Sterbenz et al v. Anderson
Filing
132
ORDER: Plaintiff's Daubert Motion to Exclude the Testimony of Randolph Blaine 93 is denied;Plaintiff's Motion in Limine to Limit Defendant's Theory of the Case and Evidence to that Which She Disclosed in Discovery 94 is denied; an d Plaintiff's Motion for an Order Requiring Defendant to Reimburse Kenneth Teebagy, P.E. 97 is granted as unopposed. Defendant is ordered to reimburse Mr. Teebagy's fees and costs in the amount of $1,668.96 on or before November 16, 2012. The Court defers ruling on Defendant's Motion for Determination of Spoliation of Evidence and Appropriate Sanctions 92 until trial;Defendant's Motion in Limine to Preclude Cumulative and Unreliable Testimony 95 is denied; Defenda nt's Motion in Limine Regarding Plaintiff's Claimed Lost Wages Due to the Negligence of Defendant 98 is granted; with the caveat explained herein, Defendant's Motion in Limine Regarding Mrs. Anderson's Claimed "Memory Loss& quot; 99 is denied; Defendant's Motion in Limine to Prohibit Plaintiff from Calling Christian Shallo as a Witness at the Trial of this Matter 100 is denied; and Defendant's Motion in Limine to Require Plaintiff to Elect his Damage Remedy Prior to the Trial of this Matter 101 is denied. Signed by Judge Virginia M. Hernandez Covington on 11/2/2012. (MEB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTOPHER A. STERBENZ,
Plaintiff,
v.
Case No.
8:11-cv-1159-T-33TBM
LOIS N. ANDERSON,
Defendant.
__________________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Christopher
A.
Sterbenz’s
Daubert
Motion
to
Exclude
the
Testimony of Randolph Blaine (Doc. # 93), Motion in Limine to
Limit Defendant's Theory of the Case and Evidence to that
Which She Disclosed in Discovery (Doc. # 94), and Motion for
an Order Requiring Defendant to Reimburse Kenneth Teebagy,
P.E. (Doc. # 97), all filed on October 15, 2012.
Also before the Court is Defendant Lois N. Anderson’s
Motion
for
Appropriate
Determination
Sanctions
of
(Doc.
Spoliation
#
92),
of
Motion
Evidence
in
Limine
and
to
Preclude Cumulative and Unreliable Testimony (Doc. # 95),
Motion in Limine Regarding Plaintiff’s Claimed Lost Wages Due
to the Negligence of Defendant (Doc. # 98), Motion in Limine
Regarding Mrs. Anderson’s Claimed “Memory Loss” (Doc. # 99),
Motion in Limine to Prohibit Plaintiff from Calling Christian
Shallo as a Witness at the Trial of this Matter (Doc. # 100),
and Motion in Limine to Require Plaintiff to Elect his Damage
Remedy Prior to the Trial of this Matter (Doc. # 101), all
filed on October 15, 2012.
Excluding Plaintiff’s motion for reimbursement of Mr.
Teebagy,
Defendant
filed
responses
in
opposition
to
Plaintiff’s motions on October 24, 2012. (Doc. ## 108, 109).
Plaintiff
filed
a
response
in
opposition
to
each
of
Defendant’s motions on October 25, 2012. (Doc. ## 110-115).
For the reasons that follow, the Court denies Plaintiff’s
Daubert motion (Doc. # 93), denies Plaintiff’s motion in
limine (Doc. # 94), grants as unopposed Plaintiff’s motion for
reimbursement of Mr. Teebagy (Doc. # 97), defers ruling on
Defendant’s motion for spoliation sanctions (Doc. # 92),
denies Defendant’s motion in limine to preclude cumulative and
unreliable testimony (Doc. # 95), grants Defendant’s motion in
limine regarding Plaintiff’s claimed lost wages (Doc. # 98),
denies Defendant’s motion in limine regarding Defendant’s
claimed “memory loss” (Doc. # 99), denies Defendant’s motion
in limine to prohibit Plaintiff from calling Christian Shallo
as a witness (Doc. # 100), and denies Defendant’s motion in
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limine to require Plaintiff to elect his damage remedy prior
to trial (Doc. # 101).
I.
