Murphy v. Airway Air Charter, Inc

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-23654-BLOOM/Torres

RICHARD C. MURPHY, III; and

KATHLEEN T. MURPHY

Plaintiffs,

vs.

AIRWAY AIR CHARTER INC.

d/b/a Noble Air Charter; VENTURE

AIR SOLUTIONS, INC.;

ALEX GUTIERREZ, individually; and.

ATLANTIC AVIATION – OPA LOCKA

LLC d/b/a Atlantic Aviation,

Defendants.

_____________________________________/

ORDER ON PARTIES’ MOTIONS IN LIMINE

THIS CAUSE is before the Court upon the parties’ Joint Summary of the Parties’ Motions

in Limine, ECF No. [142]. The Court has reviewed the Motions, the supporting and opposing

submissions, the record in the case, and is otherwise fully advised. For the reasons that follow, the

Parties’ Motions in Limine are granted in part and denied in part.

I. BACKGROUND

Plaintiffs Richard and Kathleen Murphy originally filed this action against Defendants

AirWay Air Charters Inc. d/b/a Noble Air Charter (“Noble”), Alex Gutierrez, and Venture Air

Solutions, Inc. (“Venture”) on April 25, 2022, in the Circuit Court for the Eleventh Judicial Circuit

for Miami-Dade County, Florida, styled Murphy v. Airway Air Charter, Inc. et al, Case No.: 2022-

007616-CA-01. Defendant Atlantic Aviation-Opa Locka (“Atlantic”) thereafter removed this case

on the basis of federal question and admiralty jurisdiction pursuant to 28 U.S.C. §§ 1331, 1333,

1441, and 1446. See ECF No. [1]. Once removed, Plaintiffs filed their Fourth Amended Complaint

on December 22, 2023, ECF No. [37]. The Fourth Amended Complaint alleges Noble (Count I)

and Gutierrez (Count II) are liable for Richard Murphy’s injuries under Article 17 of the Warsaw

Convention. Id. ¶¶ 22-35. Count III alleges a vicarious liability claim against Venture in

authorizing Gutierrez to operate the subject aircraft.1 Count IV alleges a negligence claim against

Atlantic for failing to properly fuel the subject aircraft. Id. ¶¶ 36-42. The parties are scheduled to

proceed to trial on October 7, 2024. In anticipation of the upcoming trial, the parties have submitted

their Joint Summary of Motions in Limine. ECF No. [142].

II. LEGAL STANDARD

A. Motions in Limine

“In fairness to the parties and their ability to put on their case, a court should exclude

evidence in limine only when it is clearly inadmissible on all potential grounds.” United States v.

Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. June 10, 2010). “The movant has the burden of

demonstrating that the evidence is inadmissible on any relevant ground.” Id. “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 WL

260989, at *1 (M.D. Fla. Feb. 4, 2009). Likewise, “[i]n light of the preliminary or preemptive

nature of motions in limine, ‘any party may seek reconsideration at trial in light of the evidence

actually presented and shall make contemporaneous objections when evidence is elicited.’” Holder

1 On June 25, 2024, the Court entered summary judgment on Count III in favor of Defendant Venture Air

Solutions, Inc. See ECF No. [67].

2

v. Anderson, No. 3:16-CV-1307-J-39JBT, 2018 WL 4956757, at *1 (M.D. Fla. May 30, 2018)

(quoting Miller ex rel. Miller v. Ford Motor Co., No. 2:01CV545FTM-29DNF, 2004 WL

4054843, at *1 (M.D. Fla. July 22, 2004)); see In re Seroquel., 2009 WL 260989, at *1 (“The court

will entertain objections on individual proffers as they arise at trial, even though the proffer falls

within the scope of a denied motion in limine.”) (citing United States v. Connelly, 874 F.2d 412,

416 (7th Cir. 1989)).

Evidence is admissible if relevant, and evidence is relevant if it has any tendency to prove

or disprove a fact of consequence. Fed. R. Evid. 401, 402; Advisory Comm. Notes, Fed. R. Evid.

401 (“The standard of probability under the rule is ‘more probable than it would be without the

evidence.’”); United States v. Patrick, 513 F. App'x 882, 886 (11th Cir. 2013). A district court may

exclude relevant evidence under Rule 403 if “its probative value is substantially outweighed by a

danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting of

time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is an

extraordinary remedy which the district court should invoke sparingly, and the balance should be

struck in favor of admissibility.” Patrick, 513 F. App'x at 886 (citing United States v. Lopez, 649

F.3d 1222, 1247 (11th Cir. 2011)); see United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th

Cir. 2010). Rule 403’s “major function ... is limited to excluding matter of scant or cumulative

probative force, dragged in by the heels for the sake of its prejudicial effect[.]” United States v.

Grant, 256 F.3d 1146, 1155 (11th Cir. 2001) (quoting United States v. Cross, 928 F.2d 1030, 1048

(11th Cir.1991)).

III. DISCUSSION

A. Defendant Noble’s Motions in Limine

Defendant Noble moves to preclude the following four topics as evidence at trial:

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i. Any Evidence and Testimony of Fuel Being Placed in the Auxiliary Tanks

Noble first requests that the Court exclude all evidence and testimony regarding the fuel

being placed in the auxiliary tanks. ECF No. [142] at 4. Specifically, Noble asserts that Plaintiffs’

expert, Mark Pottinger, and Atlantic’s expert, Doug Stimpson, “are expected to provide pure

opinion testimony that fuel was placed in the Auxiliary tanks and not the Main Tanks” without

any evidence to support that contention. Id. Noble argues that by adopting Daubert, the Florida

legislature has made clear that pure opinion testimony is no longer admissible.

Plaintiffs oppose Noble’s motion by incorporating all of their arguments from Plaintiffs’

response in opposition to Atlantic’s motion for summary judgment.

