The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JANET MOKRIS,
Plaintiff,
v. Case No: 2:20-cv-34-JES-MRM
UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motions in
Limine and Memorandum of Law in Support (Doc. #63) and plaintiff’s
Motion in Limine “Engineer Cook No Medical Opinion” (Doc. #71).
Defendant filed Responses (Docs. ## 70, 79). This is a slip-and-
fall action, brought pursuant to the Federal Tort Claims Act, 28
U.S.C. § 2671, arising from plaintiff’s alleged fall at a United
States Postal Office. A bench trial is set for March 30, 2022.
For the reasons set forth, both motions are denied.
I.
A motion in limine is a “motion, whether made before or during
trial, to exclude anticipated prejudicial evidence before the
evidence is actually offered.” Luce v. United States, 469 U.S.
38, 40 n.2 (1984). These motions “are generally disfavored.”
Acevedo v. NCL (Bah.) Ltd., 317 F. Supp. 3d 1188, 1192 (S.D. Fla.
2017). “Evidence is excluded upon a motion in limine only if the
evidence is clearly inadmissible for any purpose.” Id. “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.” McHale v. Crown Equip. Corp., No. 8:19-cv-707-VMC-SPF,
2021 WL 4527509, at *1, at *3 (M.D. Fla. Oct. 1, 2021) (citing LSQ
Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320, 1337 (M.D.
Fla. 2012)). “Nor may a party use a motion in limine to sterilize
the other party’s presentation of the case.” Harris v. Wingo, No.
2:18-CV-17-FTM-29MRM, 2021 WL 5028201, at *1 (M.D. Fla. Oct. 29,
2021) (cleaned up). Additionally, as the Supreme Court has
cautioned:
The ruling is subject to change when the case
unfolds, particularly if the actual testimony
differs from what was contained in the
defendant’s proffer. Indeed even if nothing
unexpected happens at trial, the district
judge is free, in the exercise of sound
judicial discretion, to alter a previous in
limine ruling.
Luce, 469 U.S. at 41–42. “A denial of a motion in limine is not
a ruling which affirmatively admits any particular evidence,”
Harris, 2021 WL 5028201, at *1, and does not preserve an issue for
appellate review. United States v. Gari, 572 F.3d 1352, 1356 n.2
(11th Cir. 2009). The movant bears the burden of demonstrating
that the evidence is inadmissible on any relevant ground. United
States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010).
“The purpose of a motion in limine is to permit the pre-trial
resolution of evidentiary disputes without having to present
potentially prejudicial evidence in front of a jury.” Singh v.
Caribbean Airlines Ltd., No. 13-20639-CIV, 2014 WL 4101544, at *1
(S.D. Fla. Jan. 28, 2014) (citations omitted). However, “[t]he
rationale underlying pre-trial motions in limine does not apply in
a bench trial, where it is presumed the judge will disregard
inadmissible evidence and rely only on competent evidence.” Id.
(citations omitted). “When an action proceeds as a bench trial,
the pretrial consideration of such motions ‘weighs heavily in favor
of denying the motions in limine and addressing the issues if and
when they come up at trial.’” Perez v. United States, No. 8:20-
CV-769-SPF, 2021 WL 3371498, at *2 (M.D. Fla. Aug. 3, 2021)
(quoting Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp.,
616 F. Supp. 2d 1250, 1256 (M.D. Fla. 2009)). “Indeed, the more
prudent course of action in a bench trial is often to resolve
evidentiary doubts in favor of admissibility.” Id. (citing Singh,
2014 WL 4101544, at *1).
II.
In her first motion, plaintiff seeks to exclude nine different
categories of evidence. The motion is denied in its entirety.
First, the Court applies the Federal Rules of Evidence. ML
Healthcare Services, LLC v. Publix Super Markets, Inc., 881 F.3d
1293, 1299 (11th Cir. 2018). Yet, other than off handed cites to
Federal Rules of Evidence 401-403 and Federal Rules of Civil
Procedure 26 and 35, plaintiff only cites Florida case law.
Second, this case is proceeding to a bench trial, thus,
pretrial consideration of any of plaintiff’s requests weighs
heavily in favor of denial.
