# Kimberly Regenesis, LLC v. Lee County, a Florida political subdivision

> District Court, M.D. Florida · June 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10642197

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 24, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642197

## How later opinions describe it (automated extraction)

- explaining when a plaintiff requests prospective relief, it must generally show it is “able and ready” to take the action assert to show a concrete injury
- explaining the identity of the cause of action is a question of “whether the facts or evidence necessary to maintain the suit are the same in both actions”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

KIMBERLY REGENESIS, LLC
and DAMASCUS TRADING
COMPANY, LLC,

Plaintiff,

v. Case No.: 2:19-cv-538-SPC-NPM

LEE COUNTY,

Defendant.
/
ORDER
Plaintiffs Kimberly Regenesis, LLC and Damascus Trading Company,
LLC sue Defendant Lee County for disability discrimination and failure to
provide a reasonable accommodation under Title II of the Americans with
Disabilities Act (“ADA”). This case is set for a bench trial. But before any
evidence is taken, the Court must address three motions:
• Plaintiffs’ Partial Motion for Summary Judgment (Doc. 157)

• Defendant’s Motion for Summary Judgment (Doc. 158)

• Defendant’s Motion in Limine to Exclude Expert Testimony of
Plaintiff’s Designated Expert Witnesses (Doc. 148)

These motions are all opposed and ripe for review.
BACKGROUND1
This case started a decade ago. In 2014, Plaintiffs asked Defendant to

rezone a parcel of land2 from Agricultural (“AG-2”) to Community Facilities
Planned Development (“CFPD”).3 They needed the rezoning to build a 72-bed
residential substance abuse treatment center and detoxification facility.4
Plaintiffs were initially successful. Defendant’s staff and hearing examiner

recommended rezoning because the facility was compatible with the
surrounding area’s mixed-use character. But the success was short-lived.
The Lee County Board of Commissioners unanimously voted against the
rezoning at a public hearing on August 5, 2015.5 It found Plaintiffs’ desired

facility “was potentially destructive to the character and integrity of the

1 Unless noted, the facts are agreed to or are undisputed in the record.

2 The parcel is located at 6401 Winkler Road, Fort Myers, Florida 33919.

3 When the rezoning application was made, Plaintiffs did not own the property—a trust did.
But the trust authorized Plaintiff Damacus to file and pursue the rezoning. (Doc. 20-1 at 7).
In fact, the Hearing Examiner Recommendation identifies the applicant as “Thomas M.
Mouracade for Damascus Trading Company, LLC.” (Doc. 157-1; see also Doc. 1 at 31; Doc.
167 at 3).

4 Plaintiff Kimberly Regenesis is the entity that will operate and treat individuals recovering
from substance abuse disorders. Plaintiff Damascus is the entity that has owned the land
since November 2015, and leases it to Kimberly Regenesis. (Doc. 159 at 55:4-11). The Court
refers to both as “Plaintiffs” unless otherwise noted.

5 The Board’s five commissioners were Brian Hamman, Larry Kiker, John Manning, Frank
Mann, and Cecil Pendergrass. Only Hamman and Pendergrass sit on today’s Board. Because
the parties do not distinguish between the Board and Lee County, neither does the Court.
residential neighborhood environment and therefore [did] not meet”
Defendant’s land use goals. (Doc. 157-5 at 4).

Plaintiffs dispute why their application failed. According to them, the
Board rejected the rezoning because of community opposition to the facility.
Local neighbors led an organized “not-in-my-back-yard” campaign against the
rezoning and publicly spoke against the facility before and during the hearing.