Plaintiff’s Daubert Motion to Exclude the Testimony of
Randolph Blaine (Doc. # 93)
A. Legal Standard
The district court has broad discretion to determine the
admissibility of evidence, and the appellate court will not
disturb
this
discretion.
Court’s
judgment
absent
a
clear
abuse
of
United States v. McLean, 138 F.3d 1398, 1403
(11th Cir. 1998); see also United States v. Jernigan, 341 F.3d
1273, 1285 (11th Cir. 2003)(“Inherent in this standard is the
firm recognition that there are difficult evidentiary rulings
that turn on matters uniquely within the purview of the
district court, which has first-hand access to documentary
evidence and is physically proximate to testifying witnesses
and the jury.”).
Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 597 (1993), this Court serves a gatekeeper role
in
evaluating
testimony.
137,
141
the
admissibility
of
expert
evidence
and
In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
(1999),
the
Court
explained
“Daubert’s
general
holding-setting forth the trial judge’s general ‘gatekeeping’
obligation-applies not only to testimony based on ‘scientific’
-3-
knowledge, but also to testimony based on ‘technical’ and
‘other specialized’ knowledge.” Id. Federal Rule of Evidence
702, governing the admissibility of expert evidence provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge,
skill,
experience,
training,
or
education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and
(3) the witness has applied the principles and
methods reliably to the facts of the case.
The Eleventh Circuit has adopted a three part analysis for
determining whether expert testimony is admissible under Daubert
and Federal Rule of Evidence 702.
Under this analysis, expert
evidence is admissible if the court finds: (1) the expert is
competent and qualified to testify regarding the matters that he
intends to address; (2) the methodology by which the expert reaches
his conclusions is sufficiently reliable; and (3) the expert,
through scientific, technical or specialized expertise, provides
testimony that will assist the trier of fact to understand the
evidence or determine a fact in issue.
v.
Hurel-Dubois
UK
Ltd.,
326
F.3d
See Quiet Tech. DC-8, Inc.
1333,
1340-41
(11th
Cir.
A formal Daubert hearing is not necessary in all cases.
Cook
2003)(citations omitted).
v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1113 (11th Cir.
-4-
2005)(the trial court is under no obligation to hold a Daubert
hearing); United States v. Frazier, 387 F.3d 1244, 1274 n. 4 (11th
Cir. 2004)(“In some cases, an evidentiary hearing is unnecessary
because the parties’ reciprocal submissions are sufficient to
enable the court to resolve the reliability issue without taking
live testimony.”).
Neither party has requested a Daubert hearing
and the Court determines that a Daubert hearing is not required to
resolve the issues presented in Plaintiff’s motion.
B. Analysis
Plaintiff does not dispute that “Mr. Blaine has the requisite
qualifications to testify as an engineer.” (Doc. # 93 at 1).
Accordingly, the Court finds that the first Daubert factor is not
in dispute, and, thus, is satisfied here.
Rather, Plaintiff avers that Mr. Blaine’s methodology is
unreliable and that his testimony would not aid the jury in
understanding the issues.
Specifically, Plaintiff argues that Mr.
Blaine’s methodology is unsound because he did not perform any site
inspection of the property in question and because he failed to
consider relevant “facts” in his report.
The law grants a district court “substantial discretion in
deciding how to test an expert’s reliability and whether the
expert’s relevant testimony is reliable.” United States v. Majors,
196 F.3d 1206, 1215 (11th Cir. 1999).
-5-
Defendant asserts that Mr.
Blaine’s methodology was “virtually identical to the methodology
employed
by
[Plaintiff’s
experts]”
and
Defendant
details
the
numerous documents Mr. Blaine reviewed during his analysis. (Doc.
# 108 at 5-6).
Defendant, and Mr. Blaine in his affidavit,
acknowledge that he did not inspect the site prior to issuing his
report.
(Doc. # 108; Blaine Aff. Doc. # 107-1 at 2).
However, Mr.
Blaine explains that he did not need to physically inspect the
subject site because “[b]ased on [his] background, training and
experience in the construction and engineering industry,” he was
able
to
obtain
all
necessary
information
documents. (Blaine Aff. Doc. # 107-1 at 3).
base
his
testimony
experience.”
on
“professional
from
the
provided
An expert may properly
studies
or
personal
Kumho Tire Co., Ltd., 526 U.S. at 152 (1999).