Defendant Atlantic also opposes Noble’s motion and maintains that, despite Noble’s

argument to the contrary, Stimpson’s opinions regarding the fuel being placed in the auxiliary

tanks “are based on record evidence, including surveillance video and witness testimony.” ECF

No. [142] at 6. Moreover, Atlantic notes that, notwithstanding the fact that Stimpson’s opinions

were included in his expert report, Noble never filed a Daubert motion to exclude any of

Stimpson’s opinions. Atlantic claims there is no basis under Daubert to exclude Stimpson’s

opinions on the location of the fuel because his opinions are “appropriately based on record

evidence and [ ] were formed through appropriate methodology, including the procedures and

techniques set forth in the International Civil Aviation Organization (ICAO) Annex 13 Manual of

Aircraft Accident Investigation.” Id.

As a preliminary matter, Noble’s first motion is untimely. While Noble characterizes its

first motion as a motion in limine, the motion is plainly a Daubert motion. Noble’s basis for

excluding Pottinger and Stimpson’s testimony is that their testimony is “disallowed by Daubert.”

ECF No. [142] at 4. The deadline to file all Daubert motions was July 3, 2024. See ECF No. [22].

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Noble offers no good cause for why the Court should consider this untimely motion. Therefore,

the Court may deny the motion on that basis alone. See DS Waters of America, Inc. v. Fontis Water,

Inc., Civ. Act. No. 1:10-cv-0335-SCJ, 2012 WL 12875685, at *2 (N.D. Ga. Dec. 31. 2012) (“As

noted by the Eleventh Circuit, a court may decline to consider an untimely Daubert motion.”)

(citing Quite Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1349 (11th Cir. 2003)).

However, even considering Noble’s first motion on the merits, it must still be denied.

Noble previously attempted to exclude Pottinger’s testimony as pure opinion testimony in

its Daubert motion. As the Court thereafter explained in its Omnibus Order on September 6, 2024,

ECF No. [111], Pottinger’s opinion that the auxiliary tanks were filled is not mere speculation.

Pottinger ruled out alternative explanations for the accident and “reached his opinion by applying

his expertise to contrary record evidence ‘such as the obstructed video footage of the service line

technician fueling the aircraft, a systemic fueling chart of the aircraft, and the service line

technician’s deposition in which he testified that the location of the auxiliary tanks was the location

of the main tanks.”’ ECF No. [111] at 17-18. Because the Court has already found that Pottinger

utilized a reliable methodology to form his opinion that the auxiliary tanks rather than the main

tanks were filled, the Court denies Noble’s request to exclude Plaintiffs’ expert testimony.

The Court similarly denies Noble’s request to exclude Stimpson’s expert opinion

testimony. After reviewing Stimpson’s expert report, the Court finds that reliable methodologies

were used by Stimpson in forming his opinions. He formed opinions based on facts in the record

and utilized approved procedures and techniques set forth in the International Civil Aviation

Organization (ICAO) Annex 13 Manual of Aircraft Accident Investigation. See ECF No. 80-1.

Because Stimpson’s testimony will also assist the trier of fact in understanding the evidence,

exclusion is not warranted and Noble’s first motion in limine is denied.

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ii. Any Evidence Related to Lost Profits Including Evidence of Damages Related

to Lost Profits

Noble moves to exclude any evidence related to lost profits or evidence of damages related

to lost profits. Noble asserts that it has conducted thorough written discovery and has sought a

deposition of Plaintiff Richard Murphy and has uncovered no evidence of any lost profits. ECF

No. [142] at 7.

Neither Plaintiffs nor Atlantic oppose Noble’s motion to exclude evidence of lost profits.

Accordingly, Noble’s second motion in limine is granted.

iii. The Bahamian AAIA Report

Noble seeks to exclude the Bahamian Aircraft Accident Investigation Authority Report

(“AAIA Report”) on several grounds. First, Noble points out that, pursuant to the Bahamian

Aircraft Accident Investigation Authority Act, 2019, final AAIA reports “shall not be used as

evidence in any court proceeding or in other proceedings related to apportioning blame or

liability.” ECF No. [142] at 9. Noble also argues that the AAIA Report is inadmissible because it

“contains hearsay, irrelevant, speculative, untrustworthy, and inadmissible information.” Id.

Moreover, Noble contends no party is calling any witness who is capable of authenticating the

AAIA Report.

Plaintiffs assert they do not intend to put the AAIA Report itself into evidence. However,

Plaintiffs intend to have their expert testify that he relied on the AAIA Report in forming his

opinions.

Atlantic argues the AAIA Report is admissible and intends to introduce it into evidence.

According to Atlantic, “the report in question is not an NTSB report and therefore, 49 USC [§]

154(b) simply does not apply.” ECF No. [142] at 11. Atlantic argues even if the Court were to

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analogize the AAIA Report to an NTSB report, there are two different kinds of NTSB reports: (1)

board accident reports; and (2) factual accident reports. Atlantic explains that while board accident

reports are generally inadmissible at trial, “factual accident reports from the NTSB are admissible

at trial” Id. (quoting Escobar v. Nevada Helicopter Leasing LLC, Case No. 13-00598 HG-WRP,

2020 WL 104672, at *4 (D. Haw. Jan. 8, 2020)). Atlantic contends the AAIA Report is more akin

to a NTSB factual report and is therefore admissible. Additionally, Atlantic notes this case is not

governed by Bahamian law. Therefore, the Bahamian Aircraft Accident Investigation Authority

Act’s prohibition against the use of final reports in a court proceeding is inapplicable. Id.

The Court finds the AAIA Report has the potential to be admissible and Noble’s arguments

for exclusion are without merit. Although the Bahamian Aircraft Accident Investigation Authority

Act, 2019 states that “[f]inal reports shall not be used as evidence in any court proceeding or in

other proceedings related to apportioning blame or liability[,]” Plaintiffs’ claims are governed by

Florida law, not Bahamian law. Therefore, as the Court noted in its earlier Omnibus Order, the

admissibility of the AAIA Report under Bahamian law is wholly irrelevant. See ECF No. [111] at

30.