Because Plaintiffs believe the Board caved to pressure from neighbors’ bias
against recovering addicts, they have spent the past eight years litigating the
rezoning denial.
Plaintiffs started the fight in state court and litigated there for about

four years. They filed a Petition for Writ of Certiorari to quash the Board’s
decision and claimed the Board “departed from the essential requirements of
law, lacked competent substantial evidence to support its rejection of [their]
application, and failed to afford [them] due process.”6 (Doc. 20-1). The Petition

also referenced the ADA: “In addition, the County denied [Plaintiffs’]
application for a substance abuse detoxification facility because of community
opposition to people in recovery from drug and alcohol addiction (the ‘Recovery

6 About one year lapsed between the Board’s decision and Plaintiffs’ petition. During that
gap, Plaintiffs asked a special magistrate to examine whether the denial was unreasonable
or unfairly burdened the property. (Doc. 20-6). After an evidentiary hearing, the special
magistrate recommended affirming the Board’s decision. The Board then set a hearing to
consider the special magistrate’s recommendation, but Plaintiffs abandoned their request
and filed suit. (Doc. 20-7).
Community’), a legally protected class under the [ADA.]).” (Doc. 20-1 at 5
(footnote omitted)). The state court disagreed with Plaintiffs: “the Board was

aware that it could not simply deny the application simply because members
of the community opposed the proposed use, and took steps to instruct the
public not to waste time at the hearing with comments that amounted to mere
dislike at the thought of having the facility in the community.” (Doc. 20-2 at

17). Plaintiffs appealed again but lost there too. (Doc. 20-5).
As the state litigation was proceeding, Plaintiffs pursued another avenue
to get the zoning approval. They asked Defendant for a reasonable
accommodation under the ADA.7 Their request was twofold: (1) treat the

proposed use (i.e., the residential substance abuse treatment center and
detoxification facility) as a permitted use in the AG-2 zone, or (2) rezone the
property to CFPD and treat the facility as a permitted use. (Doc. 157-4).
Defendant8 denied both options as unreasonable and a key change to its zoning

scheme. (Doc. 157-5 at 1, 8). Plaintiffs took no further action with their
reasonable accommodation request until this case.

7 Plaintiffs addressed their letter requesting the reasonable accommodation to David
Loveland, Defendant’s then-Director of Community Development. (Doc. 157-4 at 1). The
letter was dated June 10, 2016.

8 Mark A. Trank, the assistant county attorney, signed the letter denying Plaintiffs’
reasonable accommodation request but did so on the Board’s letterhead. (Doc. 157-5 1, 8).
Having lost in state court, Plaintiffs came here. On August 1, 2019, they
filed this ADA suit seeking monetary damages, declaratory relief, and

injunction relief. Plaintiffs have alleged that Defendant (1) intentionally
discriminated against them and their proposed patients when it denied the
rezoning application, and (2) did not provide a reasonable accommodation.
The pleading and discovery stages were fraught with motions and an

interlocutory appeal. It has taken nearly four years to reach summary
judgment. And this stage has been no less contentious. Right before the
summary judgment deadline, Plaintiffs voluntarily dropped their monetary
damages claim and now seek only declaratory and injunctive relief. (Doc. 145).

Both parties have moved for summary judgment, and Defendant has moved to
exclude Plaintiffs’ two experts.
DISCUSSION
A. Motions for Summary Judgment

Defendant moves for summary judgment on jurisdictional grounds and
because the merits of the intentional discrimination and failure to
accommodate claims fail. Plaintiffs move for summary judgment only on the
failure to accommodate claim. The Court begins with the threshold question

of jurisdiction.
1. Standing
Since this case started, Defendant has argued Plaintiffs lack standing.

The Court rejected the standing arguments in Defendant’s motion to dismiss.
But Defendant reraises standing because Plaintiffs have dropped their
damages request and seek only equitable relief. (Doc. 158 at 11).
To determine whether Plaintiffs have standing, the Court must decide

whether they have (1) suffered an injury in fact that is both (2) fairly traceable
to Defendant’s conduct and (3) redressable by the requested injunction and
declaration. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). The
second and third prongs are easily satisfied. Plaintiffs’ alleged injury (the

inability to run the residential treatment facility) is traceable to Defendant’s
conduct (denying the rezoning application and reasonable accommodation
request) and would be redressed by an injunction (requiring Defendant to
approve the application or grant the requested reasonable accommodation).

(Doc. 1 at 24). So standing turns on the first prong—whether Plaintiffs have
shown that they have suffered the requisite injury in fact.
To qualify for injury-in-fact status, the plaintiff’s injury must be concrete
and particularized, and actual or imminent. “[B]ecause injunctions regulate

future conduct, a party has standing to seek injunctive relief only if the party
shows a real and immediate – as opposed to a merely conjectural or
hypothetical – threat of future injury.” Shotz v. Cates, 256 F.3d 1077, 1081
(11th Cir. 2001) (citation omitted and emphasis in original). Past harm will
not always be enough. Id. at 1082.

