A.T.O. Golden Construction Corp v. Allied World Insurance Company

Filing 123

ORDER granting in part and denying in part 106 Defendants' Motion in Limine. Signed by Magistrate Judge Edwin G. Torres on 11/9/2018. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-24223-Civ-WILLIAMS/TORRES
A.T.O. GOLDEN CONSTRUCTION
CORP., a Florida corporation,
Plaintiff/Counterclaim Defendant,
v.
ALLIED WORLD INSURANCE COMPANY,
A foreign insurance company,
Defendant.
v.
PETE VICARI GENERAL CONTRACTOR, LLC,
a foreign profit company,
Defendant/Counter-Claimant
___________________________________________/
ORDER ON DEFENDANTS’ MOTION IN LIMINE
This matter is before the Court on Allied World Insurance Company’s (“Allied
World”) and Pete Vicari General Contractor, LLC’s (“PVGC”) (collectively,
Defendants”) joint motion in limine against A.T.O. Golden Construction Corp.
(“Plaintiff”). [D.E. 106]. Plaintiff responded to Defendants’ motion on October 9, 2018
[D.E. 115] to which Defendants replied on October 16, 2018. [D.E. 117]. Therefore,
Defendants’ motion is now ripe for disposition.

Having reviewed the motion,

response, reply, relevant authority, and for the reasons discussed below, Defendants’
motion in limine is GRANTED in part and DENIED in part.

1

I. BACKGROUND
Plaintiff filed this action on November 21, 2017 for a breach of contract. [D.E.
1]. This case relates to construction work that Plaintiff performed at residential
apartment buildings – known as the CT Project and the CTS Project (collectively, the
“Projects”) – under two subcontracts with PVGC. On March 1, 2017, PVGC entered
into the contracts with Plaintiff for demolition and carpentry services. Pursuant to
the contracts, PVGC was required to pay Plaintiff progress payments so long as
Plaintiff’s monthly payment applications provided detailed statements and
percentages of completion that Plaintiff performed the prior month.
From March 2017 through July 2017, PVGC approved and paid Plaintiff for
work submitted in payment applications 1 through 5. However, Plaintiff alleges that
PVGC failed to provide any payment for work completed under payment applications
6 through 8. In August 2017, PVGC hired Mr. Ayala as a replacement manager for
the Projects.1 Mr. Ayala toured the Projects to determine how much work had been
performed and to update the completion percentages of the Projects based on what
he observed. When Mr. Ayala realized that Plaintiff had misreported the amount of
work completed, he assisted PVGC in issuing a credit that corrected the completion
percentages and reduced the money due from PVGC. Plaintiff alleges, on the other
hand, that multiple entities, including PVGC, previously approved the applications

PVGC hired Mr. Ayala when it became suspicious that the payment
application approval process had been tainted with Mr. Mick’s self-interests.
1

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and completion percentages and therefore PVGC should not have created corrective
pay applications.2
When Defendants failed to pay Plaintiff for applications 6 and 7, Plaintiff
served PVGC on October 12, 2017 with a notice of default. On October 17, 2017,
Plaintiff filed its notice of termination and expressed an intent to pursue an action
against Allied World (PVGC’s surety) for breach of the payment bond. Approximately
three months later, on January 19, 2018, PVGC relied on Mr. Ayala’s spreadsheets
to create ATO payment applications of the October 2017 billing cycle.

These

spreadsheets assisted PVGC in justifying a credit to for work that Mr. Ayala
determined was incomplete and overbilled. PVGC subsequently reduced the amounts
owed under the subcontracts and, as a result, Plaintiff filed this lawsuit against
Defendants on November 11, 2017 for the amounts owed under the subcontracts.
II. APPLICABLE PRINCIPLES AND LAW
“The purpose of an in limine motion is to aid the trial process by enabling the
Court to rule in advance of trial on the relevance of certain forecasted evidence, as to
issues that are definitely set for trial, without lengthy argument at, or interruption
of, the trial.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 176
(S.D.N.Y. 2008) (citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)). Under
the Federal Rules, evidence is considered relevant if it has the tendency to make a
fact of consequence more or less probable. See Fed. R. Evid. 401(a)-(b). The Rules