To the extent Noble attempts to exclude the AAIA Report under 49 U.S.C. § 1154(b) by

analogizing the Report to a National Transportation Safety Board report (“NTSB report”), the

Court is also unpersuaded. As the Court already explained, 49 U.S.C. § 1154(b) exclusively

governs the disclosure of reports by the National Transportation Safety Board. Therefore, since

the AAIA Report is not a NTSB report, 49 U.S.C. § 1154(b) is inapplicable.

Regarding Noble’s claims that the AAIA Report “contains hearsay, irrelevant, speculative,

untrustworthy, and inadmissible information, Noble offers no compelling argument in support.

The Court declines the invitation to exclude a report based on broad and vague assertions about

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the Report’s inadmissibility. The only specific arguments Noble asserts as a basis for exclusion

are that the makers of the Report did not consult the pilot and that no party intends to call a witness

to authenticate the Report. However, neither of those arguments is sufficient to warrant exclusion.

While the pilot may have been a useful person to contact during the investigation process, the

Bahamian Aircraft Administration Investigation Authority’s failure to do so does not inevitably

make the Report inadmissible. Noble offers no case law supporting the conclusion that a failure to

interview a witness makes an investigative report inherently inadmissible. Regarding Noble’s

argument that there is no witness the parties intend to call to authenticate the Report, this issue can

be resolved at trial as it appears Atlantic intends to authenticate the AAIA report under the public

records exception. See Fed R. Evid. 902(3) (providing for self-authentication of foreign public

documents). Since Noble fails to show that the AAIA Report is inadmissible on all potential

grounds at this juncture, Noble’s third motion in limine is denied.

iv. Any Evidence of Damages Not Recoverable Under the Montreal Convention

Noble seeks to exclude any evidence of damages that are not recoverable pursuant to the

Montreal Convention. Specifically, Noble requests that all evidence of Mr. Murphy’s emotional

damages be excluded and points out that the Court previously found that the Montreal Convention

applies. Noble contends that the Montreal Convention provides limitations of liability, including

that “a plaintiff cannot recover emotional damages unless they are ‘sufficiently connected to

physical injury.”’ ECF No. [142] at 12 (quoting In re Am. Airlines Flight 331, No. 10-20131-CV,

2013 WL 12340392, at *3 (S.D. Fla. Aug. 15, 2013)). Noble argues that since Mr. Murphy’s

claimed emotional damages are not directly connected to a particular injury sustained in the plane

crash, but arise more generally from the accident itself, evidence of Mr. Murphy’s emotional

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damages must be excluded pursuant to the limitations set forth in the Montreal Convention. ECF

No. [142] at 12.

Plaintiffs respond that “[e]motional harms are recoverable regardless of whether those

harms are caused directly by the physical injuries suffered by Plaintiff.” Id. at 13.

The Court does not find that the Montreal Convention limits Mr. Murphy’s ability to

recover emotional damages in this case. Indeed, courts have consistently held that emotional

damages are only recoverable when the emotional harms are a result of physical injuries. See In re

American Airlines Flight 331, Case No. 10-20131-CV-LENARD/O'SULLIVAN, 2014 WL

12809819, at *3 (S.D. Fla. Jan. 23, 2014) (“emotional injury is compensable under the Montreal

Convention only if it is caused by physical injury”); Jacob v. Korean Air Lines Co. Ltd., 606 F.

App’x 478, 482 (11th Cir. 2015) (“[A]t best, ‘mental injuries are recoverable under Article 17 only

to the extent that they have been caused by bodily injuries.”’) (quoting Ehrlich v. Am. Airlines,

Inc., 360 F.3d 366, 400 (2d Cir. 2004)). However, Plaintiffs do not concede that Mr. Murphy’s

emotional damages are not the product of any physical injuries he suffered in the plane crash.

Therefore, to the extent testimony or other evidence can establish that Mr. Murphy’s emotional

harms were a direct result of the physical injuries he suffered, emotional damages are recoverable

and the evidence is admissible. See In re Am. Airlines Flight 331, Case No. 10-20131-CV-

LENARD/GOODMAN, 2014 WL 12809892, at *3 (S.D. Fla. Apr. 4, 2014) (finding “sufficient

evidence to sustain recovery by Plaintiff for emotional-harm damages relating to her anxiety and

stress from her neck, lower back, and right shoulder injuries and her feeling anxious and depressed

from the inability to engage in certain activities as she did prior to the December 2009 crash.”).

Accordingly, Noble’s fourth motion in limine is denied.

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B. Defendant Atlantic’s Motions in Limine

Defendant Atlantic moves to preclude evidence or arguments regarding the following

eleven topics at trial2:

i. Preclude Argument, Evidence, or Testimony Regarding Spoliation or

Preservation of Videos

Atlantic moves to preclude Plaintiffs from offering any arguments, evidence, or testimony

regarding Atlantic’s preservation of video surveillance footage.Specifically, Atlantic requests that

the Court prohibit Plaintiffs from introducing evidence or testimony “encouraging the jury to infer

Atlantic’s failure to preserve additional footage must mean [Atlantic was] negligent in fueling the

Aircraft.” ECF No. [142] at 14. Atlantic contends any such evidence or testimony should be

excluded pursuant to Federal Rules of Evidence 401 and 403. According to Atlantic, evidence

regarding its post-crash conduct is simply irrelevant as such evidence has no bearing on the issues

in this case, i.e., “whether or not Atlantic breached a duty at the time of fueling, and whether such

breach was the proximate cause of the crash.” ECF No. [142] at 14.

Atlantic contends that the evidence is not relevant, and the probative value is “substantially

outweighed by the danger of unfair prejudice, wasting time, confusing the issues, and misleading

the jury.” Id. Atlantic argues that it would be unfair for Plaintiffs to make arguments involving the

spoliation of evidence when Atlantic had no duty to preserve the footage and there is no evidence

that Atlantic acted in bad faith by failing to maintain the footage. Additionally, Atlantic contends

introducing this type of evidence would also invite the jury to unjustly infer an adverse inference

2 Defendants Noble and Gutierrez filed a notice of joinder as to all of Atlantic’s motions in limine except

Atlantic’s motion to preclude argument, evidence or testimony regarding spoliation or preservation of

videos, and Atlantic’s motion to exclude testimony and records from Drs. Levi, Baker and Spiroff. See ECF

No. [139].