Although the Complaint centers on past events, the earlier harm doesn’t
necessarily stay in the past. Plaintiffs are injured each day they cannot build
and run the treatment facility for people in recovery. (Doc. 167 at 23).
Plaintiffs are also “able and ready” to run the facility, further showing a

concrete injury. See Aaron Priv. Clinic Mgmt. LLC v. Berry, 912 F.3d 1330,
1338 (11th Cir. 2019) (explaining when a plaintiff requests prospective relief,
it must generally show it is “able and ready” to take the action assert to show
a concrete injury). According to Plaintiffs, they are providing outpatient

treatment at a separate location, are licensed by Florida’s Department of
Children and Families, own the property where they seek to provide the
treatment facility, and have detailed plans on the design. See Aaron, 912 F.3d
at 1338 (“A plaintiff alleging that it would have opened a business absent the

challenged action must point to at least some facts suggesting a likelihood that
its business would have come about absent the challenged action.”). Plaintiffs
have shown they are ready to meet the local demand for the facility.9

9 Defendant notes that the Court’s prior dismissal order only addressed financial injury as a
basis for standing. (Doc. 158 at 11). Not quite. The Court left open whether Plaintiffs’ other
alleged injury—“the lost opportunity to provide a much-needed service”—would suffice. The
Court merely explained that the need for a treatment facility alone was not enough without
facts showing Plaintiffs’ readiness to supply that need. (Doc. 45 at 16).
Defendant does not end its standing challenge there. It also argues that
Plaintiffs lack associational or third-party standing because (1) there is no

evidence that they will have residents with an ADA disability, (2) Damascus
has never associated with any patient, and (3) Kimberly Regenesis had no
patients until after the rezoning and reasonable accommodation requests were
denied. (Doc. 158 at 16). The Court disagrees on all counts.

The ADA authorizes “persons aggrieved” by disability discrimination to
sue. 42 U.S.C. §12133. In Thompson v. N. Am. Stainless, LP, 562 U.S. 170
(2011), the Supreme Court broadly construed “persons aggrieved” as extending
standing to any person arguably within the zone of interests protected by the

statute. As the owner of the land and operator of a facility intended to serve
people with a disability, Plaintiffs fall within the zone of interests protected by
the ADA and thus have standing. What’s more, Defendant’s decisions
foreclosed Plaintiffs from opening the treatment facility to potential patients,

which is why no patient has been named here. See MX Grp., Inc. v. City of
Covington, 293 F.3d 326, 336 (6th Cir. 2002) (“Plaintiff has presented evidence
that it was altogether foreclosed from opening its clinic in the first place
because of the substance abuse services it planned to offer to its potential

clients and that Defendants discriminated against it on that basis.”). The
Court thus rejects Defendant’s third-party standing arguments.
One final point. That Plaintiffs bought the property after the Board
denied the rezoning application does not negate standing. See Vill. of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262 (1977) (non-owner of
property with contract contingent on securing rezoning had standing to sue).
In conclusion, the Court denies Defendant’s motion for summary
judgment on standing.

2. Mootness
When considering Defendant’s standing argument, the Court sua sponte
asked for supplemental briefing on the mootness doctrine because of two cases:
Mayor of Philadelphia v. Educ. Equal. League, 415 U.S. 605 (1974) and Stanley

v. Broward Cnty. Sheriff, 773 F. App’x 1065 (11th Cir. 2019). Mootness is
established only when (1) “it can be said with assurance that there is no
reasonable expectation that the alleged violation will recur” and (2) “interim
relief or events have completely and irrevocably eradicated the effects of the

alleged violation.” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979). Mayor
of Philadelphia and Stanley examined those elements in the context of
discrimination under 42 U.S.C. § 1983. Both cases involved individual
executives accused of discriminatory conduct personal to their

administrations. When the executives left their offices, the courts found the
threat of future discrimination stopped and mooted the discrimination claims.
A concern about this case has been that the majority of the Board’s
commissioners have changed in the ten years since Plaintiffs applied for the