Third, plaintiff fails to carry her burden of demonstrating
what evidence she seeks to exclude, why it must be excluded
pretrial, or that her requests are the proper subject of a motion
in limine. The evidence sought to be excluded in requests 1, 3,
6, 8, and 9 may indeed be admissible depending on the foundation
at trial. In request 4, plaintiff seeks to exclude opinions by
defense experts that are not listed in their reports; however,
plaintiff does not explain this request nor is the Court aware of
1
the extent of the request. In request 7, plaintiff seeks to
preclude defendant from referring to a “compulsory” medical
examination as an “independent” medical examination; however,
plaintiff may demonstrate any purported lack of independence
2
through cross-examination.
1
To the extent plaintiff’s request concerns defense expert
Bradley T. Cook, who is the subject of plaintiff’s second motion,
the Court discusses that below.
2
Plaintiff stipulated to an independent medical examination,
thus, the IME was not “compulsory.” (Doc. #70-2.)
The Court takes a moment to discuss paragraph 2, in which
plaintiff seeks to exclude “mention of health insurance, Medicare,
Workers’ Compensation insurance, or life insurance.” Certain
collateral source evidence may be inadmissible. Strickler v.
Walmart Stores E., LP, No. 218CV781FTM38MRM, 2020 WL 4261303, at
*2 (M.D. Fla. July 24, 2020), reconsideration denied, No.
218CV781FTM38MRM, 2020 WL 5587545 (M.D. Fla. Sept. 18, 2020)
(holding a plaintiff “can only offer evidence of the discounted
amounts Medicare actually paid;” however, evidence of public
insurance programs, like Medicaid, is inadmissible). However,
plaintiff’s request, as written, is overbroad and lacks clarity.
The Court is left guessing whether all these coverages are at issue
or not. Plaintiff also fails to discuss the nuances of collateral
source rules, including the Court’s responsibility to set off
certain amounts post-trial, Fla. Stat. § 768.76, what evidence is
inadmissible, and whether the matter proceeding to a bench trial
weighs on when the Court receives such evidence. Accordingly,
request 2 is denied. The Court reminds counsel that a denial of
a motion in limine does not mean the evidence will be admitted at
trial. If an objection(s) is made to such evidence, the Court
will make its determination based on the state of the record at
that time.
III.
In her second motion, plaintiff seeks to preclude defendant’s
expert, Bradley T. Cook, from offering any medical opinion
3
testimony. (Doc. #71.) Defendant seeks to offer Cook, a
biomechanical engineer, to provide testimony about whether the
mechanics of plaintiff’s fall could result in her alleged injury.
Plaintiff argues that Cook “is not a medical doctor and therefore
cannot offer any opinions on medical issues including causation as
to Plaintiff’s injuries.” (Id.) Notably, Plaintiff cites no legal
authority at all.
To the extent plaintiff is challenging Cook’s qualifications
to provide an opinion about whether the mechanics of plaintiff’s
fall could result in her alleged injury, Cook, based on the CV
attached to his report (Doc. #71-1, p. 7), is qualified to do so.
Cook’s background as a bio-medical engineer demonstrates that he
is qualified to provide testimony about whether the mechanics of
plaintiff’s fall could result in her alleged injury. E.g., Bostick
v. State Farm Mut. Auto. Ins. Co., 314 F. Supp. 3d 1265, 1276 (M.D.
3
Again, this case is set for a bench trial which diminishes
the need for a pretrial consideration of plaintiff’s motion. See,
e.g., Metro. Life Ins. Co. v. Liebowitz, No. 2:20-CV-276-JES-MRM,
2021 WL 4244210, at *3 (M.D. Fla. Sept. 17, 2021) (citing cases)
(discussing how a judge need not necessarily conduct a Daubert
hearing or strike testimony prior to a bench trial because the
judge may make final admissibility and weight determinations after
receiving the testimony).
Fla. 2018), aff’d, 774 F. App'x 600 (11th Cir. 2019) (quotation
omitted) (“it is well-established in the case law that
biomechanical engineers...are qualified to testify about how
forces may affect or injure an individual); Robinson v. Lambert,
No. 615CV1896ORL22LRH, 2019 WL 7971852, at *6 (M.D. Fla. Dec. 18,
2019) (denying motion to exclude bio-medical engineer).
Plaintiff’s motion is denied.
Accordingly, it is now
ORDERED :
1. Plaintiff’s Motions is Limine (Doc. #63) are DENIED.
2. Plaintiff’s Motion in Limine Engineer Cook No Medical
Opinion (Doc. #71) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 1lith day of
March, 2022.
as QL
ds » □□ Ab Look
JGHN E. STEELE
sq IOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record