Johnson Bros. Corp. v. WSP USA, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JOHNSON BROS. CORP.,

Plaintiff,

Vv. Case No. 6:21-cv-200-JA-EJK

WSP USA, INC. and CDM

SMITH, INC.,

Defendants.

ORDER

This case is before the Court on Defendants’ Daubert! motions (Docs. 137

& 138), Plaintiffs responses (Docs. 150 & 151), and Defendants’ replies (Docs.

166 & 168). Having reviewed the parties’ submissions, the Court will grant the

motions in part and deny them in part.

I. BACKGROUND

This dispute stems from problems encountered during the design and

construction of the Veterans Memorial Bridge in Volusia County, Florida. (Doc.

140 { 1; Doc. 143 § 1; Doc. 153 at 2). In February 2013, the County contracted

with Defendant WSP USA, Inc. for design and engineering services on the

bridge project. (Doc. 76-1 at 39; Doc. 140 § 3; Doc. 143 J 3; Doc. 153 at 2). Three

1 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1998).

years later, in February 2016, the County entered into a contract with Plaintiff

whereby Plaintiff became the general contractor for construction of the bridge.

(Doc. 76-3 at 64; Doc. 140 § 4; Doc. 143 § 2; Doc. 153 at 5). Shortly thereafter,

in March 2016, the County contracted with Defendant CDM Smith, Inc. for

Construction, Engineering, and Inspection (CEI) services on the project. (Doc.

76-2 at 34; Doc. 140 { 5; Doc. 143 J 7; Doc. 153 at 3).

Whenever Plaintiff encountered a problem during the project that affected

Plaintiffs work to the point that Plaintiff wanted reimbursement from the

County, Plaintiff submitted an official Notice of Intent to File Claim (NOI) to

the County regarding the problem. (See, e.g., Doc. 76-4 at 2). Over the course of

the project, Plaintiff submitted multiple NOIs. (Doc. 76 § 23; Doc. 140 § 7; Doc.

143 9 18-15; see Doc. 153 at 9).

Initially in this lawsuit, Plaintiff sued only the County, (see Docs. 1, 9, 13,

36, & 70), alleging that the County “rejected or failed to respond to” claims

raised in various NOIs, (Doc. 13 { 10—11; Doc. 36 4 10-11; Doc. 70 Ff □□□□□□□

The County filed a third-party complaint against WSP for indemnification,

breach of contract, and negligence. (See Doc. 45). Eventually, Plaintiff settled

with the County, and under the settlement agreement, the County assigned to

Plaintiff rights to sue WSP and CDM for damages related to the project. (Doc.

76-49 §§ 2.1, 8.1). Accordingly, Plaintiff now sues Defendants both in its own

right and as the County’s assignee. (See, e.g., Doc. 76 FJ 32, 36, 45).

Plaintiff asserts claims in connection with sixteen NOIs: twelve against

both Defendants (NOIs 3, 13, 18, 20, 21, 26, 35, 38, 41, 44, 45, and 46), two

against WSP only (NOIs 28 and 33), and two against CDM only (NOIs 8 and

47). (See id. | 28, 32-680). For each NOI, Plaintiff brings breach-of-contract

and contractual-indemnification claims as the County’s assignee and a

negligence claim in its own right under Florida common law. (See id. { 26; see,

e.g., id. [§ 32-55 (the three counts against WSP related to NOI 3)). As the

County’s assignee, Plaintiff also asserts general-indemnification claims against

both Defendants. Ud. 681—706).

Of the sixteen NOIs, eleven are potentially relevant in resolving the

Daubert motions. (See Doc. 138 at 20-21). NOI 3 involves jetting, (Doc. 76

{| 23a)—a method of installing piles (support structures for bridges) that uses

pressurized jets of water to loosen soil, (Doc. 137-4 at 4-5). NOI 8 involves

broken piling. (Doc. 76 { 23b). NOIs 13 and 18 involve repair of the cracking in

Piers 7 and 8, respectively. Ud. {| 23c—d). NOI 20 involves delays related to the

erection plan. (Id. 4 23e). NOI 26 involves pier-cap constructability. (Id. 23g).