The Court concludes that Mr. Blaine’s methodology meets the
reliability test. See Bauman v. Centex Corp., 611 F.2d 1115, 112021 (5th Cir. 1980) (upholding a district court’s admission of
testimony of management consultant and CPA who based his testimony
on a review of company files); Enercomp, Inc. v. McCorhill Pub.,
Inc., 873 F.2d 536, 550 (2d Cir. 1989) (upholding decision of
district
court
admitting
expert
testimony
where
witness
had
considerable experience in the field and where “appellants had
ample opportunity to elicit these facts and argue them to the
jury”); Firestone Tire & Rubber Co. v. Pearson, 769 F.2d 1471, 1483
-6-
(10th
Cir.
1985)
(noting
that
where
plaintiff
argued
that
accountant expert witness testified on “‘speculation derived from
incomplete data,’ admission of his testimony and opinions was not
an abuse of discretion when ‘he fully disclosed any inadequacies in
the information he was relying on and he was subjected to a
thorough
cross-examination.’”)(quoting
Scholz
Holmes,
Inc.
v.
Wallace, 590 F.2d 860, 863 (10th Cir. 1979)).
Plaintiff also contends that Mr. Blaine’s testimony is not
reliable because he does not consider all relevant “facts” in his
report.
(Doc. # 93 at 1).
However, an expert’s conclusions
“should not be excluded because he or she has failed to rule out
every possible alternative cause.” See Westberry v. Gislaved Gummi
AB, 178 F.3d 257, 265 (4th Cir. 1999).
“facts”
Plaintiff
cites
are
actually
Furthermore, many of the
conclusions
reached
by
Plaintiff’s experts, and as such, Mr. Blaine is not required to
consider these in his analysis.1
Plaintiff’s objections directed
to the reliability of Mr. Blaine’s conclusions go to the weight of
his testimony, rather than its admissibility.
See Maiz, 253 F.3d
at 669 (noting that objections to methodology go to weight and
1
For example, Plaintiff criticizes Mr. Blaine’s
report for failing to consider Mr. Koning’s conclusion that
“[a]n item so flushed from Plaintiff’s unit would lack
‘adequate vertical velocity’ and such flushed item ‘would most
likely lodge in the horizontal piping immediately behind the
integral trap of the water closet.’” (Doc. # 93 at 23)(quoting Koning Expert Report Doc. # 63-6 at 13).
-7-
sufficiency, not admissibility). Accordingly, this Court concludes
that
Mr.
Blaine’s
proffered
opinions
satisfy
the
reliability
requirement for admissibility.
Plaintiff also contends that Mr. Blaine’s testimony is not
admissible because it will not aid the trier of fact.
Under Rule
702, properly qualified experts may testify in a given field if
their testimony “will assist the trier of fact to understand the
evidence or to determine a fact in issue.”
An expert’s testimony
will assist the trier of fact when it offers something “beyond the
understanding and experience of the average citizen.”
United
States v. Paul, 175 F.3d 906, 911 (11th Cir. 1999)(quoting United
States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985)).
The Court
finds that Mr. Blaine’s testimony, which is based on his extensive
experience and knowledge in the construction and engineering fields
and his analysis of relevant materials in this case, will assist
the trier of fact in determining facts in issue, particularly
regarding the cause of the sewer blockage.
TCBY Sys., Inc. v. RSP
Co., Inc., 33 F.3d 925, 929 (8th Cir. 1994).
Accordingly, the Court concludes that Mr. Blaine’s testimony
satisfies the Daubert test and is admissible at trial and denies
Plaintiff’s motion accordingly.
II.
Motion in Limine to Limit Defendant's Theory of the Case and
Evidence to that Which She Disclosed in Discovery (Doc. # 94)
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Plaintiff contends that Defendant “produced only 11 pages of
non-responsive documents” in discovery and “brief, non-responsive
answers to interrogatories.” (Doc. # 94). In his motion in limine,
Plaintiff argues that Defendant’s theory of the case and evidence
should be limited to that which she disclosed in discovery.
In
response, Defendant argues that all relevant documents have been
disclosed or produced to Plaintiff and that Defendant has not
withheld anything she intends to rely upon at trial.
Further,
Defendant avers that she does not intend to rely on any defense not
included in her Answer & Affirmative Defenses.