Defendants believe that these approvals have a fatal flaw because PVGC’s
former project manager was Mr. Mick who allegedly stood to benefit financially from
Plaintiff’s contract with PVGC.
2

3

permit the exclusion of relevant evidence when the probative value is substantially
outweighed by danger of unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, and/or needlessly presenting cumulative evidence. Fed.
R. Evid. 403 (emphasis added). Courts are cautioned to use Rule 403 sparingly, see,
e.g., United States v. King, 713 F.2d 627, 631 (1983), in part because the federal rules
favor admission of evidence and in part because relevant evidence is inherently
prejudicial to a criminal defendant. See id. (citing to other sources).
III. ANALYSIS
Defendants’ motion in limine seeks to exclude four categories of evidence at
trial. First, Defendants argue that any evidence related to lost profits should be
excluded because – despite Plaintiff’s request for lost profits in its complaint –
Plaintiff has stonewalled discovery on this issue. Second, Defendants request that
Plaintiff be subjected to an adverse inference instruction because Plaintiff failed to
preserve relevant electronic evidence.

Alternatively, Defendants request that

Plaintiff’s lost profit claim be deemed waived. Third, Defendants assert that if Mr.
Ayala is stricken as an expert witness, as Plaintiff requested in its motion in limine,
then the Court should exclude any of Plaintiff’s witnesses to the extent they seek to
testify on the process of creating Plaintiff’s payment applications.

And finally,

Defendants request that any other lawsuits filed against PVGC should be excluded
because other cases are not probative of the allegations in this lawsuit because the
underlying facts are substantially different.

4

Plaintiff asserts, on the other hand, that Defendants’ motion is defective for
five reasons. As a preliminary matter, Plaintiff claims that Defendants’ motion
should be outright denied because it was filed after the deadline provided in the
Court’s Scheduling Order which requires that motions in limine be filed by August
13, 2018.3 Second, Plaintiff argues that Defendants’ request to exclude lost profits
should be denied because ZPacez already produced Plaintiff’s labor costs pursuant to
the Court’s Discovery Order. Third, Plaintiff contends that Defendants fail to meet
their burden to show that they are entitled to a remedy for spoliation of evidence.
Fourth, Plaintiff takes issue with Defendants’ request to exclude Plaintiff’s payment
applications because they qualify as business records under the Federal Rules of
Evidence. Finally, Plaintiff opposes Defendants’ request to exclude evidence of other
lawsuits against PVGC because these cases are probative of PVGC’s repeated pattern
of failing and/or refusing to pay subcontractors.

We will discuss the parties’

arguments in turn.

Plaintiff argues that Defendants’ motion in limine (filed on September 25,
2018) is untimely because the Court’s Scheduling Order case set a deadline of August
13, 2018 to file these motions. Defendants claim, however, that there is an ambiguity
in the Scheduling Order because while August 13, 2018 was the deadline to file
motions in limine, another provision indicates that all motions in limine must be filed
at least six weeks before calendar call. And given that the Court originally set a
deadline for calendar call on November 6, 2018, Defendants conclude that the filing
of their motion in limine comports with the plain language of the Scheduling Order.
We need not delve into the merits of this issue because even if Defendants
misinterpreted the Court’s Scheduling Order, we find that the interests of justice
weigh in favor of considering the merits of Defendants’ motion – particularly since
the Court delayed the date for calendar call even further until January 22, 2019. This
means that, even if Defendants violated the Scheduling Order, Defendants have set
forth good cause and Plaintiff has no viable argument that it suffered any prejudice.
3

5

A.

Whether Evidence Related to Plaintiff’s Lost Profits Claim
Should be Excluded

Defendants’ initial argument is that, “[w]hile Plaintiff has framed its request
for lost profits by the the pleadings, [Plaintiff’s] conduct in discovery should be
deemed to have waived its request for lost profits.” [D.E. 106]. Defendants contend
that Plaintiff’s claim for lost profits should be deemed waived because Defendants
cannot properly evaluate it without knowledge of Plaintiff’s costs.