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against Atlantic, mislead the jury into “speculating that Atlantic concealed, altered, or destroyed

evidence[,]” and would result in “a waste of time and resources” on an “entirely peripheral issue.”

Id.

Plaintiffs respond that regardless of whether Atlantic acted in good faith, Atlantic’s action

led to the destruction of evidence. Therefore, Plaintiffs may still argue the evidence existed and

was not preserved. According to Plaintiffs, even when a party prejudiced by the destruction of

evidence is not moving for a spoliation sanction or seeking a spoliation instruction, “they may still

introduce evidence of failure to preserve relevant data.” ECF No. [142] at 15.

Defendants Noble and Gutierrez also oppose Atlantic’s motion and argue that, but for

Atlantic’s failing to persevere the video in question, the parties could have conclusively

determined which tanks Atlantic put the fuel in. Id. at 16. Given Atlantic’s failure to preserve this

important evidence, “Noble and Gutierrez seek an inference that the main tanks were serviced by

Atlantic.” Id. at 16.

The Court agrees with Atlantic that any evidence regarding its purported failure to preserve

video footage is inadmissible under the circumstances where (1) Plaintiffs are not seeking

spoliation sanctions, (2) Atlantic was under no duty to preserve any such footage, (3) the record

otherwise fails to support that Atlantic should have preserved additional footage or that its failure

to preserve was done in bad faith. See ECF No. [111] at 25 (wherein the Court explained why

testimony regarding Atlantic’s alleged destruction of evidence is inadmissible). Although it is true

that courts have still allowed a party to introduce evidence of the destruction of evidence to the

jury even where the moving party failed to show bad faith or otherwise prove spoliation, the

decision whether to admit such evidence is left to the sound discretion of the district judge. See,

e.g., Floeter v. City of Orlando, No. 6:05-cv-400-Orl-22KRS, 2007 WL 486633, at *7 (M.D. Fla.

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2007). As there is no evidence in the record of bad faith or misconduct on the part of Atlantic, the

Court finds no probative value to the proposed evidence. Indeed, Plaintiffs fail to provide any other

purpose for the evidence other than to create an inference that, because the video no longer exists,

Atlantic must be responsible for improperly filling the fuel tanks. Accordingly, the probative value

that any evidence or testimony regarding the failure to preserve the video could provide would be

substantially outweighed by the risk of potential prejudice. Therefore, the Court excludes any such

evidence or testimony on Rule 403 grounds.

The Court also rejects Noble and Gutierrez’s request for an adverse inference that the main

tanks were serviced by Atlantic. Their request is not a request to present evidence, but rather a

request for spoliation sanctions yet they provide no basis for such sanctions. To receive spoliation

sanctions, the moving party bears the burden of proving “first, that the missing evidence existed

at one time; second, that the alleged spoliator had a duty to preserve the evidence; and third, that

the evidence was crucial to the movant being able to prove its prima facie case or defense.”

Managed Care Solutions, Inc., v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1322 (S.D. Fla.

2010) (quoting Walter v. Carnival Corp., No. 09–20962–CIV, 2010 WL 2927962, at *2 (S.D. Fla.

July 23, 2010)); see Sharp v. City of Palatka, No. 3:06–cv–200–JTEM, 2008 WL 89762, at *1

(M.D. Fla. Jan. 7, 2008) (same). Additionally, once all three elements are met, “a party’s failure

to preserve evidence rises to the level of sanctionable spoliation ‘only where the absence of that

evidence is predicated on bad faith,’ such as where a party purposely loses or destroys relevant

evidence.” See Walter, 2010 WL 2927962 at *2 (quoting Bashir v. Amtrack, 119 F.3d 929, 931

(11th Cir. 1997)). Noble and Gutierrez have failed to make any showing that Atlantic had a duty

to preserve the video evidence in question. As such, even were Noble and Gutierrez able to

prove Atlantic acted in bad faith and the evidence is crucial to their case, a spoliation sanction

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would not be warranted. The Court grants Atlantic’s first motion in limine.

ii. Exclude Video Recorded Statements of Plaintiff Richard Murphy

Atlantic’s seeks to exclude three videos in which Plaintiff Richard Murphy recounts the

events of the accident. Plaintiffs do not oppose the motion as they do not intend to introduce those

videos into evidence. No other parties raised objections. As such, Atlantic’s second motion in

limine is granted.

iii. Preclude Medical Testimony and Opinions from Plaintiffs and Other Lay

Witnesses

Atlantic moves to preclude Plaintiffs and any other lay witnesses from providing medical

testimony or opinions regarding the injuries Plaintiff Richard Murphy sustained in the plane crash.

Atlantic contends that while “Plaintiff may testify regarding his perception of his pain and

symptoms he experiences, Plaintiff is not competent to testify about any medical diagnosis, injury,

condition, or any future prognosis” as he is a lay witness, not a medical expert. ECF No. [142] at

19. Additionally, Atlantic asserts that Mr. Murphy, as a lay witness, may not offer an opinion on

the cause of his injuries as medical causation is beyond the scope of a layperson’s knowledge.

Atlantic notes Mr. Murphy also cannot testify to what a treating physician may have told him as

such testimony would constitute impermissible hearsay. Since Mr. Murphy has not designated any

medical experts to testify as to his conditions or to proffer any medical causation opinion, Atlantic

requests that the Court preclude Plaintiffs from using a lay witness to introduce any medical

opinion or medical causation testimony.

Plaintiffs argue Mr. Murphy “should be permitted to testify fully what he experienced as

injuries, including any symptoms related to the mental anguish he experienced post[-]accident.”

ECF No. [142] at 20. Plaintiffs argue the case Atlantic relies upon, Wingster v. Head, 238 F. App’x.

