Valentin v. Salson Logistics, Inc. et al

Filing 58

ORDER: Plaintiff Erika Valentin's Motion in Limine (Doc. # 35) is GRANTED in part and DENIED in part as set forth herein. Signed by Judge Virginia M. Hernandez Covington on 1/7/2022. (DMD)

Case 8:20-cv-02741-VMC-CPT Document 58 Filed 01/07/22 Page 1 of 10 PageID 431

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ERIKA VALENTIN,
Plaintiff,
v.

Case No. 8:20-cv-2741-VMC-CPT

SALSON LOGISTICS, INC.,
and TERRY MAYS,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff Erika Valentin’s Motion in Limine (Doc. # 35), filed
on

October

29,

2021.

Defendants

Terry

Mays

and

Salson

Logistics, Inc. responded on November 12, 2021. (Doc. # 37).
For the reasons that follow, the Motion is granted in part
and denied in part.
I.

Legal Standard
“A

motion

in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,
remains subject to reconsideration by the court throughout
the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06–
md–1769–ACC-DAB, 6:07–cv–15733–ACC-DAB, 2009 WL 260989, at *1
(M.D. Fla. Feb. 4, 2009). “The real purpose of a motion in
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limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence
which may irretrievably [a]ffect the fairness of the trial.”
Id. (internal quotation omitted). “A court has the power to
exclude evidence in limine only when evidence is clearly
inadmissible

on

all

potential

grounds.”

Id.

(internal

quotation omitted).
“A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field
Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012) (citing
Royal Indem. Co. v. Liberty Mut. Fire Ins. Co., No. 07–80172–
CIV, 2008 WL 2323900, at *1 (S.D. Fla. June 5, 2008)). “Denial
of a motion in limine does not necessarily mean that all
evidence contemplated by the motion will be admitted at
trial.” In re Seroquel, 2009 WL 260989, at *1 (internal
quotation marks omitted). “Instead, denial of the motion
means the court cannot determine whether the evidence in
question should be excluded outside the trial context.” Id.
“The court will entertain objections on individual proffers
as they arise at trial, even though the proffer falls within
the scope of a denied motion in limine.” Id.

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The district court has broad discretion to determine the
admissibility of evidence, and the appellate court will not
disturb

this

Court’s

judgment

absent

a

clear

abuse

of

discretion. 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.”).
Federal Rule of Evidence 401 defines “relevant evidence”
as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.”

Fed.

R.

Evid.

401.

Irrelevant

evidence

is

inadmissible. Fed. R. Evid. 402. All relevant evidence is
admissible

unless

“its

probative

value

is

substantially

outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” Fed. R. Evid. 402, 403; United States
v. Ross, 33 F.3d 1507, 1524 (11th Cir. 1994). Use of Rule 403
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to exclude relevant evidence is an “extraordinary remedy”
whose “major function . . . is limited to excluding matter of
scant or cumulative probative force, dragged in by the heels
for the sake of its prejudicial effect.” United States v.
Grant, 256 F.3d 1146, 1155 (11th Cir. 2001).
II.

Discussion
In

her

Motion,

Valentin

seeks

an

order

excluding

numerous categories of evidence and limiting the testimony of
Defendants’ expert, Jeremy Reimer. The Court will address
these issues one by one.
A.
Fist,

Referral to Physician
Valentin

seeks

to

exclude

any

evidence

or

testimony that Valentin “was referred to any physician or
medical provider by [her] attorney(s)” because “[t]o allow
this type of testimony would unfairly prejudice [her] and has
no probative value to the merits of the case.” (Doc. # 35 at
1). She also argues that this testimony is protected by
attorney-client

privilege.

(Id.).

Defendants

oppose

this

request. (Doc. # 37 at 1-2).
Valentin

is

correct

that

this

testimony

should

be

excluded because the fact that her attorney referred her to
particular medical providers is protected by attorney-client
privilege. See Worley v. Cent. Fla. Young Men’s Christian
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Ass’n, Inc., 228 So. 3d 18, 25 (Fla. 2017) (“[W]e find that
the question of whether a plaintiff’s attorney referred him
or her to a doctor for treatment is protected by the attorneyclient privilege.”); Burt v. Gov’t Emps. Ins. Co., 603 So. 2d
125,

125–26

(Fla.

2d

DCA

[concerning

whether

particular

physician]

1992)

counsel

(“[T]he

second

referred

seeks

question

plaintiff

discovery

of

to

a

confidential

communications constituting her attorney’s advice regarding
this lawsuit. Such advice is not intended to be disclosed to
third parties. The question does not elicit the underlying
fact of whether she saw a particular physician, but rather
elicits whether she saw the physician at her attorney’s
request.”). Thus, the Motion is granted as to this category
of evidence or testimony.
B.
Next,
regarding

Hiring of Attorney
Valentin
the

time

seeks

to

exclude

“[a]ny

period

or

circumstances

testimony

under

which

[Valentin] hired an attorney.” (Doc. # 35 at 2). Defendants
also oppose this request. (Doc. # 37 at 2).
The Court agrees with Defendants that this testimony is
not protected by attorney-client privilege. See Burt, 603 So.
2d at 125 (holding that a question asking when an individual
obtained

counsel

“does

not

violate
5

the

attorney-client

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privilege”); Barr v. Ewing, 774 F. App’x 547, 551 (11th Cir.
2019) (“[R]equiring a litigant ‘to reveal when and with whom
she consulted for the general purpose of discussing possible
legal remedies’ stemming from an injury ‘does not . . .
implicate

the

attorney-client

privilege.’”

