Taylor v. Shandex Truck, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BRADFORD TAYLOR and

HELIE TAYLOR,

Plaintiffs,

v. Case No. 8:19-cv-1761-KKM-TGW

CHRIS ALLWORTH and

SHANDEX TRUCK, INC.,

Defendants.

ORDER

Defendants Chris Allworth and Shandex Truck, Inc., filed seven amended motions

in limine on August 11, 2021. (Does. 90, 91, 92, 93, 94, 95, 96.) Plaintiffs Bradford Taylor

and Helie Taylor (once again) failed to timely respond to any of the motions despite the

Court’s order that they do so by August 27, 2021. (Doc. 98.); see Local Rule 3.01(c)

(providing a party fourteen days to respond). Due to Plaintiffs’ failure to respond, the Court

treats Defendants’ motions as unopposed. See id. (“If a party fails to timely respond, the

motion is subject to treatment as unopposed.”). As explained below, the Court denies

Defendants’ Motions 90 and 92; grants Motions 91, 94, and 95; and grants-in-part

Motions 93 and 96.

I. BACKGROUND

Plaintiffs Bradford and Helie Taylor suffered extensive injuries after an automobile

accident. Plaintiffs sued Chris Allworth and Shandex Truck, Inc., for their injuries in the

Circuit Court for the Twelfth Judicial Circuit, in and for Manatee County, Florida. (Doc.

1-1.) Defendants subsequently removed to this Court. (Doc. 1.) In anticipation of a

November 2021 trial, Defendants filed seven motions in limine, seeking rulings from this

Court on the admissibility of evidence.

Il. LEGAL STANDARD

A motion in limine is a motion to exclude or admit “evidence before the evidence is

actually offered.” Luce v. United States, 496 U.S. 38, 40 n.2 (1984). While motions in

limine provide courts with the opportunity to rule on thorny evidentiary issues outside the

time pressure of trial, courts should hesitate before “rul[ing] on subtle evidentiary questions

outside a factual context.” Id. at 41. “In fairness to the parties and their 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). Because motions in limine are preliminary in nature, “any party may seek

reconsideration at trial.” Conklin v. R T Eng’g Corp., No. 3:17-CV-415-J-39JRK, 2018

WL 7291430, at *1 (M.D. Fla. Nov. 16, 2018) (Davis, J.) (citation omitted).

Federal law governs the admissibility of evidence in federal courts siting in diversity.

See Health v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997); Flury v. Daimler

Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) (noting that in diversity cases, the

Federal Rules of Evidence govern the admissibility of evidence).

Ill. ANALYSIS

Defendants’ Motions may be grouped into two: half ask this Court to admit or rule

on the admissibility of Defendants’ evidence, (Docs. 91, 92, and 95); the other half asks

this Court to exclude or limit Plaintiffs’ witness testimony, (Docs. 90, 93, 94, and 96).

a. Motion to Admit Plaintiff Bradford Taylor’s Pre-accident Medical History

(Doc. 91)!

Defendants seek to admit Bradford Taylor’s pre-accident medical history.

Specifically, Defendants point to Bradford Taylor’s medical treatment at Spalding

Regional Hospital for lower back pain.

The history Bradford Taylor’s prior injury is relevant to this suit, which will likely

focus on the cause of his injuries. Presumptively, relevant evidence is admissible. See Fed.

R. Evid. 401. Since Plaintiffs have not responded, the Court has no reason to doubt

Defendants’ representations on this evidence or to find these records would be unduly

prejudicial. See Fed. R. Evid. 403. Accordingly, the Court grants Defendants’ motion to

admit Plaintiff Bradford Taylor's medical records as described in Defendants’ motion.’