13

809, 814 (11th Cir. 2009), does not support excluding Mr. Murphy’s anticipated testimony

regarding his injuries. Moreover, Plaintiffs contend that Atlantic should not be able to “muzzle the

Plaintiff from being able to describe what his injuries are and how they have affected him.” ECF

No. [142] at 20.

The Court will exclude Mr. Murphy’s anticipated testimony only to the extent Mr. Murphy

intends to testify as to specific medical diagnoses and the medical cause of his alleged injuries.

While “medical diagnoses and medical causation opinions ordinarily present technical and

scientific issues that require specialized knowledge of an expert witness,” as Atlantic admits, a

plaintiff “may [nevertheless] testify to personal perceptions of his own physical or emotional state”

both before and after an incident. In re American Airlines Flight 331, Case No. 10-20131-CV-

LENARD/O'SULLIVAN, 2013 WL 12340397, at *2 (S.D. Fla. Oct. 24, 2013) (citing Dallis v.

Aetna Life Ins. Co., 768 F.2d 1303, 1306 (11th Cir. 1985)). Under Florida law, a plaintiff must

rely on expert opinion regarding medical diagnosis and medical causation when the causal link

between injuries and the incident are not readily apparent. See Willis v. Royal Caribbean Cruises,

Ltd., 77 F.4th 1332, 1338 (11th Cir. 2023) (“Looking to Florida negligence law, we find the same

rule: non-readily observable injuries require expert medical evidence to prove causation.”) (citing

Crest Prods. v. Louise, 593 So. 2d 1075, 1077 (Fla. 1st DCA 1992) and Wausau Ins. Co. v. Tillman,

765 So. 2d 123, 124 (Fla. 1st DCA 2000) (collecting cases)). Therefore, because Mr. Murphy’s

purported back fracture and PTSD are not readily apparent injuries, Mr. Murphy cannot testify to

his particular diagnoses or that the plane crash was the medical cause of those injuries. See Harrell

v. Carnival Corp., Civ. Act. No. 5:10–CV–044(CAR), 2021 WL 6927557, at * 4 (S.D. Fla. Dec.

3, 2021) (identifying plaintiff’s “non readily observable injuries” to be her “fractured or sprained

ankle, nerve damage, CRPS, depression, post-traumatic stress disorder, and anxiety”). However,

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Mr. Murphy may still give lay opinions that are based on his own personal knowledge, such as his

symptoms before and after the crash. Additionally, Mr. Murphy may also “testify that emotional

distress resulted from certain physical injuries.” In re American Airlines Flight 331, 2013 WL

12340397, at *2 (citing Tindall v. H & S Homes, LLC, No. 5:10-CV-044, 2011 WL 5007827, at

*6 (M.D. Ga. Oct. 20, 2011) (“Plaintiff may testify as to her own mental suffering and her lay

opinion as to its cause.”) (citations omitted) and Shojeai v. United States, No. 5:11-cv-247-Oc-10-

TBS, 2013 WL 145763, at *2–3 (M.D. Fla. Jan. 14, 2013) (allowing a plaintiff to testify that her

arrest and incarceration caused her emotional damages without the need for medical expert

testimony.)). Thus, while the “Court will not wordsmith Plaintiff’s anticipated testimony about the

injuries he allegedly suffered,” the Court will preclude Mr. Murphy from providing his own expert

testimony regarding his diagnosis and the medical cause of that diagnosis. White v. Mesa, Case

No. 1:17-cv-23940-UU, 2018 WL 8809237, at *4 (S.D. Fla. Aug. 28, 2018). As such, Atlantic’s

third motion in limine is granted only to the extent Atlantic seeks to preclude Mr. Murphy from

providing expert testimony.

iv. Preclude Treating Providers from Offering Causation Opinions, Testifying to

Undisclosed Opinions, or Testifying to Treatment Outside of Their Own

Atlantic seeks to preclude Mr. Murphy’s treating physicians, Dr. Ronald Tolchin and Dr.

Ramon Estape, from “testifying regarding the diagnoses and treatment of other treaters” for several

reasons. Atlantic claims since neither doctor was retained, and therefore did not provide a written

report, Atlantic is forced to rely on vague disclosures that offer little insight as to what opinions

the doctors will offer and what factors the doctors relied upon. Additionally, since Plaintiffs did

not identify any treatment records their physicians reviewed, nor did they disclose any opinions

from their physicians regarding the necessity of any treatment beyond their own, Atlantic claims

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any such testimony about another doctor’s treatment would be outside the scope of their limited

expert designations and would be inadmissible as the testimony would be beyond the scope of the

treating physicians’ personal knowledge.

Atlantic also argues that Dr. Tolchin and Dr. Estape should be prohibited from offering

medical causation testimony at trial. Plaintiff’s disclosures do not indicate that either physician

intended to proffer expert causation testimony. Since Dr. Tolchin does not need to know how

Plaintiff was injured in order to treat him, Plaintiff may not use the treating physician as a basis to

offer an opinion on medical causation.

Plaintiffs respond and contend that Dr. Tolchin and Dr. Estape may testify that the medical

issues Mr. Murphy is suffering are a result of the plane crash because a treating physician may

“offer any opinion they came to as a result of [the physicians] care and treatment of the Plaintiff.”

ECF No. [142] at 22.

Atlantic is mistaken that Plaintiffs’ treating physicians may not provide medical expert

testimony and that any testimony must be limited to their personal knowledge. While historically

courts have held that, pursuant to Rule 26, non-retained treating physicians who do not provide an

expert report are precluded from providing expert medical testimony, those holdings are no longer

good law. In Cedant v. United States, the Eleventh Circuit explained non-retained experts may

provide expert medical testimony, including expert medical causation testimony, even though such

experts are, by default, only required to provide a limited disclosure. See 75 F.4th 1314, 1325 (11th

Cir. 2023) (“Cedant was also right that such non-retained experts generally are not required to file

a Rule 26(a)(2)(B) report simply because they are testifying on a specific subject, such as

causation”). The Eleventh Circuit clarified that whether an expert witness is required to provide a

disclosure under Rule 26(a)(2)(C) or a detailed written report under Rule 26(a)(2)(B) is not

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dictated by the subject matter of the expert’s intended testimony but instead whether the expert is

retained or not retained. See id. at 1324. Because Dr. Tolchin and Dr. Estape are non-retained

experts, they do not have to supply a written report providing the level of detail expected from a

retained expert in order to offer medical opinion testimony. Dr. Tolchin and Dr. Estape’s status as

non-retained experts has no impact on the scope of their testimony. See id. (“The expert's job title,

the subject or scope of his testimony, and the way that he formed his opinions are irrelevant

inquiries for Rule 26(a)(2) purposes. The only question presented by the Rule’s text is whether the

witness was retained as an expert or otherwise employed as described in Rule 26(a)(2)(B).”).