NOI 28 involves Hanger-Rod constructability. dd. 4 23h). NOI 33 involves the

design of the Span 5 Bar Splice. Ud. { 231). NOI 35 involves the design of the

fishing piers. (Ud. {| 23j). NOI 38 involves cracking in the latex-modified overlay.

(Ud. {| 23k). And NOI 44 involves extra work and delay due to cracking in Piers

11 and 4. Ud. § 23m).

To support its. claims, Plaintiff retained five experts: Mr. Edwin

Mackiewicz, Mr. William Nickas, Mr. John Miseroy, Dr. Randall Poston, and

Mr. Peter Wade. (See Doc. 150 at 2-3, 12—13). Defendants now move to exclude

some of the opinions of these five experts. (See Docs. 137 & 138).

II. LEGAL STANDARD

Federal Rule of Evidence 702 governs the admissibility of expert opinions

and “compels” the Court “to perform [a] critical ‘gatekeeping’ function.” United

States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (quoting

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 n.7, 597 (1993)); see

Fed. R. Evid. 702 (“A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or

otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to determine a fact in

issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is

the product of reliable principles and methods; and (d) the expert has reliably

applied the principles and methods to the facts of the case.”). To decide the

admissibility of an expert’s opinions, the Court “engage[s] in a rigorous three-

part inquiry” and considers (1) whether the expert is qualified to provide the

opinions, (2) whether “the methodology by which the expert reache[d the

opinions] is sufficiently reliable,” and (3) whether in providing the opinions, the

expert will help the factfinder “understand the evidence or... determine a fact

in issue.” Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros

Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). “The party offering the expert

has the burden of’ establishing the expert’s qualifications, the methodology’s

reliability, and the opinions’ helpfulness to the factfinder “by a preponderance

of the evidence.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005).

Ill. DISCUSSION

The Court discusses Mr. Mackiewicz, Mr. Nickas, Mr. Miseroy, Dr.

Poston, and Mr. Wade in turn.

A. Mr. Mackiewicz

Plaintiff retained Mr. Mackiewicz to opine on whether CDM breached the

standard of care for CEI services. (Doc. 137 at 3; Doc. 150 at 5). Mr. Mackiewicz

wrote in his expert report, (Doc. 137-2 at 8-9), and testified in his deposition,

(Doc. 137-1 at 12), that CDM not only failed to meet the standard of care but

also acted in bad faith. When asked during his deposition whether he had any

“special training or knowledge” on which to base his bad-faith determination,

Mr. Mackiewicz stated that he did not know if he did but that “through [his]

experience,” CDM’s conduct did not constitute “good[-]faith dealing.” (/d.). Mr.

Mackiewicz was also asked about the basis for his opinions on CDM’s

responsibilities regarding the project, and he responded that CDM’s

responsibilities went beyond the express obligations in its contract with the

County because the responsibilities were owed to the project and were for the

benefit of stakeholders besides the County. (/d. at 6—8). He explained that his

statements about CDM’s responsibilities were “not a legal opinion” but were

“based on [his] experience . . . in the CEI world.” (Ud. at 7).

CDM argues that Mr. Mackiewicz’s opinions on its subjective bad faith

should be excluded because he is not qualified to offer psychological opinions, he

does not have special training in bad faith, and anyway, “the subject of a

person’s state of mind is off-limits to expert testimony.” (Doc. 137 at 4-5). CDM

further maintains that his statements on the scope of its responsibilities should

be excluded because he is not qualified to opine on legal issues and because the

Court is better suited than he is to interpret CDM’s contract with the County

and to instruct the factfinder on CDM’s legal duties. Ud. at 5—7; Doc. 166 at 8-

9). As to bad faith, Plaintiff responds: “Mr. Mackiewicz is not offering any

opinions on CDM’s state of mind[,] its corporate ethics[,] and whether CDM met

certain legal thresholds” but is instead “opining on the customs and practices in

the CEI industry and how CDM failed to comply with those customs and

practices giving rise to bad faith.” (Doc. 150 at 6). As to the scope of CDM’s

responsibilities, Plaintiff contends that Mr. Mackiewicz will refer to CDM’s

contract and scope of work “for contextual purposes only” and will testify that

“in furnishing [CEI] services, CDM should have acted in a way to benefit the

[p]roject as a whole—as is the custom and practice—and not solely and

exclusively for the benefit” of the County. (/d. at 7-8).