(Doc. 91.)

b. Motion to Admit Surveillance Video and Investigation Report (Doc. 92)

1 Oddly, Defendants title this motion “Unopposed” yet include a certification at the end that “Counsel for

the opposing party objects to this Motion in its entirety.” (Doc. 91 at 4.)

former counsel stipulated to the admissibility of these records on March 1, 2021. (Doc. 91 at

Defendants seeks to admit video surveillance footage depicting Bradford Taylor

engaging in physical activities after his accident, along with an investigative report. (Doc.

92 at 2.) While this evidence is likely admissible if authenticated, the Court declines to

admit it at this juncture.

Defendants hired Daniel DeCoursey, an investigator at Blue Line Investigative

Solutions, to surveil Bradford Taylor from December 1, 2020, through December 4, 2020.

(Id. at 2.) At the conclusion of his investigation, DeCoursey provided Defendants with

video of Bradford Taylor and an investigative report that detailed his observations. On

December 11, 2020, Defendants provided the videos and report to Plaintiffs. (Id.)

Plaintiffs have not contested that the video depicts Bradford Taylor, the authenticity of the

video, or its legality. Plaintiffs have also not attempted to depose DeCoursey. (Id. at 3.)

First-hand observations of Bradford Taylor’s mobility and activity after the accident

are unquestionably probative on a key issue in this case and thus relevant to the disposition

of this action. See Fed. R. Evid. 401. And Plaintiffs’ failure to respond leaves the prejudice

side of the scale entirely empty.? See Fed. R. Evid. 403. As such, the videos and reports

would be admissible to impeach any testimony from Bradford Taylor or others that “that

he is unable to perform certain activities due to his alleged injuries and pain.” (Doc. 92 at

2.) Therefore, the Court expects that the video and report will be admissible once they

3 The calculus might change if a party were to establish that the surveillance violated federal or Florida law.

become relevant to impeachment of Bradford Taylor’s testimony.

That said, the Court denies Defendants’ motion to pre-admit the video and report.

Before evidence may be admitted, the proponent must satisfy the authentication

requirements of Federal Rule of Evidence 901, which requires “sufficient evidence to

support a finding that the item is what the proponent claims it is.” See, e.g., United States

v. Broomfield, 591 F. App’x 847, 851-52 (11th Cir. 2014) (explaining the standard of

proof); United States v. Belfast, 622 F.3d 783, 819 (11th Cir. 2010) (explaining the

operation of Rule 901(b)). Defendants have not tried to authenticate the video or the

report. Accordingly, the Court denies Defendants’ request to pre-admit the document or

decide now that DeCoursey’s testimony will be unnecessary; Defendants’ Motion is denied.

(Doc. 92.)

c. Motion to Admit Bradford Taylor’s Prior Convictions (Doc. 95)

Defendants seek a ruling from this Court that Bradford Taylor’s prior criminal

convictions are admissible for impeachment purposes at trial. (Doc. 95.) Specifically,

Defendants point to Bradford Taylor's convictions for felony forgery in 2002 and

misdemeanor theft in 2002.* These convictions are admissible.

i. Legal Standard

A witness’s prior criminal conviction may be admitted for impeachment or to attack

4 Since Plaintiff’ have failed to respond, the Court treats the motion as unopposed and accepts all factual

allegations as true.

the witness’s character for truthfulness. See Fed. R. Evid. 608(b), 609. As relevant here,

crimes involving honesty “must be admitted” if the court can readily establish that one of

the elements of the crime was “a dishonest act or false statement.” Fed. R. Evid. 609(a)(2).

However, a conviction—even one involving dishonesty—is subject to a stricter test

for admission after 10 years. It is only admissible if “its probative value”—in the light of all

relevant circumstances—“substantially outweighs its prejudicial effect;” and if the

proponent gives an adverse party reasonable notice of its intent to use the conviction. Fed.

