Ward v. M/Y UTOPIA IV et al

Filing 305

ORDER ON PARTIES' MOTIONS IN LIMINE. Order GRANTED IN PART and DENIED IN PART re 274 Statement filed by M/Y Utopia IV, Utopia Yachting LLC. Signed by Judge Beth Bloom on 3/10/2025. See attached document for full details. (amb) Text Modified on 3/11/2025 (amb).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-cv-23847-BLOOM/Goodman
ERIC WARD, et al.,
Plaintiffs,
v.
M/Y UTOPIA IV, Official No.
1305829, MMSI No. 339328000,
her engines, tackle, gear,
appurtenances, etc., in rem, and
UTOPIA YACHTING, LLC,
in personam,
Defendants.
_________________________/
ORDER ON PARTIES’ MOTIONS IN LIMINE
THIS CAUSE is before the Court upon the parties’ Joint Summary of Motions in Limine,
ECF No. [274]. The Court has reviewed the Motions, the supporting and opposing submissions,
the record in the case, and is otherwise fully advised. For the reasons that follow, the Motions in
Limine are granted in part and denied in part.
I.

BACKGROUND
The procedural history of the case is extensive, and the Court provides only the background

necessary to resolve the remaining Motions in Limine. Plaintiff Eric Ward initiated this action
against Defendants M/Y Utopia IV and Utopia Yachting LLC on November 22, 2022. ECF No.
[1]. Plaintiff brought three counts against Defendants: Failure to Provide Prompt and Adequate
Maintenance and Cure and Wages Against Utopia Yachting LLC (Count I); Jones Act Negligence
Against Utopia Yachting LLC (Count II); and Unseaworthiness Against the Yacht and Utopia
Yachting LLC (Count III). Id. at 6-9. On January 6, 2023, Fred Wennberg intervened and brought

Case No. 22-cv-23847-BLOOM/Goodman
the same three counts as Ward but brought Count II against both Defendants. ECF No. [16]. On
January 17, 2023, Samuel Parrott intervened, bringing identical claims to Ward. ECF No. [24].
Each Plaintiff was a crew member aboard the Utopia IV on December 23, 2021. ECF No.
[275] at 1. Each Plaintiff claims to have been injured in a collision between the Utopia IV and the
motor tanker Tropic Breeze. Id. Defendants “have admitted liability for the collision—that is, they
accept legal responsibility for the collision.” Id. at 2. Therefore, the jury will be asked to determine
“whether each of the three Plaintiffs were injured in the collision, and, if so, the extent of their
injuries and to then fairly compensate them for their injuries based on the testimony and evidence
presented.” Id. Plaintiffs have also alleged entitlement to maintenance, cure and/or unearned
wages—each with different claims on those elements. Id. Defendants state that all legally owed
compensation has already been paid. Id. Wennberg has additional negligence and unseaworthiness
claims for separate incidents in which he was injured aboard the Utopia IV, but Defendants have
not admitted liability for those incidents. Id.
The parties are scheduled to begin trial on March 24, 2025. ECF No. [57]. Judge Robert
Scola has already ruled or reserved ruling on the parties’ Motions in Limine. ECF Nos. [219],
[234]. In anticipation of the upcoming trial, the parties have submitted a Joint Summary of Motions
in Limine. ECF No. [288]. The summary of the Motions in Limine describes ongoing disputes
regarding the interpretation and application of Judge Scola’s rulings.
II.

LEGAL STANDARD
A. Motions in Limine
A party can file a motion in limine to exclude anticipated prejudicial evidence from future

proceedings. Luce v. United States, 469 U.S. 38, 40 n.2 (1984). “In fairness to the parties and their
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ability to put on their case, a court should exclude evidence in limine only when it is clearly
inadmissible on all potential grounds.” United States. v. Gonzalez, 718 F. Supp. 2d 1341, 1345
(S.D. Fla. 2010). The movant has the burden of proving that the evidence is inadmissible. Id.
“Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy, and potential prejudice may be resolved in proper context.” In
re Seroquel Prods. Liab. Litig., Nos. 6:06-md-1769, 6:07-cv-15733, 2009 WL 260989, at *1 (M.D.
Fla. Feb. 4, 2009). Likewise, “[i]n light of the preliminary or preemptive nature of motions in
limine, ‘any party may seek reconsideration at trial in light of the evidence actually presented and
shall make contemporaneous objections when evidence is elicited.’” Holder v. Anderson, No.
3:16-cv-1307, 2018 WL 4956757, at *1 (M.D. Fla. May 30, 2018) (quoting Miller ex rel. Miller
v. Ford Motor Co., No. 2:01-cv-545FTM-29DNF, 2004 WL 4054843, at *1 (M.D. Fla. July 22,
2004)); see In re Seroquel, 2009 WL 260989, at *1 (“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.”) (citing United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989)).
“In general, a district court may deny a motion in limine when it ‘lacks the necessary
specificity with respect to the evidence to be excluded.’” Vaughn v. Carnival Corp., 571 F. Supp.
3d 1318, 1325 (S.D. Fla. 2021) (quoting Bowden ex rel. Bowden v. Wal-Mart Stores, Inc., No.
CIV. A. 99-D-880-E, 2001 WL 617521, at *1 (M.D. Ala. Feb. 20, 2001)). “Motions in limine
should be limited to specific pieces of evidence and not serve as reinforcement regarding the
various rules governing trial.” Powers v. Target Corp., No. 19-cv-60922, 2020 WL 1986968, at
*7 (S.D. Fla. Apr. 27, 2020) (quoting Holder v. Anderson, No. 3:16-cv-1307, 2018 WL 4956757,
at *1 (M.D. Fla. May 30, 2018)).
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III.

