Porras v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARISA PORRAS,

Plaintiff,

v. Case No: 8:21-cv-423-JSS

UNITED STATES OF AMERICA,

Defendant.

___________________________________/

ORDER

Plaintiff seeks to exclude Defendant’s experts’ testimony under Daubert v. Merrell

Dow Pharm., 509 U.S. 579 (1993). Plaintiff filed her Motion to Exclude Expert

Testimony of Dr. Jeremy Cummings (Dkt. 57), Motion to Exclude Expert Testimony

of Dr. James M. Bullock (Dkt. 59), and Motion to Exclude Expert Testimony of Dr.

Neil Schechter (Dkt. 61) (“Daubert Motions”), and Defendant filed responses in

opposition (Dkts. 75, 76, 77). Additionally, Plaintiff seeks entry of partial summary

judgment (“Summary Judgment Motion”) (Dkts. 63, 82), which Defendant opposes

(Dkt. 71). On April 8, 2022 and April 25, 2022, the court held hearings on the

Motions. For the reasons set forth below, Plaintiff’s Daubert Motions (Dkts. 57, 59,

61) and Summary Judgment Motion (Dkt. 63) are denied.

BACKGROUND

This action arises out of a March 5, 2019 motor vehicle accident between

Plaintiff, Marisa Porras, and United States Postal Service employee, Natasha Michelle

Prieto, in Manatee County, Florida. (Dkt. 1.) As a result, Plaintiff brings this lawsuit

against the United States of America (“Defendant”) under the Federal Tort Claims

Act, 28 U.S.C. §§ 1346(b)(1) and 2674 et seq. (“FTCA”), to recover for injuries

sustained in the accident. (Id.) In the complaint, Plaintiff alleges that Ms. Prieto was

negligent while acting within the course and scope of her employment as a postal truck

driver. (Id.) Defendant answered, asserted affirmative defenses, and filed a

counterclaim against Plaintiff. (Dkt. 7.) The parties stipulated to the dismissal of the

counterclaim. (Dkt. 97.)

The parties proceeded through discovery and are now preparing for an August

2022 bench trial.1 Plaintiff now seeks to exclude Defendant’s experts and moves for

partial summary judgment.

A. Daubert Motions (Dkts. 57, 91, 61)

Plaintiff requests that the court exclude the opinion testimony of Drs. Jeremy

Cummings, James M. Bullock, and Neil Schechter on the grounds that their opinions

are wholly unreliable. Defendant responds that Plaintiff’s Daubert Motions are

motions in limine and that “the gatekeeping requirements of Daubert are not implicated

here.” (Dkts. 75, 76, 77.) Defendant further maintains that because this case would

not involve a jury trial, “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.’” (Dkt. 77 at 5 (quoting Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp.,

1 As this action is brought under the FTCA, there is no right to trial by jury. 28 U.S.C. § 2402.

616 F. Supp. 2d 1250, 1256 (M.D. Fla. 2009)). Nonetheless, Defendant maintains that

the opinions offered by these witnesses are sufficiently reliable, reasonably certain, and

will assist the trier of fact. (Id.)

In determining the admissibility of expert testimony under Federal Rule of

Evidence 702, “[t]he court serves as a gatekeeper, charged with screening out experts

whose methods are untrustworthy or whose expertise is irrelevant to the issue at

hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). A

determination of admissibility requires findings that “(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 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.” United States v. Frazier, 387 F.3d 1244,

1260 (11th Cir. 2004) (en banc) (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158

F.3d 548, 562 (11th Cir. 1998)). The party offering an expert has the burden of

satisfying each of these elements by a preponderance of the evidence. Cook ex rel. Estate

of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1107 (11th Cir. 2005).