Specifically,

Defendants suggest that the doctrine of judicial estoppel should apply to prevent
Plaintiff “from prevailing in one phase of a case on an argument and then relying on
a contradictory argument to prevail in another phase.” Zedner v. United States, 547
U.S. 489, 504 (2006) (citations and quotation marks omitted).
Defendants’ argument relates to a discovery hearing that the parties attended
on August 10, 2018 where Plaintiff argued that PVGC was not permitted to inquire
about Plaintiff’s costs because this case concerns a lump sum contract. Defendants
assert that the undersigned limited the amount of discovery that Plaintiff had to
produce because all items, except for payroll and labor records, fell outside the scope
of discoverable documents. Because Plaintiff failed to produce any documents related
to Plaintiff’s costs, Defendants conclude that they have been precluded from
examining Plaintiff’s claim for lost profits and that it cannot proceed to trial.
Defendants’ motion is misguided because it seeks to dispose of Plaintiff’s lost
profits claim on a motion in limine. If Plaintiff’s lost profits claim is as unsupported
as Defendants suggest and Plaintiff failed to produce any evidence in support thereof,
this is an issue more suitable on a motion for summary judgment – not a motion in
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limine. Indeed, the former relates to the disposition of a party’s claims whereas the
latter targets the exclusion of evidence. And while “the Federal Rules of Federal
Rules of Civil Procedure contain multiple rules allowing parties to dismiss claims;
there is no need to disguise a motion for summary judgment in the clothing of
a motion in limine. Instead, the proper courses are a timely filed motion for summary
judgment or a motion for judgment as a matter of law.” Gold Cross Ems, Inc. v.
Children's Hosp. of Alabama, 309 F.R.D. 699, 702 (S.D. Ga. 2015).

Because

Defendants’ motion “is an attempt . . . [to] use[]a motion in limine to dispose of a
claim,” Defendants’ motion in limine to exclude Plaintiff’s lost profits claim is
DENIED.
B.

Whether Plaintiff should be Subjected to an Adverse Inference

The next issue is whether Plaintiff should be subjected to an adverse inference
instruction and the waiver of its lost profits claim for failing to preserve relevant
electronic evidence. Defendants argue that Plaintiff’s 30(b)(6) deponent testified that
data on three laptops crashed, including the loss of a cell phone. Defendants also
allege that Plaintiff disposed of these items to preclude Defendants from examining
or conducting their own recovery efforts and that Plaintiff’s actions arise to the
spoliation of evidence. In sum, Defendants contend that there are two categories of
electronically stored information that warrant examination and review for spoliation
purposes.
First, Defendants suggest that Plaintiff spoliated evidence related to the costs
of the Projects. Defendants claim that knowledge of the costs of the Projects is

7

necessary to rebut the claim for lost profits and that one of two things must be true –
either Plaintiff withheld evidence based on relevancy or Plaintiff failed to provide
relevant information that it should have possessed. Specifically, Defendants take
issue with the documents that Plaintiff produced in this case because they show that
– other than Plaintiff stonewalling discovery – the only other viable explanation for
missing documents is that Plaintiff’s electronic equipment containing the information
failed.4 Therefore, Defendants conclude that (1) if the evidence exists but Plaintiff
withheld it then the lost profits claim should be estopped, or (2) if the evidence existed
but has been lost because of the failure to preserve evidence then the lost profits claim
should still be stricken for spoliation of evidence.
Second, Defendants suggest that Plaintiff spoliated evidence with respect to
(1) an agreement that shows Mr. Mick diverting his interests to Ms. Logunova, and
(2) a labor leasing agreement.

Defendants maintain that, in relation to the

assignment document, no party has found or provided in discovery an email in which
this agreement was an attachment. The only documentary evidence of the agreement
consists of a single file which is a non-searchable PDF of the signed agreement. PVGC
claims that it issued a request for production of all relevant metadata to discover
more information on this document, but that Plaintiff did not respond to this request.
Defendants therefore conclude that Plaintiff may have spoliated this evidence given
its refusal to respond to PVGC’s discovery requests.