Accordingly, since Plaintiffs’ non-retained experts have satisfied the Rule 26(a)(2)(C) disclosure

requirements, the Court will not limit Dr. Tolchin or Dr. Estape’s intended testimony. Thus,

Atlantic’s fourth motion in limine is denied.

v. Preclude Testimony or Evidence Regarding Speculative Future Surgery

Atlantic seeks to preclude testimony or evidence regarding Mr. Murphy’s need for future

surgery as all such evidence would be “purely speculative.” ECF No. [142] at 23. Atlantic

maintains that a plaintiff may only recover future medical expenses that are reasonably certain to

be incurred. A mere possibility that treatment will be needed in the future is insufficient. Atlantic

claims since Plaintiffs have not designated a medical expert or a treating surgeon who intends to

opine on the medical necessity of Mr. Murphy’s future need for surgery, Plaintiff will not be able

to establish the need for future surgery with a reasonable degree of certainty. Atlantic contends

Plaintiffs only identify Dr. Tolchin as witness who may opine on this issue, and he has no records,

nor has he made any assertions that any future surgery is necessary to a degree of reasonable

certainty.

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Plaintiffs respond that both Dr. Tolchin and Dr. Estape should be able to testify that Mr.

Murphy’s medical conditions are a product of the plane crash. Plaintiffs again argue that Mr.

Murphy’s treating physicians “can offer any opinions they came to as a result of their care and

treatment of the Plaintiff.” ECF No. [142] at 24. However, Plaintiffs make no specific argument

for why Mr. Murphy’s treating physicians are permitted to opine on whether Mr. Murphy will

require surgery in the future.

To the extent that Plaintiffs intend to offer speculative testimony about Mr. Murphy’s need

for future surgery, such testimony is excluded. “Only those future medical expenses that are

reasonably certain to be incurred are recoverable as damages in a personal injury action, and it

follows that a recovery of future medical expenses cannot be grounded on the mere possibility that

certain treatment might be obtained in the future.” Stern v. NCL Bahamas Ltd., Case No. 19-20280-

CIV-MORENO/LOUIS, 2020 WL 6822979, at *4 (S.D. Fla. Sept. 23, 2020). Plaintiffs offer no

record evidence that Mr. Murphy’s treating physicians have recommended that Mr. Murphy will

need surgery in the future. The only evidence to support the contention that Mr. Murphy will

require surgery in the future is Dr. Tolchin’s expert disclosure, wherein Dr. Tolchin indicates Mr.

Murphy’s injuries are “permanent and may require future surgery.” ECF No. [57] at 3 (emphasis

added). However, the mere possibility of future surgery is an insufficient basis for the jury to award

damages. See Iglinski v. Elec. Ins. Co., Case No. 8:21-cv-1304-VMC-JSS, 2021 WL 2284135, at

*2 (M.D. Fla. June 4, 2021) (“And although Electric Insurance attempts to use Iglinski's medical

providers’ opinions that she may need additional medical care in the amounts of $77,104.00,

$91,770.00, $1,219, and $158,064.00 for various treatments, the mere possibility of future medical

care is too speculative to support such a finding.”) (citing Favors v. Dolgencorp, LLC, No. 14-cv-

60267-KMM, 2014 WL 11775522, at *2 (S.D. Fla. Nov. 3, 2014)).

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Therefore, because there are no medical records indicating with a reasonable degree of

medical certainty that Mr. Murphy will more likely than not require surgery in the future, testimony

on the need for future surgery is too speculative to be admissible. As such, Atlantic’s fifth motion

in limine is granted.

vi. Preclude Argument, Testimony, or Evidence that Plaintiff was Diagnosed

with Post-Traumatic Stress Disorder

Atlantic seeks to preclude evidence or testimony that Mr. Murphy suffers from Post

Traumatic Stress Disorder (“PTSD”) as a result of the plane crash. Atlantic argues that neither of

Mr. Murphy’s treating physicians disclosed opinions regarding Mr. Murphy’s PTSD and neither

physician diagnosed Mr. Murphy with PTSD. ECF No. [142], at 25. Dr. Saez diagnosed Mr.

Murphy with PTSD. Id. Therefore, Atlantic contends that any potential testimony from Dr. Tolchin

regarding Mr. Murphy’s PTSD evaluation would be inadmissible hearsay. Furthermore, Atlantic

claims there is no record evidence that Mr. Murphy’s PTSD was caused by the subject accident

and all such evidence regarding Mr. Murphy’s PTSD diagnosis should be excluded. See id.

Plaintiffs maintain that, as Mr. Murphy’s treating physicians, Dr. Tolchin and Dr. Estape

“can offer any opinions they came to as a result of their care and treatment.” ECF No. [142] at 26.

Thus, neither treating physicians should be precluded from testifying that the medical issues Mr.

Murphy is experiencing, including PTSD, are a result of the plane crash.