The Court agrees with Defendant that Plaintiff’s motion is due
to be denied. The Court notes that there is no evidence that
Defendant’s interrogatory responses with which Plaintiff takes
issue were untruthful or concealed information from Plaintiff.
Moreover, although Plaintiff claims that Defendant’s discovery
responses were non-responsive and insufficient, Plaintiff never
moved
to
compel
better
responses
to
his
discovery
requests.
Finally, Plaintiff does not specify any specific theories of the
case or evidence he would have the Court exclude; thus, it is
unclear how the Court would actually enforce the ruling Plaintiff
seeks.
For these reasons, the Court denies Plaintiff’s motion in
limine to limit Defendant’s theory of the case and evidence to that
which she disclosed in discovery.
-9-
III. Motion for an Order Requiring Defendant to Reimburse Kenneth
Teebagy, P.E. (Doc. # 97)
Finally, Plaintiff requests the Court to order Defendant to
reimburse expert witness Kenneth Teebagy’s fees and costs in the
amount of $1,668.96, pursuant to an agreement by Defendant’s former
counsel to do so.
Defendant has not filed a response to this
motion, and, therefore, the Court considers the motion unopposed.
Accordingly, the Court grants the motion and orders Defendant to
reimburse Mr. Teebagy’s fees and costs in the amount of $1,668.96
on or before November 16, 2012.
IV.
Motion for Determination of Spoliation
Appropriate Sanctions (Doc. # 92)
of
Evidence
and
Defendant moves the Court for an order finding that Plaintiff
has spoliated evidence in this case, specifically the garment
retrieved from Plaintiff and Defendant’s shared sewer line, and
that sanctions are warranted.
(Doc. # 92 at 1).
Defendant
requests the Court to dismiss the case, but in the event that the
Court finds dismissal unwarranted, to enter an order excluding
Plaintiff’s experts from testifying at trial and/or issue a jury
instruction on spoliation of evidence which raises a presumption
against Plaintiff. Id. at 5.
In response, Plaintiff states that he “cannot represent to the
Court on personal knowledge that there are -- or are not -- any
remaining
traces
of
the
sewage
-10-
backup,
including
the
feces-
encrusted clothing fished out of the sewer.” (Doc. # 115 at ¶ 13).
Further, Plaintiff contends that he never instructed anyone to
discard any evidence in this case.
Id.
Accordingly, the Court
cannot determine at this point whether any evidence has or has not
been spoliated and what type of sanction may be warranted.
The
Court, thus, defers ruling on the motion until trial when the
presence or
absence
of
the
relevant
garment
establish whether or not it has been destroyed.
will
reveal
and
In the event that
the Court determines that sanctionable spoliation has occurred, the
Court advises that it will not be inclined to impose the requested
sanctions of dismissal or exclusion of experts, but will entertain
arguments as to the efficacy of an appropriate jury instruction.
V.
Motion in Limine to
Testimony (Doc. # 95)
Preclude
Cumulative
and
Unreliable
Defendant requests an order limiting the number of expert
witnesses Plaintiff may call to testify as to the potential source
of the garment retrieved from the sewer pipe in this matter. (Doc.
# 95 at 1). Defendant claims that Plaintiff’s experts, Mr. Teebagy
and Mr. Koning, as well as Mr. Sean Mason, will present cumulative,
and therefore, prejudicial, testimony as to the source of the sewer
line blockage. Defendant also contends that Mr. Mason was not
sufficiently disclosed by Plaintiff as an expert witness during
-11-
discovery and that he does not meet the Daubert standard to qualify
as an expert witness.
In response, Plaintiff explains that Mr. Mason was identified
in Plaintiff’s initial disclosures by his first name and his
employer’s name, because Plaintiff did not know Mr. Mason’s last
name at that time. (Doc. # 112 at 2).
Plaintiff asserts that Mr.
Mason was disclosed in Plaintiff’s expert disclosures, again by
identification
of
his
employer,
on
April
16,
2012.
Id.
Accordingly, the Court finds that Mr. Mason was sufficiently
disclosed to Defendant as a potential expert witness to allow him
to testify at trial.