R. Evid. 609(b).

ii. Application

Bradford Taylor’s convictions are admissible. Bradford Taylor was convicted for

felony forgery and misdemeanor theft by deception. Such acts are certainly probative of a

witness's character for truthfulness. See Fed. R. Evid. 608(b); Ad-Vantage Tel. Directory

Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1464 (11th Cir. 1994)

(reasoning that acts like “forgery, perjury, and fraud” reveal “a disregard for truth that would

case doubt on a witness’s veracity”). Further, it is readily apparent to the Court that both

of these crimes involve proving or admitting an act of dishonesty. As such, both convictions

fit within the ambit of Rule 609(a)(2).

Since these convictions are over ten years old, they are only admissible if their

probative value “substantially outweighs” their prejudicial effect. Fed. R. Evid. 609(b).°

Defendants argue these convictions “have strong impeachment value as they go directly to

the truthfulness and honesty of [Bradford Taylor].” (Doc. 95 at 3.) Since Bradford Taylor

is one of the plaintiffs in this case, the credibility of his testimony will likely be “extremely

important” at trial. (Id. at 4); see Knight through Kerr v. Miami-Dade Cnty., 856 F.3d

795, 817 (11th Cir. 2017) (“[The Eleventh Circuit] has previously recognized that ‘[t]he

implicit assumption of Rule 609 is that prior felony convictions have probative value.”

(quoting U.S. v. Burston, 159 F.3d 1328, 1335 (11th Cir. 1998))). Since Plaintiffs have

not identified any prejudice from the admission of this evidence, the Count finds that the

clear probative value of admitting the convictions substantially outweighs any prejudice;

Defendants’ motion is granted. (Doc. 95.)

d. Motions to Limit Testimony of Dr. Hayes & Dr. Foley (Docs. 90 & 94)

Defendants’ file two Motions seeking to limit the opinion testimony of Plaintiffs’

retained experts, Dr. Hayes and Dr. Foley. (Docs. 90, 94.) Plaintiffs’ Rule 26 disclosures

identify both as retained experts. (Doc. 90 at 2; Doc. 94 at 1.) Defendants seek to prevent

these experts from offering causation or permanency opinions. (Doc. 90 at 1; Doc. 94 at

1.)

i. Dr. Hayes (Doc. 90)

5 Plaintiffs have received adequate notice of the Defendants’ intent to use this evidence by the filing of this

Motion. See Fed. R. Evid. 609(b)(2).

Rule 26 requires parties to exchange certain information before trial and without

request. See Fed. R. Civ. Proc. 26(a). As relevant here, a party must disclose the identity

of an expert witness and provide a “a written report” that is “prepared and signed by the

witness.” Fed. R. Civ. Proc. 26(a)(2)(B). This report must contain “a complete statement

of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ.

Proc. 26(a)(2)(B)(i).

As such, Plaintiffs may not ask Dr. Hayes to provide opinions beyond the scope of

his Rule 26 report. Defendants’ Motion, in essence, asks this Court to enforce that rule by

limiting Dr. Hayes’s testimony to the opinions contained within his report.° (Id.) While

Rule 26 certainly requires this limitation, the Court does not grant Defendants’ motion

now. Defendants do not provide the Court with any reason to expect that Plaintiffs would

ask Dr. Hayes to give opinions on matters beyond his knowledge, competence, or his

written report. This Court will—of course—enforce the Federal Rules of Evidence and

Civil Procedure, but it will not issue prophylactic orders without cause to believe a party

intends to violate those rules. Conklin, 2018 WL 7291430, at *1 (“Motions in limine

should be limited to specific pieces of evidence and not serve as reinforcement regarding

6 The Court denied Defendants’ motion for partial summary judgment, partially, on the basis of Dr. Foley’s

deposition testimony in which he opined on the permanency of Mrs. Taylor’s injuries. (Doc. 82 at 6.)

Defendant did not argue that these opinions were outside the scope of Dr. Foley’s Rule 26 report.