Defendants claim that Plaintiff failed to produce records of payment, bank
records, profit/loss reports, financial statements, or tax returns.
4

8

As for the leasing agreement, Defendants claim that no party has found or
provided in discovery an email with this document. The first time that the document
was provided to PVGC was allegedly via email where the metadata indicates that the
PDF was created from a Microsoft Word document. Defendants claim that they
raised this issue with Plaintiff, but that Plaintiff failed to provide the original
document or a signed version. Accordingly, Defendants conclude that Plaintiff’s
decision to either withhold relevant evidence or the loss of important documents
constitutes spoliation in bad faith.
‘“Spoliation’ is the intentional destruction, mutilation, alteration, or
concealment of evidence.”’ Walter v. Carnival Corp., 2010 WL 2927962, at *2 (S.D.
Fla. July 23, 2010) (citing St. Cyr v. Flying J Inc., 2007 WL 1716365 at *3 (M.D. Fla.
June 12, 2007)). To establish spoliation, Defendants must show (1) that the missing
evidence existed at one time, (2) that Plaintiff had a duty5 to preserve the evidence,
and (3) that the evidence was crucial to Defendants being able to prove its prima facie
case. See Floeter v. City of Orlando, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007).
“However, a party’s failure to preserve evidence rises to the level of sanctionable
spoliation ‘only when the absence of that evidence is predicated on bad faith,” such
as where a party purposely loses or destroys relevant evidence.”’ Walter, 2010 WL
2927962, at *2 (citing Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (emphasis
added)). And “[m]ere negligence” in losing or destroying records is not enough for an
The duty to preserve evidence may arise prior to the commencement of
litigation when a party contemplates litigation and it is reasonably foreseeable that
the evidence is relevant to the litigation. See St. Cyr v. Flying J Inc., 2007 WL
1716365, at *3 (M.D. Fla. June 12, 2007).
5

9

adverse inference, as “it does not sustain an inference of consciousness of a weak
case.” Vick v. Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir. 1975). In fact,
even gross negligence is insufficient to make a finding of bad faith. See, e.g., Wandner
v. Am. Airlines, 79 F. Supp. 3d 1285, 1298 (S.D. Fla. 2015) (“Given this Circuit’s
requirement that an adverse inference flowing from spoliation requires the presence
of bad faith, even grossly negligent discovery conduct does not justify that type of jury
instruction.”); Selectica, Inc. v. Novatus, Inc., 2015 WL 1125051, at *3 (M.D. Fla. Mar.
12, 2015) (finding that gross negligence will not support the imposition of spoliation
sanctions).
“If direct evidence of bad faith is unavailable, bad faith may be founded on
circumstantial evidence when the following criteria are met: (1) evidence once existed
that could fairly be supposed to have been material to the proof or defense of a claim
at issue in the case; (2) the spoliating party engaged in an affirmative act causing the
evidence to be lost; (3) the spoliating party did so while it knew or should have known
of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot
be credibly explained as not involving bad faith by the reason proffered by the
spoliator.” Walter, 2010 WL 2927962, at *2 (quoting Calixto v. Watson Bowman Acme
Corp.,

2009

WL

3823390,

at

*16

(S.D.

Fla.

Nov.

16,

2009)).

“The party seeking the sanctions must establish all four of these factors where there
is no direct evidence of bad faith.” Managed Care Sols., Inc. v. Essent Healthcare,
Inc., 736 F. Supp. 2d 1317, 1323 (S.D. Fla. 2010) (citing Calixto, 2009 WL 3823390,

10

at *16 (stating that “in this Circuit, bad faith may be found on circumstantial
evidence where all of the [aforementioned] hallmarks are present”)).
Here, Defendants’ motion for an adverse inference is unpersuasive for several
reasons but most importantly because it relies on nothing more than speculation in
concluding that Plaintiff failed to produce the documents that Defendants requested.
See, e.g., Depofi v. DynCorp Int’l LLC, 2009 WL 10671361, at *2 (N.D. Ga. May 18,
2009) (“DynCorp relies on nothing more than pure speculation to support its
argument that Depofi and his counsel intentionally concealed the impending tort
action from DynCorp so that it could not investigate the staircase.”). Defendants, for
example, hedge in their motion that Plaintiffs either stonewalled discovery or failed
to maintain electronic data. Noticeably, however, Defendants are uncertain what
Plaintiff may have done. The only assertion that Defendants are confident about is
that they did not receive the documents that they requested.
But, a discovery dispute without some evidence or proof that relevant evidence
has been destroyed does not provide the proper foundation to file a motion for
spoliation of evidence. Courts in our Circuit have consistently applied this standard
and required that a party seeking to prove spoliation first show that some relevant
and crucial evidence has been destroyed or significantly altered before spoliation can
be found and sanctions awarded. See, e.g., Flury v. Daimler Chrysler Corp., 427 F.3d
939, 946-47 (11th Cir. 2005) (spoliation found where vehicle that was critical to the
case was destroyed before defendant could examine it); Cox v. Target Corp., 351 F.
App’x 381, 383 (11th Cir. 2009) (inability of plaintiff to establish that a destroyed

