Rules Regulating The

Florida Bar. Silva v. Nightingale, 619 So.2d. 4 (Fla. 5th DCA 1993); Schreier v.46.

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Parker, 415 So.2d. 794 (Fla. 3rd DCA 1982); Pippin v. Latosynski, 622 So.2d 566,
569 (Fla. Ist DCA 1993) and Sacred Heart Hospital of Pensacola v. Stone, 650 So.2d
676 (Fla. Ist DCA1995),

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that would
permit its expert witnesses bolster their opinions by referring to articles. The general
tule is that authoritative publications can only be used during the cross-examination
of an expert and not as direct testimony. Erwin v. Todd, 699 So.2d. 275 (Sth DCA
1997),

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that some
improper or illegal relationship exists between or among the medical providers or
between the plaintiff and its patients or among the medical providers or and its
attorneys.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, making any statement, suggesting, referring to or asking
any questions relating to their experience that the Plaintiff does not pursue this patient
and/or other patients for payment of plaintiffs bills, when the bills are not awarded,
for the deductible and/or the bills that are in excess of the available PIP benefits.
That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that this
patient did not receive treatment but yet plaintiff billed defendant for treatment, and

that plaintiff is committing fraud regarding to the treatment that defendant is being50.

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billed for and that its damages are its investigation expenses.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
this patient's treatment with other medical providers who are not before the Court in
an attempt to distract the Jury from the services at issue

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
this patient's employment and type of work as pertaining to his/her injuries without a
medical opinion supporting the inquiry.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions inquiring
of the witnesses as to legal interpretations of both Florida law and policy of insurance
in question. The Defendant’s witnesses cannot be asked to interpret what they think
the policy says. These questions impose upon the duties of both the Court and the
jury and are improper questions for fact witnesses in this case.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions concerning
any complaints with any board or department in this State of this patient's treating
physicians.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions instructing
the jury on the provisions of the no-fault statute and the responsibility of the

insurance carriers under the statute and how much fraud there is regarding PIP, and55.

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any mention of the word “fraud.”

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions or
instructing the jury that a second opinion is required under PIP.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions or
statements that defendant has nothing it is required to prove as this invades the
province of the Court as to instructions on burden of proof.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that
plaintiff and plaintiffs counsel are pressing the case to gouge the defendant for fees.
That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions to the
treating physician or the Plaintiffs records custodian regarding why the patient in this
case stopped treating and the fact that the patient stopped treating without a
corresponding reference in the medical file already produced to the Defendant.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions regarding
the actual costs of medical supplies or devices. The issue in this case is whether the
charges for medical services were reasonable.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions that the

Plaintiff did not use the proper CPT codes to bill for the patient's medical treatment61

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and/or that Plaintiff did not utilize the CPT codes properly. Such issues are required
to be raised as affirmative defenses because they are above and beyond the statutory
definitions of related, medically necessary and reasonable in price provisions
contained under the Florida Motor Vehicle No-Fault Law.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions to any
allegations of improper coding as no issue concerning coding issue has been raised in
the pleadings.

That the Defendant, its attorneys, or any of its witnesses be prohibited from
mentioning, commenting, suggesting, referring to or asking any questions or make
any reference to any allegations of (a) improper recordkeeping or (b) the records do
not adequately document the claimed injuries or (c) the records do not sufficiently
document the treatment rendered, as said issues were not raised in the pleadings, nor
raised as a defense, nor raised in presuit correspondence.

Any mention, comment, reference, suggestion or question regarding use of or quoting
from the police report (ie amount of property damage)

No references made that the claim or treatment “smells funny” or any personal
commentary that is not supported by the evidence. Claims do not as a matter of fact
do not emanate any type of odor despite the highly receptive olfactory senses of
members of the Defense witness and/or counsel

Any mention, comment, reference, suggestion, quoting or question regarding any
detail as to how the accident occurred with the treating doctor. Said testimony calls

for hearsay and any mention even with an objection will present the Plaintiff unfairly66.

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as more prejudicial before the jury

Any mention, comment, reference, suggestion, quoting or question using medical
records from other medical providers to impeach or find inconsistencies with what the
patient said unless those records have been introduced into evidence. (ie using
complaints patient made to massage, specialist, etc. to impeach or find inconsistencies
with what patient said to treating physician).