(citation

omitted)). Also, the Court does not consider this testimony
irrelevant or unfairly prejudicial. Defendants are correct
that “the background facts of this accident, including the
events following it, are relevant and admissible as its
probative value is not substantially outweighed by the danger
of unfair prejudice, confusion of issues, misleading the
jury, or needless presentation of cumulative evidence.” (Doc.
# 37 at 2).
The Motion is denied as to this category of evidence and
testimony.
C.

Undisclosed Expert Opinions

Valentin

also

seeks

to

exclude

“[a]ny

testimony

by

defense experts regarding opinions that were not previously
disclosed in their depositions or written reports.” (Doc. #
35 at 2).
Defendants have failed to address this request in their
response. Thus, this part of the Motion is unopposed. The
Court grants the Motion and Defendants’ experts may not
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proffer previously undisclosed opinions at trial. See Fed. R.
Civ. P. 37(c)(1) (“Failure to Disclose or Supplement. If a
party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”).
D.

Immigration Status and Driver’s License

Valentin seeks to exclude any evidence or discussion of
her immigration status or the fact that her only driver’s
license was issued in Mexico, rather than the United States.
(Doc. # 35 at 2-3).
Regarding immigration status, Defendants state that they
have

“no

intention

to

call

into

question

[Valentin’s]

immigration status.” (Doc. # 37 at 3). Thus, the Motion is
unopposed as to questions about Valentin’s immigration status
and the Court grants the Motion as to that category of
evidence.
However,
Valentin’s

Defendants

lack

of

a

argue

that

U.S.-issued

evidence

driver’s

regarding

license

and

possession of only a Mexican driver’s license should not be
excluded. (Id. at 2-3). First, Defendants argue this evidence
is relevant because Valentin’s competence as a driver may be
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at issue during trial and her possession of or lack of a
driver’s license relates to that issue. (Id. at 3); see Lopez
v. Wink Stucco, Inc., 124 So. 3d 281, 283 (Fla. 2d DCA 2013)
(“The admissibility of evidence of a violation of a licensing
statute is a question of law that turns on the relevancy of
that evidence as it pertains to the facts of a particular
case. In order for such evidence to be admissible, there must
be

‘a

causal

connection

between

that

violation

and

the

injuries incurred.’ To establish this causal connection the
driver's competence and experience must be placed at issue in
the

case.”

(citations

omitted)).

More

persuasively,

Defendants also insist that “evidence of [Valentin’s] failure
to possess a valid U.S. driver’s license, as well as her
possession of a Mexican driver’s license, are admissible for
impeachment purposes as she testified at deposition that she
possessed a valid U.S. license and omitted her possession of
a Mexican license.” (Id.).
Given the arguable relevance of the driver’s license
evidence and its possible use for impeachment, the Court
denies the Motion as to the driver’s license evidence at this
time. The Court cannot determine outside the context of trial
whether this evidence should be admitted under Rule 403.

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Valentin may raise objections at trial, if appropriate, when
Defendants attempt to introduce this evidence.
E.

Issues with Expert Witness Reimer

Valentin also seeks to limit Defendants’ expert witness
Jeremy Reimer’s testimony. (Doc. # 35 at 3-5). Valentin
primarily attempts to limit Reimer’s expert testimony based
on his qualifications and methodology. Indeed, she argues
that

Reimer’s

methodology

is

unreliable

and

irrelevant

because he “utilizes Medicare Reimbursement Rates as the sole
source for ‘average’ and ‘high’ reimbursements” in opining
that

the

providers

medical
were

bills

charged

unreasonable.

(Id.

by
at

Valentin’s
4).

medical

Additionally,

Valentin argues that Reimer “should not be allowed to testify
as to the necessity or reasonableness of the medical care
provided by [Valentin’s] physicians” because he “is not a
medical doctor.” (Id. at 5).
These arguments should have been raised in a Daubert
motion by the deadline to file Daubert motions, which passed
on August 13, 2021. (Doc. # 15). Because this aspect of the
Motion is an untimely Daubert motion, the Court denies the
Motion as to the attempt to limit Reimer’s testimony based on
his qualifications and methodology.

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To the extent Valentin’s request to exclude Reimer’s
testimony as to “suspicious” billing practices by Valentin’s
medical providers can be interpreted as a proper motion in
limine, the Motion is also denied at this time. The Court
agrees with Defendants that “[n]ot only may Reimer testify on
the

reasonableness

and

necessity

including

the

applicability

testimony

may

also

credibility
witnesses

of
that

be

of

used

of

the

to

[Valentin’s]
CPT

call

[Valentin’s]

treating

have

for

billed

codes

into

bills,

used,

his

question

the

physicians/expert

[Valentin’s]

medical

treatment.” (Doc. # 37 at 7). If appropriate, Valentin may
raise specific objections during Reimer’s testimony at trial
regarding this issue.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Plaintiff Erika Valentin’s Motion in Limine (Doc. # 35)
is GRANTED in part and DENIED in part as set forth herein.
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of January, 2022.

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