rezoning and sought a reasonable accommodation. Having the benefit of the
parties’ briefs, however, the Court is satisfied the intervening change to the
Board’s composition does not moot this case. The Court is not convinced the
logic of Mayor of Philadelphia and Stanley extends to ADA claims, especially

the reasonable accommodation claim where a discriminatory motive is
irrelevant. See Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, at *4 (11th
Cir. Aug. 24, 2007) (explaining that an ADA claim for failure to accommodate
requires no discriminatory animus by the decisionmaker). Also, two of the

original commissioners are still on today’s Board and the local neighbors who
opposed the rezoning remain. So the Court cannot assuredly say that today’s
Board would decide Plaintiffs’ requests any differently. This case thus is not
moot.

3. Res Judicata and Collateral Estoppel
Next up, Defendant argues that res judicata and collateral estoppel
prevent Plaintiffs’ claims. “[T]he doctrine of res judicata bars the filing of
claims which were raised or could have been raised in an earlier proceeding.”

Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375 (11th Cir. 2011). Res
judicata applies “where there is: (1) identity of the thing sued for; (2) identity
of the cause of action; (3) identity of the persons and parties to the action; (4)
identity of the quality [or capacity] of the persons for or against whom the claim
is made; and (5) the original claim was disposed on the merits.” Lozman v. City

of Riviera Beach, Fla., 713 F.3d 1066, 1074 (11th Cir. 2013) (internal citations
omitted).
Likewise, “collateral estoppel applies when the identical issue has been
litigated between the same parties and the particular matter was fully

litigated and determined in a contest that results in a final decision of a court
of competent jurisdiction.” Paresky v. Miami-Dade Cty. Bd. of Cty. Comm’rs,
893 So. 2d 664, 665-66 (Fla. Dist. Ct. App. 2005).
Defendant pressed res judiciata and collateral estoppel arguments at the

motion to dismiss stage, but the Court denied them. (Doc. 45 at 17-18). Now,
because Plaintiffs have dropped their damages claim, Defendant argues that
Plaintiffs are seeking the same relief as they did in state court. The Court
again disagrees.

The facts and evidence to maintain this suit differ from the state court
proceedings. See Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. Dist. Ct.
App. 2005) (explaining the identity of the cause of action is a question of
“whether the facts or evidence necessary to maintain the suit are the same in

both actions”). The state court examined the record as it was before the Board
at the public hearing. And the alleged discrimination did not happen until the
Board denied the request. So Plaintiffs never had the chance to develop the
record under the mindset of ADA discrimination. Moreover, Plaintiffs did not
request the reasonable accommodation until after they filed the Petition for

Writ of Certiorari in the state court. So the failure to accommodate claim could
neither have been raised in the earlier proceedings nor been part of the
administrative record for the state court to review. The Court thus rejects
Defendant’s res judicata and collateral estoppel arguments.

4. Merits of the ADA Claims
Before delving into the merits of the ADA, the Court must address a
point on the pleadings. Defendant uses a footnote to criticize the Complaint
for not separating the claims for intentional discrimination and failure to

accommodate. That’s true. The Complaint alleges one count for “Claims under
Title II of the ADA.” (Doc. 1 at 23). There, Plaintiffs assert that “[t]he County’s
application for its zoning code to prevent use of the Kimberly ReGenesis Center
by Plaintiffs’ patients, and the denial of its request for reasonable

accommodation, constitute discrimination under Title II of the ADA.” (Id.).
But Defendant has never raised this issue. The parties conducted discovery
under the scope of claims for intentional discrimination and failure to
accommodate. So there is no claim confusion or prejudice to Defendant. As

the parties have done throughout this case, the Court construes the Complaint
to assert separate claims for intentional discrimination and failure to
accommodate and will address the summary judgment arguments as to both.
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A “genuine dispute” exists when a rational factfinder
could find for the non-moving party. And a fact is “material” if it might affect
the outcome. Judgment is appropriate “as a matter of law” when the non-

moving party has not made an adequate showing on an essential element of
which he must prove. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In deciding summary judgment, a court must view the evidence and
make all reasonable inferences for the non-moving party. But courts may not

make credibility determinations or weigh the evidence when reviewing the
record. See Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th
Cir. 2002). Against this backdrop, the Court turns to each claim.
a. Intentional Discrimination

Defendant makes two arguments on intentional discrimination: (1)
Plaintiffs have not proven that they are disabled (or associated with those who
are disabled) under the ADA, and (2) there is no evidence the Board held any
discriminatory motive. Neither argument prevails at this stage.