The focus of the Daubert analysis is “on principles and methodology, not on the

conclusions that they generate.” Daubert, 509 U.S. at 595. “Thus, the proponent of

the [expert] testimony does not have the burden of proving that it is scientifically

correct, but that by a preponderance of the evidence, it is reliable.” Allison v. McGhan

Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (citing In re Paoli R.R. Yard PCB Litig.,

35 F.3d 717, 744 (3rd Cir. 1994)). “The evidentiary requirement of reliability is lower

than the merits standard of correctness. Daubert states that a judge should find an

expert opinion reliable under Rule 702 if it is based on ‘good grounds,’ i.e., if it is based

on the methods and procedures of science.” In re Paoli, 35 F.3d at 744. Hence “in

most cases, objections to the inadequacies of a [scientific] study are more appropriately

considered an objection going to the weight of the evidence rather than its

admissibility.” Quiet Tech. DC-8, Inc. v. Hurel–Dubois UK Ltd., 326 F.3d 1333, 1341

(11th Cir. 2003) (quoting Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1188 (9th Cir.

2002)).

Thus, the court acts as gatekeeper to prevent speculative and unreliable “expert”

testimony from reaching the jury. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1291

(11th Cir. 2005) (noting that the “task of evaluating the reliability of expert testimony

is uniquely entrusted to the district court under Daubert”). The gatekeeping role is

“significant” because an “expert’s opinion ‘can be both powerful and quite

misleading.’” Frazier, 387 F.3d at 1260 (quoting Daubert, 509 U.S. at 595).

However, in actions set for a non-jury trial, such as this matter, “[t]here is

considerable legal support for the proposition that the Daubert gatekeeping function is

relaxed.” See SE Property Holdings, LLC v. Center, No. 15-cv-0033-WS-C, 2017 WL

242610, at *3 (S.D. Ala. Jan. 19. 2017). That is because the court, sitting as trier of

fact, is in the best position to distinguish between persuasive and insufficient expert

evidence at trial. See, e.g., United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)

(“There is less need for the gatekeeper to keep the gate when the gatekeeper is keeping

the gate only for himself.”); Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000) (“Most

of the safeguards provided for in Daubert are not as essential in a case such as this

where a district judge sits as the trier of fact in place of a jury.”); Ass Armor, LLC v.

Under Armour, Inc., No. 15-cv-20853-Civ-COOKE/TORRES, 2016 WL 7156092, at

*4 (S.D. Fla. Dec. 8, 2016) (“As this is a bench trial without a jury, however, the need

for an advance ruling to exclude [an expert’s] testimony is superfluous and

unnecessary.”).

Here, the court finds that Plaintiff’s concerns with Defendant’s experts are more

appropriately addressed at trial when all the facts can be considered in detail. See

Brown, 415 F.3d at 1269; N.W.B. Imports & Exports, Inc. v. Eiras, No. 3:03-cv-1071-J-2-

MMH, 2005 WL 5960920, at *1 (M.D. Fla. Mar. 22, 2005) (“Because this is a non-

jury trial, the gatekeeping purpose of Daubert is not implicated. The Court will

therefore receive [the expert’s] testimony, make a final admissibility decision and, if

admissible, accord it the weight, if any, it deserves.”); see also City of S. Miami v. Desantis,

No. 19-cv-22927-BLOOM/Louis, 2020 WL 7074644, at *6-7 (S.D. Fla. Dec. 3, 2020)

(discussing how borderline admissible evidence is less of concern for bench trials). If

any shortcomings regarding the experts’ qualifications arise or part of the experts’

testimony appear irrelevant or unreliable, Plaintiff may present her arguments through

“[v]igorous cross examination [and the] presentation of contrary evidence” at trial.

Daubert, 509 U.S. at 596; see also U.S. v. Ala. Power Co., 730 F.3d 1278, 1282–85 (11th

Cir. 2013) (the Daubert inquiry “is not intended to supplant” cross-examination and

presentation of contrary evidence). By proceeding in this manner, the court will be in

a better position to assess whether and how much weight to give Defendant’s experts’

testimony. See Huff v. United States, No. 19-cv-14100-MARTINEZ/MAYNARD,

2022 WL 1126713, at *4 (S.D. Fla. Apr. 4, 2022) (noting that “[t]he court, sitting as

trier of fact, is in the best position to distinguish between persuasive and shaky expert

evidence at trial and it is thus accepted that the importance of the pretrial exclusion

process contemplated by Daubert is lessened in that situation”); NBIS Constr. & Transp.