In this jurisdiction “a physician need not necessarily examine a patient, interview that

patient, or speak with the patient’s treating physician(s) in order to render opinions regarding

diagnosis prognosis, course of treatment and perhaps even causation.” Geyer v. NCL (Bahamas)

Ltd., 203 F. Supp. 3d 1212, 1216 (S.D. Fla. 2016) (quoting Haller v. AstraZeneca Pharm. LP, 598

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F. Supp. 2d 1271, 1294-95 (M.D. Fla. 2009)).3 Since Dr. Tolchin is an expert physician in this

case, see ECF No. [57], he does not need to have personally diagnosed Mr. Murphy in order to

render an opinion on his diagnosis. Additionally, Dr. Tolchin will not be precluded from opining

on Mr. Murphy’s PTSD simply because he relied on another physician’s medical records to form

his opinion. See In re Wright Med. Tech. Inc., Conserve Hip Implant Prod. Liab. Litig., 127 F.

Supp. 3d 1306, 1325 (N.D. Ga. 2015) (“It is commonly accepted that medical records and

statements by a patient’s treating physician are materials upon which testifying medical experts

may reasonably rely.”).

The Court also disagrees that Dr. Tolchin’s disclosure is insufficient. Pursuant to Rule

26(a)(2)(C), a non-retained expert must provide a disclosure that states (1) “the subject matter on

which the witness is expected to present evidence,” and (2) “a summary of the facts and opinions

to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). Dr. Tolchin has adequately

articulated the subject matter of which he intends to testify, namely, “Mr. Murphy’s medical

treatment, including his diagnosis and opinions obtained through treatment.” ECF No. [57] at 3.

He has also provided a summary of the facts and opinions he intends to present. See id. The Court

does not find that Dr. Tolchin’s disclosure is deficient because he did not specifically state that he

would testify as to Mr. Murphy’s PTSD. 4 Consequently, the Court will not prevent Plaintiffs from

3 See also Rafferty v. Erhard, No. 09–CV–1019, 2012 WL 2577473, at *7 (W.D.N.Y. July 3, 2012) (“[T]he

fact that a physician has not examined the plaintiff does not necessitate a finding that any such expert report

or testimony offered by the physician is inadmissible under Daubert.”).

4 Additionally, the Court does not see a reason why Dr. Tolchin should be precluded from opining on the

cause of Mr. Murphy’s PTSD. As a medical expert witness, Dr. Tolchin may opine that the plane crash

caused Mr. Murphy’s PTSD.

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introducing evidence that Mr. Murphy now suffers from PTSD as a result of the plane crash.

Atlantic’s sixth motion in limine is denied.

vii.Preclude Argument, Testimony, or Evidence Regarding Alleged Business

Damages, Lost Customers, Lost Profits, or Lost Income to Non-Party Entities

Atlantic seeks to preclude testimony or evidence regarding Plaintiffs’ alleged business

damages, lost customers, or lost profits as a result of the plane crash.

Plaintiffs own several companies, but as Atlantic notes, none of Plaintiffs’ business entities

is a party in this case. Accordingly, Atlantic argues that any damages or lost profits those

businesses suffered are irrelevant to these proceedings and are based on speculation and hearsay.

As such, Atlantic asserts “Plaintiffs should not be able to introduce speculative testimony or

hearsay evidence regarding the accident’s impact on Plaintiffs’ non-party business entities, or to

claim lost business income as damages in this matter.” ECF No. [142] at 27.

Plaintiffs do not oppose Atlantic’s motion in limine to the extent it only seeks to preclude

testimony or evidence regarding damages and lost profits to Plaintiffs’ non-party business entities.

However, Plaintiffs insist that Mr. Murphy “should not be precluded from testifying regarding how

his injuries [from the crash] may limit him, including how it affects his work.” Id. at 28. Because

the Court does not read Atlantic’s motion in limine to seek to limit Mr. Murphy’s from testifying

about his own injuries and how it affects his ability to carry on his day-to-day work activities, the

Court finds there is no opposition to the motion. Accordingly, Atlantic’s seventh motion in limine

is granted.

viii. Preclude Argument, Testimony, or Evidence Regarding Lost Personal

Income

Atlantic seeks to preclude Plaintiffs from introducing testimony or evidence about

Plaintiffs’ lost personal income. Atlantic claims such evidence should be precluded because

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Plaintiffs have failed to specify the amount of lost income and have not offered “any evidence

substantiating these alleged damages.” ECF No. [142] at 29. Therefore, Atlantic contends any lost

income would be based on pure speculation. Id.

Plaintiffs do not object to the exclusion of evidence or testimony on lost profits or income.

Plaintiffs assert that they only intend to seek out-of-pocket expenses such as the costs of out-of-

pocket medical expenses. Id. at 30. Because Plaintiff does not object to Atlantic’s eighth motion

in limine, and the motion is granted.

ix. Preclude Argument, Testimony, or Evidence Regarding Loss of Future

Earnings or Future Earning Capacity

Atlantic seeks to preclude Plaintiffs from arguing or offering testimony regarding the

Plaintiffs’ alleged lost earning capacity. Atlantic asserts that Mr. Murphy has only vaguely alluded

to not being able to continue offering fishing charters in the future. According to Atlantic, Mr.

Murphy “has admitted there is no other way that he feels his earning capacity has been

diminished.” ECF No. [142] at 31 (citing Exhibit F, Richard Murphy May 6, 2024 Dep. Tr. at p.

73:4-7). Atlantic maintains there is no other evidence that Mr. Murphy’s earning capacity has been

impacted, and thus, the evidence on this issue is far too speculative to be presented to a jury.

Atlantic also argues Mr. Murphy is not competent to testify “whether his earning capacity has been

dismissed as a result of the accident,” as such an opinion constitute expert testimony. Id.

Plaintiffs argue that Mr. Murphy “should not be precluded from testifying regarding how

his injuries may limit him, including how it affects his work.” Id. at 32. Plaintiffs note there is

evidence that Mr. Murphy suffered both back and neck injuries as well as emotional injuries as a

result of the plane crash. Plaintiff contends that Mr. Murphy should be allowed to testify “how he

feels [these injuries] will affect his day to day work and ability to work as a fishing captain.” Id.