Regarding the admissibility of Mr. Mason’s testimony as an
expert, the Court finds that Mr. Mason’s 10 years of experience in
the plumbing profession are sufficient to qualify him as an expert
in the plumbing field and that his testimony, as the person who
retrieved the garment from the blocked sewer line, will aid the
jury in determining relevant facts in this case. Where Mr. Mason’s
methods or conclusions may be lacking, such will go to Mr. Mason’s
credibility
and
Defendant
will
have
the
opportunity
through
“[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof” to “attack[] shaky
but admissible evidence.”
Daubert 509 U.S. at 596.
-12-
Finally, regarding the potential cumulative nature of the
experts’ testimony, Plaintiff points out several ways in which the
experts’ testimony and methods are different enough to allow each
to testify at trial.
(Doc. # 112 at 4-6).
Accordingly, the Court
will deny Defendant’s motion and will allow Plaintiff’s experts to
testify.
However, the Court reserves the right to revisit the
issue
and
if
as
necessary
during
trial
in
the
event
that
Plaintiff’s experts’ testimony becomes unnecessarily or overly
redundant and impedes the progress of the trial.
VI.
Motion in Limine Regarding Plaintiff’s Claimed Lost Wages Due
to the Negligence of Defendant (Doc. # 98)
Next, Defendant moves for an order in limine precluding
Plaintiff from introducing evidence or testimony that he has “lost
wages” due to the claims at issue in this case.
Defendant argues
that under Florida law, lost wages are not recoverable for claims
based solely on injury to property, absent any physical injury or
illness.
(Doc. # 98 at ¶ 7).
The Court agrees and finds that
Plaintiff is not entitled to recover any lost wages he has suffered
during his prosecution of this case.
Had Plaintiff hired an attorney to represent him, he would not
have “lost” at least a portion of his claimed lost wages while
prosecuting this action because his attorney would have appeared in
his place, allowing Plaintiff to continue earning his wages during
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that time.
Thus, Plaintiff is essentially trying to recover
attorney’s fees without a contractual or statutory basis.
The
Court is concerned that allowing Plaintiff to recover his “lost”
wages here for time spend litigating this claim would open the door
for all future plaintiffs to recover damages for their time spent
out of work in depositions, hearings, trial, etc. The Court denies
the motion accordingly.
VII. Motion in Limine Regarding Mrs. Anderson’s Claimed “Memory
Loss” (Doc. # 99)
Defendant next requests the Court to prevent Plaintiff from
“mentioning,
inferring
or
referring
to
[Defendant’s]
‘memory loss’ at the trial of this matter.”
claimed
(Doc. # 99 at 1).
Defendant contends that she has not been diagnosed with any medical
condition regarding memory loss and is not receiving any treatment
for memory loss or any mental or physical infirmities. Id.
In
response, Plaintiff points out several instances from Defendant’s
deposition which Plaintiff contends demonstrate Defendant’s memory
loss and argues that Defendant’s memory is a vital part of her
credibility as a witness.
As there is no evidence that Defendant has been diagnosed with
any medical condition causing memory loss, the Court determines
that Plaintiff should not be allowed to refer to any “memory loss”
on Defendant’s part as though it is a diagnosis, condition, or a
-14-
fact that has been stipulated to or already established.
However,
as
witness,
Defendant’s
memory
goes to
her
credibility as
a
Plaintiff should be allowed to freely and extensively question
Defendant and other relevant witnesses as to Defendant’s memory,
and,
with
the
caveat
explained
above,
the
Court
will
deny
Defendant’s motion.
VIII.
Motion in Limine to Prohibit Plaintiff from Calling
Christian Shallo as a Witness at the Trial of this Matter
(Doc. # 100)
Defendant next moves for an order prohibiting Plaintiff from
calling Christian Shallo as a witness, because Defendant contends
that “Defendant has stipulated to all of the facts and opinions
regarding the costs of repair that Plaintiff intends to elicit from
Mr. Shallo at the trial of this matter.”
(Doc. 100 at 1).
However, Plaintiff explains in response that Mr. Shallo’s expected
testimony will go beyond those matters to which Defendant has
stipulated including “the hazardous nature of the contamination .
. ., the fact that the contamination began 30 days prior to the
date of its discovery on May 1, 2011, refuting any implication that
the Plaintiff’s unit, which was vacant at this time, was the source
of the blockage, the fact that the blockage was not long-standing,
and the description of the immediate health hazard . . . and the
facts surrounding the necessity for extreme biohazard protection
measures to protect the cleanup workers.” (Doc. # 113 at 2).
