Preview
Filing # 188879610 E-Filed 01/02/2024 08:37:32 AM
IN THE CIRCUIT COURT OF THE 9™ JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2020-CA003035
JEAN TOUSSAINT and
MAGDALENE TOUSSAINT,
Plaintiffs(s),
vs.
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY, a Florida corporation,
/
PLAINTIFFS’ MOTION IN LIMINE AND/OR TO STRIKE DEFENDANT’S
(UNDISCLOSED) FACT AND EXPERT WITNESSES, AND (UNDISCLOSED)
EXHIBITS
Pursuant to the applicable rules of this Court, Plaintiffs, JEAN TOUSSAINT and
MAGDALENE TOUSSAINT, move for an Order in Limine from this Court precluding
Defendant, Universal Property & Casualty Insurance Company, from eliciting or seeking to elicit
testimony from any fact witness and expert witness, or from relying on any exhibits, not timely
disclosed. The grounds for this Motion are:
I Introduction
To date, Defendant has failed to disclose its fact witness and expert witness lists, or exhibit
list, let alone do so in compliance with this Court’s pre-trial order. As a result of Defendant’s
failure to identify any expert witness, Plaintiffs’ counsel has not been able to able to depose any
of Defendant’s potential experts (to the extent it intended on ever trying to name any) prior to the
Pretrial Conference, resulting in prejudice and delay to the Plaintiffs. Accordingly, this Court
should preclude Defendant from eliciting or seeking to elicit testimony at trial from any fact
witness and expert witness not timely disclosed, or relying on exhibits not timely disclosed.
Il. Memorandum of Law
A pretrial order directing the parties to exchange the names of witnesses requires a listing
or notification of all witnesses that the parties reasonably foresee will be called to testify, whether
for substantive, corroborative, impeachment or rebuttal purposes. Binger v. King Pest Control, 401
So. 2d 1310, 1313 (Fla. 1981). Where a party has failed to disclose its witness in accordance with
the trial court order, the testimony of that witness may be excluded at the trial court’s discretion.
HSBC Bank Mortg. Corp. (USA) v. Lees, 201 So. 3d 699, 702 (Fla. 4" DCA. 2016). In making this
determination, the Court should consider whether the ability to cure the prejudice by the late or
non-existent disclosure or, similarly, the independent knowledge of existence of witness, the
calling party's possible intentional, or bad faith, noncompliance with pretrial order, and possible
disruption of orderly and efficient trial of case. Binger, 401 So. 2d at 1314.
Til. The Court Should Preclude Defendant from Offering the Testimony of Fact
Witnesses and Expert Witnesses
Defendant failed to disclose any fact witness and expert witness to testify regarding this
matter. The Court’s Trial Order required Defendant to disclose its expert witnesses by November
3, 2023! and fact witnesses and exhibits by December 1, 2023, respectively. See Uniform Trial
Order attached as Exhibit “A.” Defendant has made no attempt to address its non-compliance
with counsel or the Court. Therefore, the Court should preclude any fact witnesses and expert
witnesses? from testifying on behalf of Defendant, and Defendant from utilizing any undisclosed
' Per the Uniform Trial Order, Defendant’s deadline to disclose its expert witnesses was 15 days after
Plaintiffs disclosed their expert witnesses. Plaintiffs disclosed their expert witnesses on October 19, 2023,
therefore, Defendant’s deadline to disclose its expert witnesses fell on November 3, 2023.
2 Similarly, in Nicholson v. Universal, Broward Circuit Court Judge Shari Olefson granted Plaintiffs’
Motion to Strike Defendant’s expert witness for failure to timely disclose its expert witness per a trial order.
See Nicholson v. Universal, Order [granting] Plaintiffs’ Motion to Strike Defendant’s Witness, dated July
21, 2023, attached as Exhibit “B.”
exhibits at trial.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court should enter an
Order precluding Defendant eliciting or seeking to elicit testimony at trial from any fact witness
and expert witness not timely disclosed, from utilizing any exhibits not timely disclosed, and to
enter any further relief it deems just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email
this 24 day of January, 2023 to: Kristen H. McMullen, Esq. and Tracy T. Segal, Esq.; AKERMAN
LLP; 777 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401; Telephone: (561) 653-
5000; Facsimile: (561) 659-6313; Email: Kristen.mcmullen@akerman.com.
tracy.segal@akerman.com, and elisa.waites@akerman.com.
Sherman Law, P.A.
