“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
How later courts described this case
- “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN DAGOSTINO,
Plaintiff,
v. Case No: 2:22-cv-447-JES-KCD
FEDERAL EXPRESS CORPORATION,
AND ANNE MARIE CAVISTON,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendants’
Motion In Limine To Exclude Dr. Gregory L. Smith’s Testimony
Regarding Plaintiff’s Future Care (Doc. #38) filed on July 14,
2023, and defendants’ Motion in Limine To Exclude Plaintiff’s
Charged Medical Expenses (Doc. #40) filed on July 31, 2023.
Plaintiff did not file responses. For the reasons set forth below,
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, 105 S. Ct. 460, 83 L. Ed. 2d 443 (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 U.S. Dist. LEXIS 194217, 2021 WL
4527509, at *1, *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 U.S. Dist. LEXIS 209165, 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 U.S.
Dist. LEXIS 209165, 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). "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-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 U.S.
Dist. LEXIS 134900, 2009 WL 260989, at *1 (M.D. Fla. Feb. 4, 2009).
II.
This negligence action arose from an accident in which a motor
vehicle driven by defendant Anne Marie Caviston (Caviston), while
under the scope of her work for defendant Federal Express
Corporation (Federal Express)(collectively Defendants), collided
with plaintiff John Dagostino (Dagostino) while on his motorcycle.
(Doc. #4.)
Defendants Federal Express and Caviston seek to exclude Dr.
Gregory L. Smith’s testimony about Dagostino’s future care, as
well evidence of Dagostino’s charged medical expenses. The Court
will discuss each in turn below.
A. Dr. Gregory L. Smith’s Testimony About Dagostino’s Future
Care
Defendants seek to preclude testimony offered by Dr. Gregory
L. Smith (Dr. Smith) about Dagostino’s future care. (Doc. #38.)
Specifically, Defendants note that Dagostino has identified Dr.
Smith as an expert witness and intends to offer Dr. Smith’s
testimony as a life care planner. (Id., p. 1.) Citing to Florida
Evidence Code and Florida case law, Defendants argue that Dr.
Smith’s testimony, as an expert life care planner, “must be based
on facts in evidence and within his knowledge.” (Id., p. 3.)
According to Defendants, however, Dr. Smith did not physically
examine Dagostino nor is there evidence that Dagostino’s treating
physicians or other medical providers recommended the “sweeping
future treatments” that Dr. Smith opines is necessary for
Dagostino. (Id., pp. 5-6.) Defendants therefore assert that Dr.
Smith’s testimony about Dagostino’s future care should be
excluded. The Court does not agree.
As an initial matter, Defendants rely heavily on Florida
Evidence Code and case law, but this Court applies the Federal
Rules of Evidence. ML Healthcare Services, LLC v. Publix Super
Markets, Inc., 881 F.3d 1293, 1299 (11th Cir. 2018). Federal Rule
of Evidence 702 governs the admission of expert testimony and
provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably
to the facts of the case.
Id. This Court must ensure that the expert testimony is both
relevant and reliable. In determining the reliability of a
particular expert, the Court may apply the factors outlined in
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S. Ct.
2786, 2798 (1993): (1) whether the theory or technique at question
can and has been tested; (2) whether the technique or theory has
been subject to peer review or testing; (3) whether the known or
potential rate of error is acceptable; and (4) whether the
technique or theory is generally accepted by experts in the
relevant field of study. Allison v. McGhan Med. Corp., 184 F.3d
1300, 1309-10 (11th Cir. 1999) (applying Daubert factors).