DISCUSSION
A. Defendants’ Motions In Limine
Defendants move to exclude the following categories of evidence at trial:
i. Exclusion of all Testimony and Evidence on Liability and Proposed Jury
Instructions on Liability
In accordance with Judge Scola’s September 27, 2024 Order on Certain of Defendants’

Motions in Limine (“September 27 Order”), ECF No. [219], Defendant seeks to exclude “liability
evidence . . . including but not limited to evidence of negligence and unseaworthiness[.]” ECF No.
[274] at 2. Defendants state that the September 27 Order provided that the parties “are precluded
from offering ‘testimony and evidence of the Defendants’ liability on the Plaintiffs’ negligence
and/or unseaworthiness claims (with the exception of Fred Wennberg’s accidental incident claims)
and the testimony of the Plaintiffs’ liability expert Captain Hendrik Keijer’ at [t]rial.” Id. at 1
(quoting ECF No. [219] at 2).
As Judge Scola noted in the September 27 Order, Plaintiffs only agreed “in principle to the
Defendants’ proposal.” ECF No. [219] at 1. There appeared to be significant disagreement between
the parties regarding the details of any hypothetical stipulation. As Judge Scola stated, Plaintiffs
“believe that the Maintenance and Cure claims for the Plaintiffs must be litigated in full, and that
there should be a jury instruction with respect to the stipulation.” Id. Additionally, “Plaintiffs also
want to ensure that the stipulation and jury instruction(s) are adequate for the jury to ‘understand
the facts and circumstances of the collision[.]’” Id. (quoting ECF No. [119] at 2).
Much of the September 27 Order was conditional, with Judge Scola noting, “[t]he parties
thus agree, for the most part, that if the Defendants stipulate to liability, then certain evidence and
testimony may be cumulative and unfairly prejudicial to the Defendants.” ECF No. [219] at 2
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(emphases added). Judge Scola’s opinion that “evidence regarding liability will lead to unfair
prejudice, waste the jury’s time, and would be needlessly cumulative” was based on the
assumption that “the Defendants will stipulate to liability[.]” Id. (emphasis added).
As reflected in the Joint Notice of Late Filing of Joint Proposed Jury Instructions with
Objections, the parties have agreed to the instruction “M/Y UTOPIA and Utopia Yachting LLC is
at fault for the collision – that is the Defendants admit and accept legal responsibility for the
collision.” ECF No. [277-1] at 33. Given that is the extent of the parties’ agreement regarding
Defendants’ liability, the Court is unable to presently determine what evidence of Defendants’
liability—if any—would be cumulative or unfairly prejudicial. See Perez v. Fla. POP, LLC, No.
20-cv-14214, 2022 WL 18023487, at *2 (S.D. Fla. Jan. 28, 2022) (“Rather than issue preemptive
rulings that may needlessly restrict legitimate evidence and argument, I will make individualized
assessments regarding the introduction of any evidence . . . based on properly raised objections
during trial when the specific nature of the evidence is known and presented in context.”).
Accordingly, the Court reserves ruling on the Motion in Limine and the proposed jury instructions.
ii. Preclude Introduction of or Reference to Unauthenticated Medical
Records
Defendants seek to exclude “all unauthenticated medical records on the Plaintiffs’ Exhibit
List.” ECF No. [274] at 4. Defendants state that “[a]t no point during these proceedings was any
medical record for the Plaintiff authenticated . . . via the treaters themselves or their records
custodians.” Id. at 3. Defendants acknowledge that, in Judge Scola’s October 3, 2024 Omnibus
Order (“Omnibus Order”), he “reserved ruling on objections to the introduction of or reference to
unauthenticated medical records until they are raised in the context of trial.” Id.
As stated in the Omnibus Order:
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[I]t appears that the Plaintiffs may not be able to authenticate various records, while
they may be able to authenticate others. Because the court must “exclude[] evidence
on a Motion in Limine only if the evidence is clearly inadmissible for any purpose,”
the Court will determine authentication issues exhibit-by-exhibit at trial. See Lopez
v. Allstate Fire & Cas. Ins. Co., 2015 WL 11216748, at *1 (S.D. Fla. Oct. 27, 2015)
(Cooke, J.).
ECF No. [234] at 6-7. Plaintiffs state “[a]ll of the Plaintiffs’ medical records are capable
of being authenticated at trial[.]” ECF No. [274] at 4. As Plaintiff notes, medical records may be
authenticated through testimony of a witness with knowledge “that an item is what it is claimed to
be.” Fed. R. Evid. 901(b)(1).
Defendants note that Rule 902(11) provides an alternative method of authentication. A
document is “self-authenticating” under Rule 902(11) if the record “meets the requirements of
Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that
complies with a federal statute or a rule prescribed by the Supreme Court.” Fed. R. Evid. 902(11).
However, as Defendants state, if a party seeks to authenticate a document under Rule 902(11),
“[b]efore the trial or hearing, the proponent must give an adverse party reasonable written notice
of the intent to offer the record — and must make the record and certification available for
inspection — so that the party has a fair opportunity to challenge them.” Id.
Should Plaintiff seek to authenticate any medical records via certification, the certification
must be made available to Defendants on or before March 17, 2025. To the extent Plaintiff is
unable to produce the required certifications on or before March 17, 2025, and is unable to
authenticate the records at trial, the Motion is granted.