11

videotape contained relevant footage of a fall at issue in the case supported denying
motion for spoliation sanction); Graff v. Baja Marine Corp., 310 F. App’x 298, 301
(11th Cir. 2009) (spoliation found where defendants established that plaintiffs
destroyed “the critical piece of evidence in this case” and defendants suffered
substantial prejudice); Kraft Reinsurance Ireland, Ltd. v. Pallets Acquisitions, LLC,
845 F. Supp. 2d 1342 (N.D. Ga. 2011) (spoliation found where party established that
relevant physical evidence critical to the claims in the case was destroyed after the
spoliating party was on notice that litigation was reasonably foreseeable).

This

means that a party seeking spoliation sanctions may not rest “upon speculation that
important documents concerning [a claim or defense] existed but were destroyed.” In
re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1309-10 (N.D.
Ga. 2011) (citing cases and discussing the requirement that some proof of destruction
of critical or crucial evidence be offered by party asserting spoliation); see also Heath
v. Wal-Mart Stores East, LP, 697 F. Supp. 2d 1373, 1378-79 (N.D. Ga. 2010) (finding
that speculation about what destroyed portions of video footage might have shown is
insufficient to support a finding of spoliation).
If Plaintiff stonewalled discovery, as Defendants allege, then they should have
sought relief pursuant to the Court’s Discovery Calendar.

Otherwise, given the

arguments presented, Defendants have not set forth a viable argument that evidence
was spoliated in this case. If the rule that Defendants suggest was the standard –
which is that speculation is enough for a spoliation finding – then spoliation motions
would be filed in every case that a discovery dispute arises. Therefore, Defendants’

12

motion for adverse inference is DENIED because speculation alone is not enough to
conclude that Plaintiff spoliated evidence.
Putting aside that problem, Defendants have also failed to present any direct
evidence of spoliation – meaning they are required to show that 1) evidence once
existed that could fairly be supposed to have been material to the proof or defense of
a claim at issue in the case, (2) the spoliating party engaged in an affirmative act
causing the evidence to be lost, (3) the spoliating party did so while it knew or should
have known of its duty to preserve the evidence, and (4) the affirmative act causing
the loss cannot be credibly explained as not involving bad faith by the reason
proffered by the spoliator. Walter, 2010 WL 2927962, at *2 (quoting Calixto, 2009
WL 3823390, at *16). Yet, Defendants cannot meet these elements because, by their
own admission, they have not established one way or the other that Plaintiff engaged
in an affirmative act to destroy evidence. And because there is no evidence that
Plaintiff engaged in an affirmative act that caused any electronic evidence to be
spoliated, Defendants’ motion is DENIED on this basis as well.
C.

Whether Testimony of Plaintiff’s Lay Witnesses Should be
Excluded as a Violation of Federal Rule of Evidence 701

The next issue is whether the testimony of Plaintiff’s witnesses, to the extent
that they seek to opine on the percentages of completion found in Plaintiff’s payment
applications, should be excluded under Federal Rule of Evidence 701. Defendants
argue that they are entitled to the same relief as Plaintiff, to the extent the Court
concludes that determining a percentage of completion requires expert testimony,