Here, the record shows that Dr. Smith is board-certified in
occupational medicine, with over 30 years of clinical experience
in treating injuries and has written hundreds of life care plans
and medical cost analysis. (Doc. #38-1, p. 7.) The record further
reflects that Dr. Smith relied upon diagnoses from several of
Dagostino’s treating physicians when establishing Dagostino’s life
care plan. (Id., pp. 7-11.) Any failure by Dr. Smith to offer an
opinion outside of his knowledge or not based on “facts in
evidence” in making his assessments is something that should be
addressed by Defendants on cross-examination and evaluated by the
jury since it goes to the weight to be given to Dr. Smith’s
testimony and not towards its admissibility. See Daubert, 509 U.S.
at 596 (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.”). Defendants’ motion in limine to exclude
Dr. Smith’s testimony is therefore denied. See Incardone v. Royal
Carribean Cruises, Ltd., No. 16-20924-CIV-MARTINEZ/GOODMAN, 2018
WL 6520934, 2018 U.S. Dist. LEXIS 209109, at *41 (S.D. Fla. Dec.
11, 2018)(denying defendant’s motion in limine to exclude
testimony of a life care planner because it was not based on
sufficient facts or evidence; rather, defendant’s argument goes to
the weight to be accorded to the testimony).
B. Dagostino’s Charged Medical Expenses
Defendants also seek to prevent Dagostino from introducing
evidence of the “gross” amount of past medical expenses he incurred
as a result of Defendants’ alleged negligence. (Doc. #40.)
Defendants argue that Dagostino was a Medicare beneficiary (at all
times material), and that many of his health providers who rendered
treatment to Dagostino for injuries resulting from the accident,
have accepted his United Healthcare insurance, i.e., a Medicare
Advantage Plan (MAP). (Id., p. 1.) Defendants assert that Dagostino
is not and will never be financially responsible for
adjusted/written off medical bills that were reduced pursuant to
his MAP coverage. Defendants therefore argue that Plaintiff should
not be allowed to present evidence of related medical expenses in
excess of the MAP’s lien for those providers who accepted the
insurance MAP’s benefits. (Id., p. 2.)
The Court agrees that a plaintiff generally may not recover
amounts in excess of Medicare benefits received. Indeed, "[t]he
appropriate measure of compensatory damages for past medical
expenses when a plaintiff has received Medicare benefits does not
include the difference between the amount that the Medicare
providers agreed to accept and the total amount of the plaintiff's
medical bills." Dial v. Calusa Palms Master Ass'n, Inc., 308 So.
3d 690, 691 (Fla. 2d DCA 2020), approved, 337 So. 3d 1229 (Fla.
2022). However, there is no indication in the record that Dagostino
has in fact received any Medicare benefit with respect to any
related medical expenses, or that Dagostino has sought damages for
this purpose. To be sure, Defendants only argue that it is
“anticipated that the Plaintiff may argue that the actual value of
[his] expenses is the amount billed by his health care providers.”
(Id., p. 3)(emphasis added.)
The Court cannot tell with any degree of certainty that the
anticipated evidence Defendants seek to exclude will be
inadmissible (or admissible, for that matter). “If evidence [to be
excluded in limine] is not clearly inadmissible, evidentiary
rulings must be deferred until trial to allow questions of
foundation, relevancy, and prejudice to be resolved in context.”
Mowbray v. Carnival Corp., No. 08-20931-CIV, 2009 U.S. Dist. LEXIS
139933, at *5 (S.D. Fla. Apr. 13, 2009). “The court may deny a
motion in limine when it ‘lacks the necessary specificity with
respect to the evidence to be excluded.’” Id. (quoting Nat'l Union
Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Grp., 937 F.
Supp. 276, 287 (S.D.N.Y. 1996)). The Court cannot make a blanket
ruling based on anticipated evidence, and therefore Defendants
will have to make specific objections to evidence at trial.
Defendant's motion to exclude Dagostino’s charged medical expenses
is denied.
Accordingly, it is now
ORDERED :
1. Defendants’ Motion In Limine To Exclude Dr. Gregory L. Smith’s
Testimony Regarding Plaintiff’s Future Care (Doc. #38) is
DENIED.
2. Defendants’ Motion in Limine To Exclude Plaintiff’s Charged
Medical Expenses (Doc. #40) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 25th day of
August, 2023.
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ade E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of record