Ins. Servs., Inc. v. Liebherr-Am., Inc., No. 19-2777-AAS, ECF Doc. 96 (M.D. Fla. June

22, 2021) (denying without prejudice motion to exclude expert witness and noting that

“the court can address these issues with the benefit of the context of the trial and can

disregard inadmissible evidence”); Seitz v. United States, No. 2:14-cv-60-WCO, 2015

WL 13719668, at *4 (N.D. Ga. July 29, 2015) (denying motions to exclude expert

witnesses in an FTCA case since “the better time to address each exclusion request is

at the time of trial” especially “where the trier of fact is the court”); Bristol-Myers Squibb

Co. v. Andrx Pharm., Inc., 343 F. Supp. 2d 1124, 1131 (S.D. Fla. 2004) (advance rulings

on admission of evidence are unnecessary in bench trial “where the Court must

evaluate the evidence regardless of whether it ultimately decides to exclude it”).

As to Plaintiff’s contention that Dr. Bullock’s Second Supplemental Rule 26

Expert Disclosure should be excluded as untimely (Dkt. 59 at 16–17), the court notes

that Plaintiff was provided with the disclosure (Dkt. 59-1) before taking Mr. Bullock’s

deposition. As such, even if untimely, the court finds that the disclosure was harmless

as Plaintiff received this information well in advance of trial and prior to the

deposition. See Hewitt v. Liberty Mut. Grp., Inc., 268 F.R.D. 681, 682–83 (M.D. Fla.

2010) (“A failure to timely make the required disclosures is harmless when there is no

prejudice to the party entitled to receive the disclosure.”).

Accordingly, Plaintiff’s Motion to Exclude Expert Testimony of Dr. Jeremy

Cummings (Dkt. 57), Motion to Exclude Expert Testimony of Dr. James M. Bullock

(Dkt. 59), and Motion to Exclude Expert Testimony of Dr. Neil Schechter (Dkt. 61)

are denied without prejudice. Plaintiff may renew her arguments, if appropriate under

the circumstances, at trial.

B. Plaintiff’s Summary Judgment Motion (Dkt. 63)

Plaintiff moves for partial summary judgment on the issues of liability,

causation, and permanency. (Dkt. 63.) Defendant opposes the Summary Judgment

Motion, arguing that genuine issues of material fact exist. (Dkt. 71.)

Summary judgment is appropriate if no genuine dispute of material fact exists

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

The party moving for summary judgment must “cit[e] to particular parts of materials

in the record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other

materials” to support its position that it is entitled to summary judgment. Fed. R. Civ.

P. 56(c)(1)(A). “The court need consider only the cited materials” when resolving a

motion for summary judgment. Fed. R. Civ. P. 56(c)(3); see also HRCC, LTD v. Hard

Rock Café Int’l (USA), Inc., No. 16-17450, 2017 WL 3207125, at *2 (11th Cir. July 28,

2017) (per curiam) (holding that a district court does not err by limiting its review to

the evidence cited by the parties in their summary judgment briefs).

A factual dispute is “genuine” only if “a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is “material” if the fact could affect the outcome of the lawsuit under the governing

law. Id. The moving party bears the initial burden of identifying those portions of the

record showing a lack of a genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).

If the movant shows that no evidence supports the non-moving party’s case, the burden

then shifts to the non-moving party to show that there are, in fact, genuine factual

disputes which preclude judgment as a matter of law. Porter v. Ray, 461 F.3d 1315,

1320 (11th Cir. 2006).

To satisfy its burden, the non-moving party “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must go

beyond the pleadings and “identify affirmative evidence” which creates a genuine

dispute of material fact. Crawford-El v. Britton, 523 U.S. 574, 600 (1998). In

determining whether a genuine dispute of material fact exists, the court must read the

evidence and draw all factual inferences in the light most favorable to the non-moving

party and must resolve any reasonable doubts in the non-movant’s favor. Skop v. City

of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). The court will not weigh the evidence

or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003).

Summary judgment should only be granted “[w]here the record taken as a whole could

not lead a rational trier of fact to find for the non-moving party.” Matsushita, 475 U.S.

at 587.

As noted above, the court has jurisdiction over this lawsuit pursuant to the

FTCA. See 28 U.S.C. §§ 1346(b) and 2671 et seq. The FTCA includes a limited waiver

of sovereign immunity of the United States with respect to claims for money damages,

injury or loss of property, or personal injury caused by the negligent or wrongful act

or omission of any Government employee if the injury or loss was caused while the

employee was acting within the scope of their employment. 28 U.S.C. § 1346(b)(1).