First, the ADA protects an organization from discrimination because of
its known association with disabled individuals. The Board knew Plaintiffs
intended to associate with disabled individuals. Indeed, the focus of the public
hearing was Plaintiffs’ desire to treat people who fall under the ADA (i.e.,
individuals recovering from substance abuse disorders). And it is immaterial

when Plaintiffs began this association. See Social Recovery, LLC v. City of
Costa Mesa, 56 F.4th 802, 814 (9th Cir. 2023) (“[T]he City’s argument, taken
to its logical conclusion, would preclude the owner or operator of any proposed
facility from surviving summary judgment. By definition, a proposed facility

has no residents. So no matter how egregious the zoning discrimination, under
the City’s standard requiring individualized proof of disability, no suit by the
owner or operator of a proposed home for people with disabilities would survive
summary judgment.”).

Second, Plaintiffs have presented enough circumstantial evidence of
intentional discrimination to survive summary judgment. Because the nature
of legislative action makes it difficult to determine the intent of the acting body,
the Eleventh Circuit has recognized several factors probative of whether a

decision-making body was motivated by discriminatory intent. See Thai
Meditation Ass’n of Ala., Inc. v. City of Mobile, Ala., No. 1:16-CV-395-TFM-MU,
2019 WL 2250275, at *12-13 (S.D. Ala. May 24, 2019), aff’d, 980 F.3d 821 (11th
Cir. 2020). Where there is no stark pattern of discrimination, courts should

look to these types of circumstantial evidence: (1) historical background of the
decision, particularly if it reveals a series of official actions taken for invidious
purposes, (2) the specific sequence of events leading to the challenged decision,
(3) departures from the normal procedural sequence and substantive
departures, (4) legislative or administrative history, especially where there are

contemporary statements by members of the decision-making body, minutes of
its meetings, or reports, (5) foreseeability of discriminatory impact, (6)
knowledge of discriminatory impact and (7) the availability of less
discriminatory alternatives. Id.

Defendant addresses none of these factors—and it’s not the Court’s job
to build the argument from the record. Plaintiffs also highlight statements
from the Commissioners that, when viewed in the light most favorable to them,
could raise a triable dispute about the Board’s intent. For example, before

Plaintiffs presented their evidence at the hearing, one commissioner said,
“[W]hen my time comes to speak I will put evidence into the record that will
hopefully gather votes to deny this application.” (Doc. 157-10 at 18:12-16). And
although another commissioner warned public members not to speak at the

hearing with simple comments about disliking the facility, that’s largely what
the Board heard. (Id.). Finally, it is reasonable the Board suspected a
discriminatory impact by denying the rezoning because they asked their
attorney what they needed to do to make their decision hold. Given the

standard at summary judgment, the Court finds enough factual dispute to
move the case forward.
b. Failure to Make Reasonable Accommodation
As mentioned, the parties cross-move for summary judgment on failure
to accommodate. To prevail on this claim, a plaintiff must prove that (1) he is

disabled, (2) he asked for a reasonable accommodation, (3) the requested
accommodation was necessary to allow him to equally use and enjoy a dwelling,
and (4) the defendant refused to make the requested accommodation. Schaw
v. Habitat for Human. of Citrus Cnty., Inc., 938 F.3d 1259, 1264 (11th Cir.

2019). The Court need look only at the second and third elements to find
genuine issues of material fact that prevent summary judgment for either
party.
The reasonableness inquiry considers “whether the requested

accommodation is both efficacious and proportional to the costs to implement
it.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1289
(11th Cir. 2014) (quotation omitted). Although a plaintiff must show that its
proposed accommodation is facially reasonable, the defendant must then show

why the requested accommodation would cause undue hardship. Schaw, 938
F.3d at 1265. Because the hearing examiner and other staff recommended
approving Plaintiffs’ desired rezoning, it was at least facially reasonable. For
Defendant’s part, it insists making the facility a permitted use or rezoning

would fundamentally alter its plan to protect residential areas from
commercial encroachment. Yet Plaintiffs have pointed to other commercial
uses in the surrounding area. Put simply, there is a genuine dispute about
reasonableness.