Accordingly, the Court did not address the issue in its order denying the motion for partial summary

judgment.

the various rules governing trial.”). Accordingly, Defendants’ motion is denied. (Doc. 90.)

ii. Dr. Foley (Doc. 94)

As to Dr. Foley, Defendants present a similar but more compelling argument.

Plaintiffs’ Rule 26 expert disclosure documents state that Dr. Foley is expected to testify as

to “causation of injury.” (Doc. 94 at 2.) However, Dr. Foley’s written report did not provide

any opinion on the cause of Plaintiffs’ injury or its permanency. Nor have Plaintiffs’

provided Defendants any other information related to Dr. Foley’s causation opinions. (Id.

at 2.)

As such, to the extent Plaintiffs intend to ask Dr. Foley to provide an opinion on

the causation of Plaintiffs’ injury or its permanency, they have failed to comply with Rule

26’s requirements that the expert’s written report contain “a complete statement of all

opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. Proc.

26(a)(2)(B)(i). As a result, Plaintiffs are “not allowed to use that [undisclosed] information”

at trial. Fed. R. Civ. Proc. 37(c)(1).’ The Court grants Defendants’ motion; Dr. Foley may

not provide opinion on the causation or permanence of Plaintiffs’ injuries because these

opinions were not contained within his Rule 26 report. Instead, his testimony will be

7Tn the light of Plaintiffs’ failure to respond to this Motion, the Court finds that Plaintiffs have not met

their burden to show “the failure was substantially justified or is harmless.” Fed. R. Civ. Proc. 37(c)(1); see

Mitchell v. Ford Motor Co., 318 F. App’x 821, (11th Cir. 2009) (observing that the nondisclosing party

has the burden of establishing that the failure was justified or harmless (citing Leathers v. Pfizer, Inc., 233

F.R.D. 687, 697 (N.D. Ga. 2006))). In addition, Defendants provide strong arguments that Plaintiffs’

failure to timely provide these opinions would cause prejudice if these opinions were admitted at trial. (Doc.

94 at 3.)

circumscribed to the opinions he provided in his report, which center on the existence of

Plaintiffs’ injuries.

e. Motion to Preclude Testimony from Jennifer Montano (Doc. 93)

In Motion 93, Defendants’ ask the Court to completely exclude Jennifer Montano

from testifying on Bradford Taylor’s medical expenses. (Doc. 93 at 1.) Montano—one of

Plaintiffs’ retained experts—is a Certified Professional Coder. (Id. at 2.) Plaintiffs’ initially

informed Defendants that she would testify “regarding the reasonableness of the charges

for the medical services received by [Bradford Taylor].” Id.) Defendants lodge several

attacks on Montano’s testimony. Most focus on two fronts: the necessity of medical care

and the reasonableness of the cost of medical care. The Court concludes that Montano

may not testify as to the first but may as to the second, provided her testimony comports

with the appropriate foundation being laid by Plaintiffs.

Defendants ask for the Court to preclude Montano from giving an opinion on

whether the medical treatment Bradford Taylor received was necessary. Montano, a

professional coder and not a medical professional, is not qualified to give an opinion, or

otherwise testify as an expert on what treatment was medically necessary. (Doc. 93 at 2, 5.)

Montano conceded as much in her deposition testimony. (Doc. 93 at 5.) As such, Montano

is not qualified as an expert and may not give an opinion on this subject.

Defendants also wish to prevent Montano from giving an opinion on whether the

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medical bills were reasonable. (Doc. 93 at 5.) As a Certified Professional Coder, Montano

presumably is qualified to “speak to how [medical] charges are coded.” (Doc. 93 at 4.) In

preparation for this case, Montano reviewed the fees listed on the facility’s medical bill

ledger for the CPT codes*® charged to Bradford Taylor while he was a patient. (Doc. 93 at

2.) This information likely allows Montano to give an opinion on whether the fees the

facility regularly charges for the relevant CPT codes were reasonable. See, e.g., Castellanos

v. Target Corp., 568 F. App’x 866, 866 n.2 (11th Cir. 2014) (reasoning that a coder’s

testimony likely would be admissible for a “conflict over the reasonableness of charges for

medical services[] assumed to be delivered”). Indeed, that testimony appears to be exactly

what Plaintiffs retained Montano to do. (Doc. 93 at 2.)