Suits brought under the FTCA are governed by the “the law of the place where the act

or omission occurred.” Id. Accordingly, Florida law governs this negligence action,

as the accident occurred in Manatee County, Florida.

I. Liability

Plaintiff first argues that she is entitled to summary judgment as to liability

“[b]ecause almost all the evidence, including experts hired by both sides and the

physical evidence from the scene, support a finding that Ms. Prieto violated Ms.

Porras’ right of way and was therefore negligent.” (Dkt. 63 at 11.) In support of her

contention, Plaintiff points to the deposition transcripts of a Florida Highway Patrol

Trooper, who responded to the scene of the accident, and defense expert, Dr.

Cummings, who provided an accident reconstruction based on photographs taken at

the scene. (Id. at 3-6.) Plaintiff argues that both of these individuals have offered

testimony that Ms. Prieto’s vehicle was not fully established in the roadway and was

still in the process of merging into traffic when the impact with Plaintiff occurred. (Id.

at 3–6.) Plaintiff acknowledges, however, that Ms. Prieto testified that she was fully

established in the lane of travel when Plaintiff violated her right of way. (Id. at 6, 11,

12.) Notwithstanding, Plaintiff argues that Ms. Prieto’s testimony is “blatantly

contradicted” by the record evidence and that summary judgment as to liability is

appropriate since “the only evidence to the contrary is Ms. Prieto’s deposition

testimony.” (Id. at 12, 14.)

In response, Defendant relies on the testimony of Ms. Prieto, which as Plaintiff

concedes, portrays a different version of how the accident occurred. (Dkt. 71 at 1–2,

8–9.) Defendant further points to the portion of Dr. Cummings’ deposition testimony

to show that, although he disagreed with certain parts of Ms. Prieto’s version of events,

he did not form an opinion as to fault. (Id. at 10.) As such, Defendant contends that

genuine issues of material fact remain as to who is at fault for this accident. (Id. at 8.)

Under Florida law, Plaintiff may recover if she can demonstrate the United

States, acting through Ms. Prieto, was negligent. To establish negligence, four

elements must be shown: (1) duty of care, (2) breach of that duty, (3) causation, and

(4) damages. Jeffries v. Amery Leasing, Inc., 698 So. 2d 368, 370–71 (Fla. 5th DCA

1997). If Plaintiff establishes each of these elements, the court will also consider

Plaintiff’s negligence because under Florida law, the doctrine of comparative

negligence applies, which allows a court to apportion liability between a negligent

defendant and a negligent plaintiff. See Hoffman v. Jones, 280 So. 2d 431, 438 (Fla.

1973). Plaintiff bears the burden of proving fault on the part of Ms. Prieto by a

preponderance of the evidence and likewise, Defendant has the burden of proving any

negligence on the part of Plaintiff by a preponderance of the evidence.

In this case, Defendant has pointed to record evidence to create material issues

of fact as to the first two elements, duty and breach. Specifically, Ms. Prieto’s

testimony that the accident occurred differently than what others have stated

demonstrates that issues of fact remain as to whether Plaintiff exercised due care or

was comparatively at fault when the accident occurred. (Dkt. 54 at 43:20-25–46:1-13,

77:3-25–80:1, 83:1-25–93:1-7, 94:23-25–98:1-5.) Plaintiff’s contention that “almost all

the evidence, including experts hired by both sides and the physical evidence from the

scene, support a finding that Ms. Prieto violated Ms. Porras’ right of way and was

therefore negligent” goes to the weight and credibility of Plaintiff’s evidence.

However, at the summary judgment phase, “the Court cannot consider the relative

merits or credibility of the parties’ testimony or witnesses.” See Hicks v. United States,

No. 20-cv-61241-RAR, 2021 WL 5359724, at *2 (S.D. Fla. Nov. 16, 2021) (denying

summary judgment in FTCA case and noting that “cases arising from motor vehicle

accidents are rarely ripe for summary judgment” as “drivers involved in an accident

seldom recount identical versions of what happened”). As such, the court finds that

both parties have presented conflicting testimony as to the cause of the accident, and

that this conflicting testimony, and the likely need to assess the credibility of the

witnesses, create genuine issues of material fact which preclude the entry of summary

judgment. See Buending v. Town of Redington Beach, 10 F.4th 1125, 1130 (11th Cir.