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However, Plaintiffs offer no evidence which would support Mr. Murphy’s lost earning

capacity. Under Florida Law, a party may only recover “for lost earning capacity where the loss

can be established with reasonable certainty.” Russ v. Berchtold Corp., Case No. 12-cv-24482-

UU, 2013 WL 12092681, at *4 (S.D. Fla. Nov. 20, 2013). “A plaintiff must demonstrate not only

a reasonable certainty of some loss of earning capacity but must also prove the extent of such loss

to a reasonable certainty.” Id. Plaintiffs believe testimony about how Mr. Murphy “feels” his injury

will affect his work satisfies the reasonable certainty requirement to prove loss of earning capacity.

The Court is not convinced. Not only are Mr. Murphy’s feelings about his limitations following

the plane crash far too speculative to demonstrate that he suffered a loss in earning capacity, but

Plaintiffs also fail to offer any evidence which would prove the extent of the loss in earning

capacity. See SMS Audio, LLC v. Belson, Case No. 9:16-cv-81308-MIDDLEBROOKS, 2017 WL

11631378, at *4 (S.D. Fla. Apr. 24. 2017) (“[L]ost profits must be a ‘natural, proximate, probable

or direct consequence of the [defendant's] act.’”… Plaintiffs may not recover for ‘uncertain

damages,’ or those that are ‘not the certain result of the wrong.’”) (quoting Taylor Imp. Motors,

Inc. v. Smiley, 143 So. 2d 66, 67-68 (Fla. 3d DCA 1962) and Story Parchment Co. v. Paterson

Parchment Paper Co., 282 U.S. 555, 562 (1931)). Plaintiffs do not assert that they intend to show

earnings statements indicating how much Mr. Murphy was earning before versus how much less

he is earning today, nor do they intend to present any evidence that his injuries have prevented him

from earning income because of his inability to perform all the duties required of his job. As such,

Atlantic’s ninth motion in limine is granted.

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x. Preclude Hearsay Evidence and Speculative Testimony Regarding Lost

Customers or Customers’ Motivations for Stopping or Reducing Business with

Non-Party Business Entities

Atlantic contends that if the Court does not exclude all evidence regarding lost business

income, “Plaintiff should [still] be precluded from introducing hearsay and speculative testimony

regarding the purported reasons why customers or sponsors reduced or stopped business with

Plaintiffs’ companies.” ECF No. [142] at 33. Specifically, Atlantic seeks to exclude testimony

regarding Diamond Fishing Products’ decision to decline to renew a contract with one of Plaintiffs’

companies due to Mr. Murphy’s accident. According to Atlantic, the evidence would be that Ms.

De Leon “was told Diamond Fishing did not want to re-sign because they signed up for Rick

[Murphy] to be filming the shows and not anyone else in his place.” Id. Because the proposed

evidence is based on what Ms. De Leon heard from Diamond Fishing, the testimony would

constitute inadmissible hearsay. Additionally, Atlantic argues that the evidence is inadmissible

because it would require speculation that the reason sponsors decided not to renew contracts was

due to Mr. Murphy’s injuries. Atlantic claims the evidence should also be excluded on Rule 403

grounds because the proposed evidence is not based on personal knowledge and would ultimately

confuse and mislead the jury about the relevant issues in the case.

While Plaintiffs did not object to Atlantic’s seventh or eighth motion in limine which

sought to preclude Plaintiffs from introducing any evidence on lost business profits as well as lost

personal profits, Plaintiffs now oppose Atlantic’s more narrow motion which only seeks to exclude

testimony regarding the Plaintiffs’ companies’ alleged loss of customers and sponsors following

the plane crash. Although Plaintiffs previously stated they are “only seeking out of pocket

expenses,” Plaintiffs now wish to introduce evidence on the loss of certain business opportunities.

ECF No. [142] at 30. Plaintiffs argue that such evidence is admissible because “there is testimony

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that certain business opportunities were not pursued by a vendor because of the uncertainty

surrounding Rick Murphy’s availability etc.” ECF No. [142] at 34.

The Court agrees with Atlantic and finds that Plaintiffs’ proposed testimony regarding lost

customers and business opportunities is too speculative to be admitted. Plaintiffs are unable to

offer any specificity to their claim that they suffered a loss in customers and business opportunities.

Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1177-78 (11th Cir. 2002) (“[D]amages may not

be awarded for lost profits when those profits are dependent on a party taking an action that it is

unclear he would have taken.”). As such, the Court grants Atlantic’s tenth motion in limine.

xi. Exclude Testimony and Records from Drs. Levi, Baker, and Spiroff

Atlantic seeks to exclude testimony, evidence, or records from Dr. Allan Levi, Dr. Tracey

Baker, and Dr. Richard Spiroff pursuant to Fed. R. Civ. P. 37(c)(1). Atlantic asserts that Plaintiffs

never produced medical or billing records from Dr. Levi or Dr. Baker at any point during these

proceedings and claims it would be unfairly prejudiced if Dr. Levi and Dr. Baker were permitted

to testify at trial without Plaintiffs ever having produced the relevant records related to their

testimony.

Atlantic also argues that Plaintiffs failed to comply with Rule 26(a)(2) as Plaintiffs “did

not designate any of these doctors as non-retained expert witnesses” or “provide summaries of [the

doctors’] facts and opinions.” ECF No. [142] at 35. Therefore, all three doctors should be

precluded from providing expert testimony and opinions on causation. Consequently, since none

of these doctors can provide medical causation testimony, and Plaintiff has not otherwise

designated a medical expert to provide causation testimony, Atlantic contends that any lay

testimony regarding their treatment of Mr. Murphy would be irrelevant as there is no evidence that

can connect their treatment to the plane crash at issue in this case. See id.

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Case No. 23-cv-23654-BLOOM/Torres

Although Plaintiffs do not explicitly state whether or not they oppose Atlantic’s motion in

limine, Plaintiffs state “[nJo evidence should be introduced regarding these doctors.” /d. at 36.

Because Plaintiffs offer no opposition to Atlantic’s eleventh motion in /imine, it is granted.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the parties’ Motions in Limine,

ECF No. [142], are GRANTED IN PART and DENIED IN PART.

DONE AND ORDERED in Chambers at Miami, Florida, on September 30, 2024.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

ce: counsel of record

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