State-of-mind and legal opinions are generally improper. See Romano v.

John Hancock Life Ins. Co. (USA), No. 19-21147-CIV, 2022 U.S. Dist. LEXIS

83703, at *13-14 (S.D. Fla. May 9, 2022). Accordingly, although Mr. Mackiewicz

will be permitted to opine on CEI customs and practices, he will not be permitted

to opine on CDM’s bad faith or legal duties. See id.

B. Mr. Nickas

Plaintiff retained Mr. Nickas primarily to opine on pile-installation

methods, particularly the jetting method. (See Doc. 137-3 at 3, 7; Doc. 137-4 at

1, 4-5). Mr. Nickas testified in his deposition that he considers himself an expert □

in bridge engineering and construction, not the day-to-day work of construction

inspection. (Doc. 137-3 at 31-82). In his report, Mr. Nickas concluded that WSP

deviated from the standard of care for bridge engineering because WSP created

confusion about whether jetting would be allowed during the project, (Doc. 137-

4 at 27), and he faulted CDM for failing to suggest that WSP revise the project

plans for clarity on this issue, (id. at 28). Focusing on a plan note stating, “When

a required jetting or preformed elevation is not shown on the table, the

contractor shall coordinate with the engineer of record to obtain written

approval prior to jetting or preforming pile locations,” Mr. Nickas took issue

with the vagueness of the verb “coordinate” and opined that WSP should have

specified the requirements imposed by the note and should have been explicit

about prohibiting jetting with language like “do not jet” if jetting was to be

Ey

prohibited. Ud. at 11, 27). Mr. Nickas further opined that CDM was “supposed

to be the go[-]between and honest broker with all parties involved with the

project,” (id. at 33-34); was supposed to “remain impartial and nonJ[-]bias[ed]”

regarding “the totality of the [plans, specifications, and estimates] package,” (id.

at 28); “should have been forthright” and alerted the County to problems arising

from discrepancies in the plans and specifications, (id. at 42-43); and “could

have encouraged” the County—‘[f]rom the onset of the project”—“to engage an

independent panel” as a Dispute Review Board (DRB), (id. at 49). Mr. Nickas

stated that a DRB would have advised the County of inconsistencies that CDM

failed to bring to the County’s attention. (/d. at 43).

CDM makes four arguments as to Mr. Nickas: (1) he is not qualified to

opine on the CEI standard of care because he has minimal experience specific

to CEI services, (2) his statements about CDM’s being an “honest broker” and

“impartial and non[-]bias[ed]” are pure opinion, (3) his statement that a DRB

would have advised the County of inconsistencies is pure speculation, and (4)

his standard-of-care testimony is cumulative given Mr. Mackiewicz’s testimony.

(Doc. 137 at 7-10; Doc. 166 at 9-10). And WSP maintains that Mr. Nickas’s

jetting opinions related to NOI 3 should be excluded as unreliable and unhelpful

because Mr. Nickas focused too closely on the “coordinate” note and did not

consider WSP’s overall performance on the project and because his

“conclusion . . . converts the standard of care [required of a design professional

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like WSP] to a near strict liability standard.” (Doc. 138 at 14-18). In its

responses, Plaintiff addresses all these arguments except CDM’s speculation

argument. (See Doc. 150 at 9-15; Doc. 151 at 15-17).

As to the issue of qualifications, Mr. Nickas is qualified to testify to the

CEI standard of care. “A witness is qualified as an expert if he is the type of

person who should be testifying on the matter at hand.” Moore v. Intuitive

Surgical, Inc., 995 F.3d 839, 852 (11th Cir. 2021) (emphasis omitted). A witness

may be qualified “by knowledge, skill, experience, training, or education.” Fed.