2021) (stating that “[a] court may not weigh conflicting evidence or make credibility

determinations of [its] own. If the record presents disputed issues of fact, the court

may not decide them; rather, [it] must deny the motion and proceed to trial.”) (internal

quotation marks and citation omitted); Hendrix v. United States, No. 8:19-cv-1145-T-24-

AAS, 2020 WL 6393823, at *3 n.3 (M.D. Fla. Nov. 2, 2020) (noting that although an

expert opined that the accident in question could not have occurred the way the

plaintiff described it, the court was “not permitted to weigh the evidence on a motion

for summary judgment”).

To the extent Plaintiff contends that the record evidence “blatantly contradicts”

Ms. Prieto’s testimony, that contention is without merit. Plaintiff cites to Scott v.

Harris, 550 U.S. 372 (2007), which stated that “[w]hen opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.” Id. at 380. The circumstances

in Scott, however, are distinguishable from the circumstances present here. In Scott,

the Supreme Court noted that the “unrebutted record evidence” was raw dashboard

footage of the accident in question. Scott, 550 U.S. at 378. The Supreme Court stated

that the lower courts “should have viewed the facts in the light depicted by the

videotape.” Id. at 380–81. Here, however, there is no such video evidence, or anything

comparable. See Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010)

(“Where the video obviously contradicts Plaintiff’s version of the facts, we accept the

video’s depiction instead of Plaintiff's account.”) (quoting Scott, 550 U.S. 372). Thus,

the court will not weigh the evidence at this phase of the case and Defendant’s version

of the facts is and must be credited. See Morrison, 323 F.3d at 924; see also Shaw v. City

of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (“When considering the record on

summary judgment the evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.”) (internal quotation marks and citation

omitted).

Lastly, to the extent Plaintiff seeks summary judgment as to her degree of fault

(Dkt. 72 at 3), comparative negligence requires a factual assessment of comparative

fault. Narvaez v. Circle K. Stores, Inc., No. 8:14-cv-1549-T-TBM, 2015 WL 12762061,

at *3 (M.D. Fla. May 14, 2015) (citing Rodriguez v. Target Corp., No. 14-CIV-21115,

2014 WL 4954252, at *6 (S.D. Fla. Oct. 2, 2015)). Because the court finds a genuine

dispute of material fact regarding Ms. Prieto’s testimony and the cause of the accident,

summary judgment as to comparative fault is not appropriate at this time. See Krone

v. Dick’s Sporting Goods, Inc., No. 8:20-cv-2438-KKM-SPF, 2022 WL 486334, at *5

(M.D. Fla. Feb. 17, 2022) (noting that “[w]hen issues of fact exist as to the negligence

of one party, the comparative negligence inquiry precludes entry of judgment as a

matter of law”).

II. Causation

Plaintiff next argues that she is entitled to summary judgment on the issue of

causation. (Dkt. 63 at 12.) Specifically, Plaintiff states that “[s]ince both sides agree

that the collision has caused some injury to Plaintiff, Plaintiff is entitled to summary

judgment.” (Id. at 3.) In support of this contention, Plaintiff cites to the testimony of

defense experts, Drs. Bullock and Schechter to demonstrate that no genuine issue of

material facts exists as to whether the accident resulted in an exacerbation or

aggravation injuries. (Id. at 7–8, 12–13.)

Defendant argues in response, however, that both sides do not agree that the

accident caused injury to Plaintiff and there are disputed issues of material fact that

prevent the entry of summary judgment on causation. (Dkt. 71 at 11.) Defendant

relies on the testimony of defense expert, Dr. Marc Kaye, to show that genuine issues

of material fact remain. (Id. at 11–14.)