Any mention, comment, reference, suggestion, quoting or question regarding new or
unpled defenses, including conditions precedent and that the issues identified in the
pretrial order control the issues in the case. Cooke v. Ins. Co. of North America, 652
So.2d 1154 (Fla. 2d DCA 1995 (r’hrg den.)) ; Sobel v. Jefferson Stores, Inc., 459
So.2d 433 (Fla. 3d DCA 1984); City of Deland v. Miller, 608 So.2d 121 (Fla. 5th
DCA 1992) (pleadings control); Manatee County v. Reardon, 880 So.2d 691 (Fla. 2d
DCA 2004); City Laundry and Linen Supply v. Coster, 465 So.2d 641 (Fla. 1st DCA
1985); Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d | (Fla. 1971); Schrimsher v.
School Bd. of Palm Beach County, 694 So.2d 856 (Fla. 4th DCA 1977); Johnson v.
Johnson, 663 So.2d 663 (Fla. 2d DCA 1995); McKean v. Kloeppel Hotels, Inc., 171
So.2d 552 (Fla. 1st DCA 1965) (parties bound by pleadings); Central Square
Tarragon LLC ¥. Great Divide Ins. Co., 2011 WL 2622382 (Fla. 4th DCA 2011)

No reference to the amount of damage to the vehicle in question

No reference to damages in the police report to either vehicle involved.

No references made that the claim or treatment "smells funny"

No reference to any person not listed on a witness list, especially a family member’s

personal opinions about having to remember the truth.72.

B

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Any mention, comment, reference, suggestion, quoting or question regarding to any
errors or inconsistencies in the medical records or bills being a basis to deny the claim
unless there is evidence admitted at trial that the defendant made such a determination
before the lawsuit was filed.

Any mention, comment, reference, suggestion, quoting or question regarding any
detail as to how the accident occurred with the claimant or the treating doctor.

Any mention, comment, reference, suggestion, quoting or question regarding as to
who referred claimant to any provider.

Any mention, comment, reference, suggestion, or question regarding when or whether
patient retained counsel was "entirely irrelevant" McArthur v. Zdenek, 508 So.2d
408 (Fla. 2nd DCA 1987).

Also no mention that Plaintiff saw lawyer after accident. See Watson vs. Builders
Square, 563 So.2d 721 (Fla. 4th DCA 1990).

Any mention, comment, reference, suggestion, or question regarding if attorney
referred Plaintiff to a particular doctor. Burt v. Geico, 603 So.2d 125 (Fla. 2d DCA
1992)

Any mention, comment, reference, suggestion, or question regarding any new or
unpled defenses, including subliminal defenses.

Any mention, comment, reference, suggestion, or question regarding permanent
impairment ratings from prior claim is inadmissible. Colvin v. Williams, 564 So.2d
1249 (Fla. 4th DCA 1990).

Preventing the defendant from commenting on the Plaintiff's failure to call witnesses

or introduce evidence that the defendant had an opportunity to call or introduce.Halliburton v State, 561 so.2d 248 (Fla. 1990), Lowder v Economic Opportunity
Family Health Center, 680 So.2d 1133 (Fla. 3d DCA 1996).

81 No disparaging opinionated comments regarding PIP that the “medical provider is
using the insurance card as an ATM card.”

82 No disparaging opinionated comments regarding PIP in opening, such as “Welcome
to the wonderful world of PIP where anyone with a minor accident can go to a doctor
and bill $10,000 for medical treatment” or any such personal opinions regarding PIP
by either attorney for the defendant or any witness for the defendant. The Defendant
made a business decision to sell PIP policies with full knowledge of the terms and
conditions. It cannot now come back when it is being sued to disparage the very law
that has made the Defendant millions of dollars. Opinions regarding PIP is reserved
for the opinion pages of the newspapers and the Legislature. If this Defendant has
disparaging opinions regarding PIP, it has the choice to not write such policies or
seek relief in the Legislature.

Allowing the Defendant to introduce any evidence or make any comment regarding the
above matters in the presence of the Jury would be extremely prejudicial to the Plaintiff and
would enflame and confuse the Jury and detract from the true issues and merits in this case.
WHEREFORE, the Plaintiff respectfully requests this Honorable Court to preclude any

mention of these issues together with any and all further relief this Court deems just and proper.CERTIFICATE OF SERVICE

THEREBY CERTIFY that a true and correct copy of the foregoing was served pursuant
to Rule 2.516, Fla. R. Jud. Admin to the person designated by Defendant on the Florida Courts
E-Serve at the stated contact email on the 28TH day of December 2017.

Paul K. Schrier, PA

11098 Biscayne Blvd, Suite 208

Miami, Florida 33161

Phone: 305.893.5500

Facsimile: 305.893.8626

Designated primary e-mail: Paul@paulschrierpa.com

Designated secondary e-mail: David@paulschrierpa.com
/s/ Paul K. Schrier, Esq.

Paul K. Schrier, Esquire
Florida Bar No.: 622590