-15-
Based
on
this,
the
Court
is
satisfied
that
Mr.
Shallo’s
expected
testimony extends beyond those matters to which Defendant has
previously
stipulated
such
that
his
testimony
will
not
be
unnecessary, irrelevant, or cumulative, and denies the motion
accordingly.
IX.
Require Plaintiff to Elect his Damage Remedy Prior to the
Trial of this Matter (Doc. # 101)
Finally, Defendant argues that Plaintiff should be required to
elect his damage remedy -- either the cost of restoration of the
property or the diminution in value of his property -- prior to
trial because according to Defendant, Plaintiff cannot collect both
under Florida law. Defendant in response contends that Florida law
allows him to recover both the cost of restoration and “stigma”
damages, equal to the “reduction in value caused by contamination
resulting from the increased risk associated with the contaminated
property.” (Doc. # 110 at 2)(quoting Finklestein v. Dep’t of
Transp., 656 So. 2d 921, 924 (Fla. 1995)).
Although there appears to be little relevant law on the
subject, the case of Bisque Assocs. v. Towers of Quayside, 639 So.
2d 997 (Fla. 3d DCA 1994), provides instruction. As explained in
Bisque, under Florida law, where an injury to property is only
temporary in nature, damages are limited to the costs of repair and
restoration, unless such costs of repair exceed the value of the
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property
in
its
original
condition
or
where
restoration
is
impracticable, in which case the measure of damages is diminution
in value.
Id. at 999.
However, where a property injury is shown
to be permanent in nature, due to “permanent impairment of market
value” for example, a plaintiff may in fact recover “stigma”
damages in addition to the cost of repair.
Id.
Pursuant to
Bisque, the question of whether a property injury is temporary or
permanent in nature, and thus, what damages are recoverable, is a
question of fact for determination by the jury if the pleadings
allow.
Id.
The Court sees no reason here why the pleadings would
not allow the jury to determine such issue, and accordingly, the
Court determines that Plaintiff is not required to elect his remedy
prior to trial, but rather, the issue is appropriately reserved for
determination by the jury.
Thus, the Court denies Defendant’s
motion in limine accordingly.
Accordingly, it is hereby
ORDERED, ADJUDGED and DECREED:
(1)
Plaintiff’s
Daubert
Motion
to
Exclude
the
Testimony
of
Randolph Blaine (Doc. # 93) is denied.
(2)
Plaintiff’s Motion in Limine to Limit Defendant's Theory of
the Case and Evidence to that Which She Disclosed in Discovery
(Doc. # 94) is denied.
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(3)
Plaintiff’s
Motion
for
an
Order
Requiring
Defendant
to
Reimburse Kenneth Teebagy, P.E. (Doc. # 97) is granted as
unopposed.
Defendant is ordered to reimburse Mr. Teebagy’s
fees and costs in the amount of $1,668.96 on or before
November 16, 2012.
(4)
Ruling
on
Defendant
Determination
of
Lois
Spoliation
N.
of
Anderson’s
Evidence
and
Motion
for
Appropriate
Sanctions (Doc. # 92) is deferred until trial.
(5)
Defendant’s
Motion
in
Limine
to
Preclude
Cumulative
and
Unreliable Testimony (Doc. # 95) is denied.
(6)
Defendant’s Motion in Limine Regarding Plaintiff’s Claimed
Lost Wages Due to the Negligence of Defendant (Doc. # 98) is
granted.
(7)
With the caveat explained herein, Defendant’s Motion in Limine
Regarding Mrs. Anderson’s Claimed “Memory Loss” (Doc. # 99) is
denied.
(8)
Defendant’s
Motion
in
Limine
to
Prohibit
Plaintiff
from
Calling Christian Shallo as a Witness at the Trial of this
Matter (Doc. # 100) is denied.
(9)
Defendant’s Motion in Limine to Require Plaintiff to Elect his
Damage Remedy Prior to the Trial of this Matter (Doc. # 101)
is denied.
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DONE and ORDERED in Chambers, in Tampa, Florida, this 2nd day
of November, 2012.
Copies to: All Counsel of Record
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