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because Plaintiff’s motion in limine was aimed at excluding the testimony of
Defendants’ lay witness Mr. Ayala.
As background, Plaintiff’s motion sought to exclude Mr. Ayala’s spreadsheets
and testimony because they constituted improper expert testimony of a lay witness.
Plaintiff argued that Mr. Ayala was tasked to review Plaintiff’s construction work
and drafted spreadsheets by observing the Projects and adjusting Plaintiff’s
estimated percentages based on his subjective belief without any measurable data or
methodology. Plaintiff alleged that Mr. Ayala relied on his specialized construction
knowledge to conclude that Plaintiff overbilled and failed to complete the work
required.
Plaintiff took issue with how Mr. Ayala compiled his spreadsheets and the use
of a payment application form because it required a specialized understanding of how
construction work is quantified into percentages of completion. For example, Plaintiff
claimed that Mr. Ayala’s spreadsheets contained many categories to evaluate a
subcontractor’s work – including a breakdown of the hundreds of line items for the
subcontractor, the percentage of completion, the percentages paid to subcontractors,
the schedule of values, the total value of work completed, and the amount paid to the
subcontractor.

As such, Plaintiff concluded that Mr. Ayala’s spreadsheets and

testimony went beyond the realm of a lay witness because it relied on specialized
construction knowledge despite having personal observations of Plaintiff’s work. See,
e.g., City of Mountain Park, Georgia v. Lakeside at Ansley, LLC, 2009 WL 10665812,
at *3 (N.D. Ga. Oct. 5, 2009) (“The witnesses are not mere lay persons and their

14

opinions are not lay opinions. Their affidavits are based almost entirely of opinions
based upon on their ‘specialized knowledge’ of construction, soil erosion, and
prevention techniques. Therefore, these opinions cannot be offered under Rule 701.”).
We found that Mr. Ayala’s spreadsheets were not as basic as Defendants
suggested and that Mr. Ayala’s testimony supported that view. We relied, in part, on
Mr. Ayala’s testimony on how he determined percentages with respect to the
installation of kitchen cabinets. Mr. Ayala stated, for example, that if half of kitchen
cabinets where installed in a certain testified then that would result in a 50%
completion rate. However, Mr. Ayala then testified that “[i]f they did half, but they
didn’t . . . tie the screws in some of those, you take 5 percent less.” [D.E. 82-2 at 81].
We found that Defendants offered no explanation on how Mr. Ayala’s computations
constituted lay witness testimony when Mr. Ayala was determining percentages
based on the number of screws installed in a cabinet. Mr. Ayala’s testimony instead
showed that these percentages required a specialized understanding of labor,
demolition, and installation costs.
We also determined that the specific valuations on Mr. Ayala’s spreadsheets
constituted expert testimony because he used computers to manipulate the data
collected and to generate his percentages. Mr. Ayala claimed that he would go to
every floor with a notepad, collect data, and transmit that information to a computer
which would then synthesize it into a spreadsheet. This process purportedly took the
computer days, if not a week, to determine the final percentages:

15

Q. So when you reference the updated completion spreadsheet from
September 27th in the previous exhibit in front of you, that wasn’t a
spreadsheet, that was just a bunch of compiled data?
A. Okay. I go with a notepad to every floor and ·I make my notes and I
take my notes on completion. While I transmit all that data to the
computer and put it in a spreadsheet, it could take a week or days, so ·
some more progress is happening those days. So as soon as I put this
information, I’ve got to make sure what was done the week while I was
working on that ·paperwork to include it over there, that’s what I mean
updated, but pretty much the updating is minimum.
[D.E. 121 at 45-46]. As such, we concluded that Defendants should have designated
Mr. Ayala as an expert in this case because – although a lay person may opine on
matters based upon his perception – he may not testify as to matters that require
specialized knowledge and were tasked for purposes of litigation. And because Mr.
Ayala rendered an expert opinion based on his specialized knowledge of design and
construction and Defendants failed to disclose him as an expert witness, we granted
Plaintiff’s motion in limine to exclude Mr. Ayala’s spreadsheets and testimony to the
extent that they related to the specific valuations of the construction work that
Plaintiff completed.6
Here, Defendants argue that the process that Mr. Ayala used in compiling his
spreadsheets is the same method that Plaintiff’s witnesses used in creating its
payment applications. Defendants maintain that a visual examination and review of
the actual level of completion may have been required and that this falls outside the