Defendants point out that Montano did not view Bradford Taylor’s medical bills

and that she does not know what treatment he received. (Id. at 2, 4.) She admits that she

never asked to do a “coding analysis” to confirm that the codes input by the facility match

the underlying medical services or treatment provided to Bradford Taylor. (Id. at 2.) These

obvious shortcomings do not justify excluding Montano entirely. She may testify that the

CPT codes comport with the regular fees charged by the facility. But, if Defendants’

summary of her report and deposition testimony is accurate, the Plaintiffs will likely be

unable to establish a relevant foundation for Montano to testify to whether the codes and

® CPT (Current Procedural Terminology) codes are unique numbers assigned to the various services a

medical provider may supply to a patient.

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medical care themselves were reasonable. On this score then, Defendants’ have merely

raised deficiencies in Montano’s knowledge and preparation that they may pursue on cross

examination.

Accordingly, the Court grants Defendants’ motion in part; Montano may not testify

on whether the medical procedures performed in the past or expected in the future were or

are medically necessary. However, the Court does not, at this time, preclude Montano from

giving an opinion on whether the medical costs contained in the medical bill ledger are

reasonable or on the process of CPT coding.’

f. Motion to Preclude Expert Testimony of Plaintiffs’ Treating Physicians

(Doc. 96)

Finally, Defendants seek to prevent physicians who treated Plaintiffs from offering

expert testimony or opinions on the issues of causation, severity, and permanency of

injuries.'° (Doc. 96 at 2.) Plaintiffs identified several treating medical providers as non-

retained experts in their Rule 26 disclosures, stating the expectation that these individuals

will offer opinions at trial regarding “liability, causation and damages” for Plaintiffs’

The Court declines to consider whether Montano’s opinion rests on “inadmissible hearsay” or whether

her testimony should be excluded as overly prejudicial due to the danger of confusion under Rule 403 at

this juncture. (Doc. 93 at 3-5.) See Vigneulle v. Tahsin Indus. Corp., USA, No. 2:15-C V-2268-SLB, 2019

WL 4409220, at *1 (N.D. Ala. Feb. 19, 2019) (“[I]t is the better practice to wait until trial to rule on

objections when admissibility substantially depends upon what facts may be developed there.” (quotation

omitted)).

© While Florida’s substantive law governs Plaintiffs’ burden of proof on causation, Federal Courts sitting

in diversity “apply federal law to determine whether the expert testimony proffered to prove causation is

sufficiently reliable.” Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010) (citing

Flury, 427 F.3d at 944). The Defendants reliance on Florida law governing the introduction of expert

witnesses is thus misplaced. (Doc. 96 at 2-5.)

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injuries. (Id.)

Defendants makes two arguments in support of exclusion. First, Defendants assert

that treating physicians are not real experts, so they should not be allowed to give opinions

like experts. (Id. at 2.) Second, Defendants claim that—even as fact witnesses—these

treating physicians have no personal experience from which to make a judgment on the

cause of plaintiffs’ injuries. (Id.) This Court agrees with the first argument and defers on

the second.

i. Treating Medical Practitioners Are Not Expert Witnesses

The Federal Rules of Evidence allow an expert witness “wide latitude” to testify on

matters of opinion, without requiring first-hand knowledge. Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 592 (1993). Because “no other kind of witness is free to opine”

in this manner, unbridled expert testimony poses particular dangers. United States v.

Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). As such, trial courts have a “gatekeeping”

function, conducting “a preliminary assessment” to ensure that the proffered expert is

qualified and that her opinion is helpful to the jury and is based on reliable methods.