R. Evid. 702. Mr. Nickas holds a Bachelor of Science degree in Civil Engineering

from The Citadel Military College of South Carolina and has worked for four

decades in positions related to “the design and construction of transportation

facilities,” including complex bridges in Florida. (Doc. 137-4 at 53). Although he

has minimal experience specific to CEI services, the CEI subfield sufficiently

overlaps with the areas of civil engineering in which he has education and

experience that he is qualified to opine on CEI services. See Hendrix v. Evenflo

Co., 255 F.R.D. 568, 578 (N.D. Fla. 2009) (“[S]o long as [an] expert is at least

minimally qualified, gaps in his qualifications generally will not preclude

admission of his testimony, as [they] relate[] more to witness credibility and

thus the weight of the expert’s testimony[] than to its admissibility.”).

As to Mr. Nickas’s “honest broker” and “impartial and nonJ[-]bias[ed]”

statements, Mr. Nickas will be permitted to opine on CEI customs and practices,

OQ

including the purported expectation that a CEI act as an impartial honest

broker on a project. But Mr. Nickas will not be permitted to opine that CDM

failed to act in accordance with this expectation. In other words, Mr. Nickas may

not say that CDM was not an impartial honest broker for the bridge project. See

Romano, 2022 U.S. Dist. LEXIS 83703, at *13-14.

As to the statement that a DRB would have advised the County of

inconsistencies that CDM failed to bring to the County’s attention, Mr. Nickas

admitted during his deposition that the statement was “just speculation.” (Doc.

137-3 at 38). And Plaintiff does not address the statement or CDM’s speculation

argument in its response to CDM. (See Doc. 150 at 9-15). As the party offering

Mr. Nickas as an expert, Plaintiff bears the burden of establishing that his

statement has an appropriate basis. See Rink, 400 F.3d at 1292. Because the

statement appears to be based on speculation, it will be excluded. See Kilpatrick

v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) “Daubert requires that trial

courts act as ‘gatekeepers’ to ensure that speculative, unreliable expert

testimony does not reach the jury.”).

As to the issue of cumulativeness, Mr. Nickas’s anticipated testimony on

the CEI standard of care is not necessarily cumulative to Mr. Mackiewicz’s for

two reasons. First, the two witnesses have “different professional perspectives.”

See Royal Bahamian Ass’n v. QBE Ins. Corp., No. 10-21511-CIV-MORE, 2010

US. Dist. LEXIS 115308, at *5 (S.D. Fla. Oct. 21, 2010) (“Testimony on the same

1n

topic by different experts . . . is not needlessly cumulative where the experts will

testify from different professional perspectives.”). Mr. Nickas has a general-

engineering perspective, (see Doc. 137-4 at 53), and Mr. Mackiewicz has a

perspective specific to CEI, (see Doc. 137-1 at 5). (See also Doc. 150 at 13). And

second, Mr. Nickas will offer jetting-centric testimony while Mr. Mackiewicz will

discuss not only jetting but also a range of other issues. Accordingly, Mr. Nickas

will be allowed to testify to the CEI standard of care.?

As to the reliability and helpfulness of Mr. Nickas’s opinions, the Court

agrees with Plaintiff that his method of “investigating a single note on a drawing

and then opining about the standard of care with respect to the formulation of

that note” is not inherently unreliable, (Doc. 151 at 15), given his overview of

WSP’s work, (see Doc. 137-3 at 29 (explaining that WSP “went above and

beyond” in various other ways during the project)), and that his standard-of-

care testimony is more likely to assist than confuse the factfinder, (Doc. 151 at

17), who will receive instructions on legal standards from the Court. In general,

WSP’s arguments about Mr. Nickas are more appropriate for a trial than for a

motion to exclude. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof

2 The Court disagrees with CDM’s assessment that Mr. Nickas is “(mis)stepping

into the proverbial shoes of a CEI to form” his opinions. (Doc. 166 at 11). To borrow |

CDM’s phrase, Mr. Nickas is wearing general-engineering shoes, not CEI shoes.

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are the traditional and appropriate means of attacking shaky but admissible

evidence.”).

C. Mr. Miseroy

Plaintiff retained Mr. Miseroy to provide opinions related to NOIs 3, 20,

26, and 35, including standard-of-care opinions as to CDM and WSP. (See Doc.