Under Florida law, the plaintiff must show that “the defendant’s negligence was

the probable cause of the plaintiff’s injury.” Hasenfus v. Secord, 962 F.2d 1556, 1560

(11th Cir. 1992); Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984)

(“Florida courts follow the more likely than not standard of causation and require

proof that the negligence probably caused the plaintiff’s injury.”). “A mere possibility

of such causation is not enough.” Hasenfus, 962 F.2d at 1560 (quoting Gooding, 445

So. 2d at 1018). Moreover, when there is a “significant disagreement regarding the

extent of [a plaintiff’s] injuries and their relation” to an accident, courts should allow

the presentation of all the evidence, “including medical evidence presented by experts

who are subject to rigorous cross-examination.” Demeritt v. Wal-Mart Stores E., No.

6:20-cv-89-PGB-GJK, 2021 WL 3082685, at *4 (M.D. Fla. June 4, 2021) (citation

omitted).

Upon review, the court finds that genuine issues of material fact remain

regarding the causation of Plaintiff’s cervical spine and right shoulder injuries. As

Defendant correctly notes, whether Plaintiff’s injuries were caused by—or at least

aggravated by—the car accident remain at issue. For example, regardless of whether

Dr. Bullock and Dr. Schechter definitively stated that Plaintiff’s injuries were caused,

exacerbated, or aggravated by the collision, Dr. Kaye has testified that in his medical

opinion they were not. (Dkt. 51-1 at 41:11-25–42:1-21; 46:12-18; 50:3-12; 51:16-20;

71:17-25–72:1-6; 74:20-25–75:1-2.) As such, genuine issues of fact remain and

summary judgment as to causation is denied.

III. Permanency

Plaintiff’s final argument is that she is entitled to summary judgment on the

issue of permanency. (Dkt. 63 at 13.) In support of her contention, Plaintiff points to

the deposition of Dr. Bullock to show that he testified that Plaintiff’s shoulder tear is a

permanent injury, and that Plaintiff’s surgery resulted in a permanent change. (Id.)

As such, Plaintiff contends that “[s]ince both sides agree that the collision resulted in

a permanent injury within a reasonable degree of medical probability, Plaintiff is

entitled to Summary Judgment.” (Id.)

In response, Defendant contends that “[i]t is patently obvious that Plaintiff’s

treating doctors and Defendant’s experts disagree to degree and extent of Plaintiff’s

injuries.” (Dkt. 71 at 15.) In support of this contention, Defendant cites to a portion

of Dr. Bullock’s testimony in which he stated “I’m not going to say that the injury [to

the right shoulder] is permanent.” (Dkt. 66-1 at 55:5-17.)

“[D]eterminations about the permanency of an injury are generally made by

juries.” Wald v. Grainger, 64 So. 3d 1201, 1204 (Fla. 2011) (citation omitted). A

plaintiff establishes a prima facie case of permanency by presenting expert testimony.

See id. The burden then “shifts to the defendant to present countervailing expert

testimony” or “other evidence that creates a direct conflict with the plaintiff’s

evidence.” Id. (citation omitted). “If the defendant succeeds in this endeavor, a jury

question is presented[.]” Id. at 1205.

Here, the court finds that a genuine dispute of material fact exists as to whether

Plaintiff’s injuries are considered permanent. Specifically, the court notes that Dr.

Bullock’s testimony is internally inconsistent. For example, at one point Dr. Bullock

testified that “I’m not saying the injury is permanent.” (Dkt. 63-1 at 55:9-10.)

However, a few questions later he agreed that “the tear” is permanent. (Id. at 55:24-

25.) Therefore, due to the conflicting nature and disputed meaning of Dr. Bullock’s

responses, the court finds that it would be inappropriate to grant summary judgment

on the issue of permanency.

Accordingly, it is ORDERED:

1. Plaintiffs Motion to Exclude Expert Testimony of Dr. Jeremy

Cummings (Dkt. 57), Motion to Exclude Expert Testimony of Dr. James

M. Bullock (Dkt. 59), and Motion to Exclude Expert Testimony of Dr.

Neil Schechter (Dkt. 61) are DENIED without prejudice.

2. Plaintiff's Motion for Partial Summary Judgment on Causation, Liability

and Permanency (Dkt. 63) is DENIED.

ORDERED in Tampa, Florida, on June 9, 2022.

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UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Counsel of Record

-17-