We further noted that, although the specific valuations on Mr. Ayala’s
spreadsheets constituted expert witness testimony, any testimony related to his
general observations of the construction work completed is admissible because it is
the product of reasoning “familiar to the average person in everyday life.” United
States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005).
6

16

realm of lay witness testimony in the same way that we excluded the
testimony/spreadsheets of Mr. Ayala.7

Because Plaintiff failed to disclose an expert

in this case as required under Rule 26 and the method used to create Plaintiff’s
payment applications is the same as Mr. Ayala’s, Defendants request that we exclude
any testimony of Plaintiff’s witnesses on this issue and provide a limiting instruction
as to the probative value of Plaintiff’s payment applications.
Defendants’ motion is, however, unpersuasive because there is inadequate
support in the record to reach their conclusion.

While Defendants claim that the

process used to create Mr. Ayala’s spreadsheets is the same as Plaintiff’s payment
applications, Defendants failed to support their argument with an exhibit to
Plaintiff’s payment applications or, for example, deposition testimony that
establishes that the processes are the same. Instead, Defendants request that we
decide in the abstract that the payment applications were created the same way as
Mr. Ayala’s spreadsheets, but we cannot make that finding without a sufficient
factual record. Defendants also neglected to include any legal authority to support
their position. In fact, Defendants’ motion is almost the exact opposite of Plaintiff’s
motion in limine where the latter explained in detail the ways in which Mr. Ayala’s
spreadsheets were created and then relied on deposition testimony to illustrate how
his method constituted expert testimony. Because we do not have a sufficient legal
or factual record to find that Plaintiff’s payment applications constitute expert
Defendants are uncertain on whether a visual inspection was required or not.
[D.E. 106] (“[T]he payment applications do not contain evidence of actual completion
but an ATO official’s projection of completion, which may or may not have been based
on a visual inspection.”).
7

17

testimony and the movant has the burden of demonstrating that the evidence should
be excluded, Defendants’ motion is DENIED with leave to renew at trial. See S.
Aggregate Distributors, Inc. v. Downen Aggregate Grp., LLC, 2006 WL 8437758, at *1
(S.D. Ala. Nov. 21, 2006) (“The movant has the burden of demonstrating that the
evidence is inadmissible on any relevant ground.

The court may deny

a motion in limine when it “lacks the necessary specificity with respect to the
evidence to be excluded.”).
D.

Whether Evidence of Prior Lawsuits Should be Excluded

The final issue is whether other lawsuits filed against PVGC should be
excluded at trial. Defendants claim that there is a general rule in the Eleventh
Circuit that evidence of other lawsuits filed against a defendant is generally not
probative in the absence of some evidence of a widespread pattern and practice. See,
e.g., Palmer v. Bd. of Regents of Univ. Sys. of Ga., 208 F.3d 969, 973 (11th Cir. 2000)
(“[W]e do not find any merit to Palmer’s argument that the district court abused its
discretion in excluding evidence of the existence of the other lawsuits against the
University System. The complaints that she sought to introduce involved different
decision-makers, different departments, and different hiring processes.”).
Defendants take issue, for example, with Mr. Mick’s affidavit (which Plaintiff
relied on at the summary judgment stage) where he claims that PVGC “faces
litigation” because of a “repeated failure to properly manage and timely pay its
subcontracts and suppliers.” [D.E. 94-1]. Defendants argue that these cases are
materially different from the facts in this lawsuit and that none of the other actions

18

resulted in any adverse judgments. Defendants also claim that none of the cases
proceeded to trial and that they lack any relevance to the question presented –
whether Plaintiff overbilled for construction work. Defendants therefore conclude
that the inference Plaintiff seeks to introduce at trial is unduly prejudicial and that
any evidence of prior lawsuits against PVGC should be excluded.
Plaintiff’s response is two-fold. First, Plaintiff argues that evidence of other
lawsuits may be admissible even if the facts are materially dissimilar.