137-7 at 2; Doc. 150 at 16; Doc. 151 at 14). In his report, Mr. Miseroy commented

that when Plaintiff asked for help solving a problem with pier-cap

constructability, CDM did not provide assistance, (Doc. 137-7 at 35), and when

Plaintiff identified a problem with the design of the fishing piers, CDM required

Plaintiff “to perform significant extra work to produce” the “design illustrated

in the plans,” @d. at 36 (emphasis omitted)). Mr. Miseroy stated that Virgil

Rook, CDM’s Senior Project Engineer on the project, “did not grasp the extra

work” that Plaintiff “was required to perform.” (Id. at 54 (emphasis omitted)).

In his deposition, Mr. Miseroy testified that he did not examine the scope of

work required of CDM by its contract with the County. (Doc. 137-5 at 32). He

based his CEI opinions, he said, on “what other CEI firms have done on projects”

in which he participated “over the years” and on “how issues were escalated or

not” during the Veterans Memorial Bridge project. Uid.). And he testified that

like a DRB, a CEI firm should provide advice to “help [a] project avoid disputes

and delays.” Ud. at 33).

Both Defendants challenge Mr. Miseroy’s qualifications to offer standard-

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of-care testimony because he has never worked in CEI and is not a professional

engineer in Florida. (Doc. 137 at 10—11; Doc. 188 at 13-14; Doc. 166 at 10).

Additionally, CDM contends that his opinions should be excluded because he

does not base them “on solid ground” and because they are duplicative of Mr.

Mackiewicz’s standard-of-care opinions. (Doc. 1387 at 11—12; accord Doc. 166 at

10-11). Plaintiff responds that “Mr. Miseroy is a highly qualified marine

contractor with extensive experience constructing bridges and piers,” (Doc. 151

at 14), and that his opinions are “grounded on” industry customs and practices,

(Doc. 150 at 17). Plaintiff also asserts that Mr. Miseroy’s opinions are not

needlessly duplicative of Mr. Mackiewicz’s. (Id.).

The Court agrees with Plaintiff that Mr. Miseroy’s professional experience

qualifies him to opine on the relevant standards of care, informs his knowledge

of the applicable customs and practices, and provides a sufficient basis for his

opinions. See Fed. R. Evid. 702; cf. Maiz v. Virani, 253 F.3d 641, 668-69 (llth

Cir. 2001) (rejecting the argument that an expert’s testimony about “the

passport-stamping practices of Mexican immigration authorities” was

unreliable when the testimony was “based largely on [the expert’s] personal

experience”). However, the Court agrees with CDM that Mr. Miseroy’s opinions

as to CDM are duplicative of Mr. Mackiewicz’s. Accordingly, Mr. Miseroy will be

permitted to opine as to WSP but not as to CDM.

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D. Dr. Poston

Plaintiff retained engineering expert Dr. Poston to opine on various NOIs.

(See, e.g., Doc. 159). Although CDM briefly argues that Dr. Poston’s opinion on

the CEI standard of care should be excluded as needlessly duplicative of Mr.

Mackiewicz’s opinions, (Doc. 137 at 12-13), most of the arguments to exclude

Dr. Poston’s opinions come from WSP, (Doc. 138 at 4-13). As to NOIs 26, 28, 33,

and 35, WSP seeks to exclude Dr. Poston’s testimony as unhelpful because he

does not offer standard-of-care opinions about WSP’s conduct. (Doc. 138 at 4—

10). And as to NOIs 13, 18, and 44, WSP asserts that the only standard-of-care

opinion offered by Dr. Poston relies on the unsupported assumption that “WSP

had a contractual obligation to perform construction phase services” related to

the pier cracking described in the NOIs. (/d. at 10-13). In response to WSP’s

arguments, Plaintiff submitted an affidavit from Dr. Poston in which he opines

that WSP’s conduct fell below the applicable standard of care as to all these

NOIs except for NOI 28. (Doc. 159 at 2-5). Plaintiff represents that with respect

to that NOI, Plaintiff “does not attribute any damages or delay” to WSP. (Doc.

151 at 6). But in general, says Plaintiff, Dr. Poston’s opinions are helpful for the

breach-of-contract and negligence claims and are reliable. (Doc. 151 at 4—14).