Daubert, 509 U.S. at 592, 597. The Eleventh Circuit has developed a “rigorous three-part

inquiry” to assess experts:

(1) the expert is qualified to testify competently regarding the matters he

intends to address; (2) the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined by the sort of inquiry

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mandated in Daubert; and (3) the testimony assists the trier of fact, through

the application of scientific, technical, or specialized expertise, to understand

the evidence or to determine a fact in issue.

Frazier, 387 F.3d at 1260. The proponent of the expert testimony bears the burden of

showing, by a preponderance of the evidence, that the testimony satisfies each prong. See

Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).

In this case, Plaintiffs have identified several treating physicians as “non-retained

experts.” (Doc. 96 at 2.) Defendants argue that these individuals are not proper experts for

a variety of reasons. (Id. at 2-13.) As explained above, Plaintiffs bear the burden of

demonstrating that the treating physicians satisfy the “basic requirements—qualification,

reliability, and helpfulness.” Frazier, 387 F.3d at 1260. Not only have Plaintiffs failed to

carry their burden by a preponderance of the evidence, they have not provided this Court

with any information. Accordingly, this Court has no basis upon which to accept them as

experts. In fact, to do so would be to abdicate this Court’s important role as gatekeeper of

technical evidence. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999)

(“[T]he Federal Rules of Evidence ‘assign to the trial judge the task of ensuring that an

expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”

(quoting Daubert, 509 U.S. at 597)). Thus, the treating physicians will be excluded as

expert witnesses in the light of Plaintiffs’ silence.

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ii. Treating Medical Practitioners Are Fact Witnesses

The treating physicians and medical providers, however, can testify as fact witnesses

to the extent their personal knowledge and observations of Plaintiffs’ injuries allows them

to do so. See United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005)

(“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.” (citation

omitted)); see also Morrow v. Brenntag Mid-S., Inc., 505 F. Supp. 3d 1287, 1293 (M.D.

Fla. 2020) (Covington, J.) (allowing a doctor to testify as a lay witness after finding the

doctor unqualified as an expert).

Defendants make several arguments that the treating physicians do not have

sufficient personal knowledge of Plaintiffs’ injuries to testify on their cause or permanence.

(Doc. 96 at 10-11.) While some of Defendants’ arguments are compelling, the Court

declines to rule on this issue until trial or it becomes apparent that Plaintiffs intend to

request that these individuals testify on matters beyond their capacity as lay witnesses. The

same restrictions on regular lay witnesses equally apply to treating physicians in that the

party proffering their testimony must establish the necessary foundation. In other words,

Federal Rule of Evidence 602 continues to govern: “A witness may testify to a matter only

if evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter.”

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Accordingly, the Court grants Defendants’ Motion 96 in part. The treating

physicians and medical providers are not experts, but the Court does not at this time place

any additional limitation on their testimony.

IV. CONCLUSION

For the foregoing reasons, the Court denies Defendants’ Motions 90 and 92; grants

Motions 91, 94, and 95; and grants in part Motions 93 and 96. Accordingly, the following

is ORDERED:

(1) Defendants’ Motion 90 is DENIED.

(2) Defendants’ Motion 91 is GRANTED.

(3) Defendants’ Motion 92 is DENIED.

(4) Defendants’ Motion 93 is GRANTED-IN-PART. Jennifer Montano may not

offer an expert opinion about the necessity of medical care, but the Court

declines to limit the scope of her expert testimony further at this time as

delineated above.

(5) Defendants Motion 94 is GRANTED.

(6) Defendants’ Motion 95 is GRANTED.

(7) Defendants Motion 96 is GRANTED-IN-PART. Plaintiffs’ treating

physicians may not testify as experts, but the Court declines to delineate the

scope of their testimony as fact witnesses at this time.

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ORDERED in Tampa, Florida, on September 22, 2021.

4 Mizelle □

United States District Judge

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