Second,

Plaintiff claims that the cases that it seeks to introduce at trial involve substantially
similar facts. Plaintiff asserts that each case includes (1) the same Projects, (2)
PVGC’s failure to tender owed amounts, and (3) a similar time frame.8 Because the
lawsuits are similar, and the evidence is probative of PVGC’s repeated failure to pay
subcontractors, Plaintiff concludes that Defendants’ motion must be denied.
Evidence of other lawsuits is generally considered to be inadmissible hearsay.
See In re Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig., 2014 WL 505234, at *56 (S.D. W. Va. Feb. 5, 2014) (citing Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th
Cir. 1993)); see also Steed v. EverHome Mortg. Co., 308 F. App’x 364, 369 n.2 (11th
Cir. 2009) (excluding a complaint filed in a prior lawsuit against defendant as
hearsay); Roberts v. Harnischfeger Corp., 901 F.2d 42, 44-45 (5th Cir. 1989) (affidavit
summarizing copies of notices of pending litigation against the defendant properly
excluded as hearsay); Amegy Bank Nat’l Ass’n v. DB Private Wealth Mortg., Ltd., 2014
WL 791505, at *2 (M.D. Fla. Feb. 24, 2014) (excluding any “references to allegations,
Plaintiff claims that three prior cases – Coastal, Ecolifc, and H&E – are
substantially similar to the facts presented.
8

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petitions, complaints or claims against [defendant] in other suits” as hearsay); Abu
Dhabi Commercial Bank v. Morgan Stanley & Co., 2013 WL 1155420, at *7 (S.D.N.Y.
Mar. 20, 2013) (excluding “[r]eferences to other lawsuits including their factual
allegations and evidence”).
In this case, Plaintiff has not explained in any meaningful way how prior
lawsuits against PVGC have any probative value. Plaintiff merely refers to three
cases and makes conclusory arguments that they are substantially similar to the facts
presented. Indeed, Plaintiff only devotes about one sentence for each related case in
explaining their relevancy. And rather than presenting specific arguments with
supporting evidence, Plaintiff merely suggests that the cases are similar and leaves
it to the Court to determine if they are distinguishable or not.
However, we decline to do Plaintiff’s work and investigate the facts of each case
to determine their relevancy. If the cases are as similar as Plaintiff suggests then
Plaintiff should have set forth specific arguments with supporting evidence.
Plaintiff’s response – as it stands now – is quite conclusory, incomplete, and fails to
demonstrate that the facts of other lawsuits are similar to the facts presented. And
“[e]ven if [P]laintiff could demonstrate some probative value from allegations in other
lawsuits, presenting evidence of these other cases would lead to a series of mini-trials
that would likely confuse and mislead the jury from the task at hand of evaluating
plaintiff's claims in this case and result in a waste of time and judicial resources.”
Smith v. E-backgroundchecks.com, Inc., 2015 WL 11233453, at *2 (N.D. Ga. June 4,
2015). If that was not enough of a reason to grant Defendants’ motion, “the minimal

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value, if any, of such proof is substantially outweighed by the risk of unfair prejudice
to [PVGC] arising from the admission of evidence of allegations in other lawsuits filed
against it.” Id. (citing ushing v. Wells Fargo Bank, N.A., 2012 WL 3155790, at *1
(M.D. Fla. Aug. 3, 2012) (noting that generally, “evidence of other lawsuits is not
normally relevant and not permitted”); Williams v. Asplundh Tree Expert Co., 2006
WL 2868923, at *2 (M.D. Fla. Oct. 6, 2006)). Therefore, Defendants’ motion to exclude
evidence of prior lawsuits is GRANTED.

See Godwin v. Burkhalter, 2013 WL

4544313, at *1 (M.D. Ala. Aug. 27, 2013); In re Ethicon, 2014 WL 505234, at *6.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Defendant’s motion in limine [D.E. 106] is GRANTED in part and DENIED in
part:
A. Defendants’ motion to exclude all evidence of Plaintiff’s lost profits claim is
DENIED.
B. Defendants’ motion for an adverse inference is DENIED.
C. Defendants’ motion to exclude any testimony of Plaintiff’s witnesses to the
extent that they seek to testify on the percentages of completion found in
Plaintiff’s payment applications is DENIED with leave to renew at trial.
D. Defendant’s motion to exclude evidence of prior lawsuits against PVGC is
GRANTED.

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DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of
November, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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