Regarding CDM’s argument, Dr. Poston’s opinions will not be excluded as

duplicative of Mr. Mackiewicz’s because the two experts offer “different

professional perspectives.” See Royal Bahamian, 2010 U.S. Dist. LEXIS 115308,

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at *5. Regarding WSP’s arguments, Dr. Poston’s testimony related to NOI 28—

and, indeed, all opinions about NOI 28—will be excluded as unhelpful given

Plaintiffs representation that as to that NOI, Plaintiff “does not attribute any

damages or delay” to WSP, (Doc. 151 at 6)—the only defendant for the NOI 28

claims, (see Doc. 76 at 91-97). See Resnick v. AvMed, Inc., 693 F.3d 13817, 1325

(11th Cir. 2012) (isting damages as an element of breach-of-contract and

negligence claims under Florida law); see also ACMG of La., Inc. v. Towers

Perrin, Inc., 390 F. App’x 936, 938 (11th Cir. 2010) (“A claim for indemnity arises

only when a party pays damages on behalf of another.” (emphasis added)). That

said, Dr. Poston’s testimony is otherwise helpful in light of his standard-of-care

opinions about WSP’s conduct. And his testimony about NOIs 138, 18, and 44 is

sufficiently reliable because the opinions on these NOIs are not based on an

unsupported assumption about WSP’s contractual obligations. Instead, they are

based on WSP’s overreactions in addressing ordinary shrinkage cracks (“a

natural phenomenon in concrete construction”) by “callfing] for a detailed

investigation” and “a repair and remediation protocol” and “suspend[ing] work

on the project” pending the investigation. (Doc. 159 at 5).

Ek. Mr. Wade

Plaintiff retained Mr. Wade to calculate its damages, including its lost

opportunity costs. (See Doc. 160-1 at 7). During his deposition, Mr. Wade

testified that he used the Consolidated Financial Statements of Plaintiffs

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parent company, Southland Holdings Companies—rather than Plaintiffs

Consolidated Financial Statements—to calculate Plaintiffs lost opportunity

costs. (Doc. 138-4 at 4). Defendants move to exclude Mr. Wade’s opinions on

Plaintiffs lost opportunity costs, arguing that he based his opinions on financial

data unrelated to Plaintiff. (Doc. 137 at 13; Doc. 138 at 18—20). Plaintiff

responds that Mr. Wade misspoke during his deposition and that he in fact used

Plaintiffs, not its parent company’s, financial data as the basis for his opinions.

(Doc. 150 at 18-20; Doc. 151 at 17~18). Mr. Wade admits his mistake in an

affidavit, (Doc. 160 § 9), and has submitted an errata sheet correcting his

testimony, (Doc. 169-4 at 2). The affidavit and errata sheet are consistent with

his reports, which state that he used Plaintiffs data to calculate its lost

opportunity costs. (See Doc. 170-9 at 48; Doc. 170-10 at 18). Although WSP

moved to strike Mr. Wade’s affidavit and errata sheet as contradicted by his

prior deposition testimony, (Doc. 169 at 19-24), the Court denied the motion,

(Doc. 203 at 2). Because Defendants’ arguments about Mr. Wade’s opinions are

predicated on incorrect information about his process for calculating Plaintiffs

lost opportunity costs, they are unpersuasive. Accordingly, Mr. Wade’s opinions

will not be excluded.

IV. CONCLUSION

For the reasons explained above, it is ORDERED that Defendants’

Daubert motions (Docs. 137 & 138) are GRANTED in part and DENIED in

1a

part. The Court excludes Mr. Mackiewicz’s opinions about CDM’s bad faith and

legal duties, Mr. Nickas’s opinion that CDM did not act as an impartial honest

broker for the bridge project, Mr. Nickas’s opinion that a DRB would have

advised the County of inconsistencies that CDM failed to bring to the County’s

attention, Mr. Miseroy’s opinions about CDM, and all opinions about NOI 28.

The motions to exclude are otherwise denied.

The Court expects that no more than two experts will give opinion

testimony as to each standard of care per NOI. The parties shall govern

themselves accordingly in preparation for trial.

DONE and ORDERED in Orlando, Florida, on June **_, 2024.

i □

JOHN ANTOON II

United States District Judge

Copies furnished to:

Counsel of Record

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