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iii. Preclude Introduction of or Reliance on Sarah Barkley’s Typed
Reports/Notes
Defendants argue that, despite Plaintiff’s prior representation “that the only
contemporaneous notes that Ms. Barkley took were handwritten notes and that all typed summaries
and notes were prepared in anticipation of litigation (and not contemporaneously with treatment)
and co-authored by Eric Ward,” Plaintiffs, in defiance of Judge Scola’s Omnibus Order, “have
included all of Ms. Barkley’s inadmissible typed summaries and notes co-authored by Eric Ward
in their Exhibit 15[.]” ECF No. [274] at 5. Plaintiffs respond that they “never stated that . . .
handwritten notes were the only contemporaneous records,” but that “Ms. Barkley’s clinical notes
were either handwritten or typed in shorthand contemporaneous to the treatment that Mr. Ward
received.” Id. at 6.
Plaintiffs state that “Ms. Barkley will testify at trial that the entirety of Exhibit 15 are her
contemporaneous clinical notes that were not created in anticipation of litigation.” Id. As stated in
the Omnibus Order, “Ms. Barkley may testify with respect to her contemporaneous notes/treatment
summary records but may not testify with respect to the more detailed report prepared in
anticipation of litigation.” ECF No. [234] at 9. In accordance with the Omnibus Order, the Motion
is denied to the extent that the typed notes and reports are contemporaneous clinical notes that
were not created in anticipation of litigation.
iv.Preclude Improper Expert Testimony from Witnesses Not Designated
Pursuant to Rule 26(a)(2)(C)
In the Omnibus Order, Judge Scola noted, “the Plaintiffs represented that Ms. Barkley, and
the other medical providers not designated as experts, would not testify as to the cause of the
Plaintiffs’ medical conditions. Therefore, Ms. Barkley and any other medical providers would not
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be testifying as experts.” ECF No. [234] at 9. Based on that representation, Judge Scola denied the
Motion in Limine to exclude testimony not properly designated under Rule 26(a)(2)(C). Id.
However, Defendants argue that “significant portions of the medical testimony designated by the
Plaintiffs include improper causation and expert testimony[.]” ECF No. [274] at 7. Plaintiffs state
“Defendants have not specified which testimony the believe is improper and so it would be
impossible for the Court to rule on this motion in limine at this time.” Id. (emphasis added).
Although Defendants cite a series of specific portions of the depositions of Dr. Austin Chen and
Dr. Sarah Barkley which they state, “includes improper causation and expert testimony,” id. “[t]he
exact boundaries of the treating physician's testimony [should] be addressed with specific
objections to specific testimony in the context of trial.” Powers, 2020 WL 1986968, at *3 (quoting
Baratta v. City of Largo, No. 8:01-cv-1894EAJ, 2003 WL 25686843, at *3 (M.D. Fla. Mar. 18,
2003)).
“[A] treating physician is not considered an expert witness if he or she testifies about
observations based on personal knowledge, including the treatment of the party,” Williams v. Mast
Biosurgery USA, Inc., 644 F.3d 1312, 1317 (11th Cir. 2011) (quoting Davoll v. Webb, 194 F.3d
1116, 1138 (10th Cir. 1999). “[A] physician may offer lay opinion testimony, consistent with Rule
701, when the opinion is ‘based on his experience as a physician and [is] clearly helpful to an
understanding of his decision-making process in the situation.’” Id. (quoting Weese v. Schukman,
98 F.3d 542, 550 (10th Cir. 1996). “[W]hen a treating physician’s testimony is based on a
hypothesis, not the experience of treating the patient, it crosses the line from lay to expert
testimony[.]” Id. at 1317-18.

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To the extent the treating physicians can “testif[y] about [their] observations based on
personal knowledge, including the treatment of the part[ies],” the Motion is denied. Id. at 1317.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that the Motions in Limine, ECF No.

[274], are GRANTED IN PART and DENIED IN PART.
DONE AND ORDERED in Chambers at Miami, Florida, on March 10, 2025.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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