There is also a dispute over the necessity of Plaintiffs’ proposed
accommodation. To be necessary, the accommodation must address a need
caused by Plaintiffs’ disability. So, to be necessary, Plaintiffs must show that
living in the therapy center with the requested features (like a place of worship,

communal dining, and medical/health features) all address a need caused by
their residents’ addiction. See Schwarz v. City of Treasure Island, 544 F.3d
1201, 1225 (11th Cir. 2008). Plaintiffs intend to call an expert to testify about
the need for a treatment facility in the local community, but it is unclear

whether they have evidence about the need for the proposed facility’s
particular features. Because this matter is better resolved at the bench trial,
the Court denies summary judgment as to the failure to accommodate claim.
5. Conclusion

The Court finds that Plaintiffs have standing, the doctrines of mootness,
res judicata, and collateral estoppel do not bar this suit, and there are genuine
questions of material fact on the merits of the claims. Given this posture, the
Court also denies any lingering arguments Defendant makes about issuing a

mandatory injunction. That matter is better fleshed out at the bench trial. So,
in conclusion, the Court denies both motions for summary judgment.
B. Motion to Exclude Plaintiffs’ Experts
Defendant finally moves to exclude Plaintiffs’ two experts, Veronica

Martin and Dr. Mary Mouracade, for three reasons. (Doc. 148). First, it
maintains that neither Martin nor Dr. Mouracade have any specialized
knowledge to help the Court understand the evidence or determine a fact.
Second, Defendant claims that Martin will usurp the Court’s role by stating

legal conclusions on reasonable accommodations and the application of local
zoning regulations. Third, both expert opinions are based on flawed methods
and are not based on facts or data.
The Eleventh Circuit has established a three-part test to determine

whether expert testimony should be admitted under Federal Rule of Evidence
702 and Daubert10: (1) the expert must be qualified to testify about the matters
he intends to address; (2) the expert’s methods must be sufficiently reliable;
and (3) the testimony must help the trier of fact understand the evidence or

determine a fact in issue. Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92
(11th Cir. 2005). The party seeking to introduce the expert witness must
satisfy these criteria.
The Eleventh Circuit has recognized that the barriers to opinion

testimony are more relaxed in a bench trial where the judge is serving as

10 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993).
factfinder and the court is not concerned about “dumping a barrage of
questionable scientific evidence on a jury.” United States v. Brown, 415 F.3d

1257, 1268 (11th Cir. 2005) (“There is less need for the gatekeeper to keep the
gate when the gatekeeper is keeping the gate only for himself.”). Indeed, “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.” Gibbs v.

Gibbs, 210 F.3d 491, 500 (5th Cir. 2000). At bottom, the Court, sitting as trier
of fact, is in the best position to distinguish between persuasive and insufficient
expert evidence at trial.
So Defendant’s concerns about Plaintiffs’ experts are more appropriately

discussed at trial when all the facts can be considered. See 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 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”). If any
shortcomings about an expert’s qualifications arise, or part of any expert’s
testimony seems unhelpful or unreliable, Defendant may present its
arguments through “[vligorous cross examination [and the] presentation of
contrary evidence.” Daubert, 509 U.S. at 596. The Court thus denies without
prejudice Defendant’s motion to exclude Plaintiffs’ experts.
Accordingly, it is
ORDERED:
1. Defendant’s Motion in Limine to Exclude Expert Testimony of
Plaintiff's Designated Expert Witnesses (Doc. 148) is DENIED.
2. Plaintiffs’ Partial Motion for Summary Judgment (Doc. 157) is
DENIED.
3. Defendant’s Motion for Summary Judgment (Doc. 158) is
DENIED.
DONE and ORDERED in Fort Myers, Florida on June 24, 2024.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642197. Public record. Not legal advice.