Counsel for Plaintiffs
18801 NE 21“ Avenue
Miami, FL 33179
Direct: (305) 494-6345
Fax: (305) 397-1725
By: /s/ Ryan Sherman
RYAN H. SHERMAN, Esq.
Florida Bar No.: 686271
GEORGE ORELLANA, Esq
Florida Bar No.: 113051
EserviceSLPA@gmail.com
EXHIBIT “A”
Filing # 178006744 E-Filed 07/21/2023 07:26:16 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. CACE21021868 DIVISION: 25 JUDGE: Olefson, Shari Africk (25)
Charles Nicholson, et al
Plaintiff(s) / Petitioner(s)
Vv.
Universal Property & Casualty Insurance Company
Defendant(s) / Respondent(s)
/
ORDER STRIKING DEFENDANT'S WITNESS, FRANK RAMOS, FROM TESTIFYING IN
THIS MATTER
THIS CAUSE having come before the Court on July 19, 2023, on Plaintiffs’ Motion to Strike
Defendant’s Witness, Frank Ramos, the Court having been advised of an agreement by counsels, and
being otherwise advised in the premises, it is hereby:
DONE AND ORDERED as follows:
1. The Defendant belatedly disclosed Frank Ramos as an expert witness in this matter in
violation of the Court’s Uniform Trial Order.
2. Pursuant to the Court’s Uniform Trial Order, expert witnesses were to be disclosed prior to
February 3, 2023. In violation of this Order, the Defendant disclosed Mr. Ramos for the first time on
May 15, 2023. The nature of Mr Ramos proposed expertise and testimony is such that he could and
should have been previously disclosed; failing to do so would result in prejudice and potential delay.
3. Mr. Ramos shall not be permitted to provide any testimony whatsoever in relation to this
matter.
4. Accordingly, the Motion is GRANTED.
Page 1 of 2
Case Number: CACE21021868
DONE AND ORDERED in Chambers at Broward County, Florida on 21st day of July, 2023.
CACE21021868 07-21-2023 8:55 AM
Hon. Shari Africk Olefson
CIRCUIT COURT JUDGE
Electronically Signed by Shari Africk Olefson
Copies Furnished To:
Autumn Page , E-mail : Autumn@Marangeslaw.com
Autumn R. Page , E-mail : autumn@marangeslaw.com
Christopher J Maranges , E-mail : tere@marangeslaw.com
Christopher J Maranges , E-mail : pleadings@marangeslaw.com
Christopher J Maranges , E-mail : maritza@marangeslaw.com
Christopher J. Maranges , E-mail : chris@marangeslaw.com
Colleen A. Maranges , E-mail : colleen@marangeslaw.com
John W. Salmon , E-mail service@sd-adr.com
Robert N Heath Jr , E-mail : robert@robertheathlaw.com
Robert N Heath Jr , E-mail : admin@robertheathlaw.com
Verhonda Williams-Darrell , E-mail : upciceservice09@universalproperty.com
Verhonda Williams-Darrell , E-mail : er(0502@universalproperty.com
Verhonda Williams-Darrell , E-mail : vw1115@universalproperty.com
Page 2 of 2
EXHIBIT “B”
Filing # 167674556 E-Filed 02/28/2023 09:56:47 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA
CASE NUMBER: 2020-CA-3035
CIVIL DIVISION: 22
JEAN TOUSSAINT & MAGDALENE TOUSSAINT,
Plaintiff,
VS.
UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY,
Defendant.
/
UNIFORM TRIAL ORDER
(Division 22 - Revised January 26, 2023)
As this case is at issue and can be set for trial, the Court ORDERS as follows:
1 FAMILIARITY WITH THIS ORDER, DIVISION PROCEDURES, AND
OTHER STANDING ORDERS AND GUIDELINES. Counsel and pro se (unrepresented)
parties shall read this order and all procedures specific to the division in which this case is
pending, become familiar with their content, and comply with all requirements of this
Order, Division Procedures, Administrative Order No. 2012-03-01, Guidelines for Counsel
Regarding Compulsory Medical Examinations, and Amended Ninth Judicial Circuit
Courtroom Decorum Policy. All of these materials, and more, are available on the division
judge’s individual page under https://ninthcircuit.org.
2. REFERRAL TO MEDIATION; DEADLINE. This case is referred to
mediation. The parties shall immediately confer in person or by telephone and agree on a
mediator and a date for mediation. Plaintiff's counsel shall submit a proposed Mediation
Order to the Court within 10 days of the date of this Order. Court-ordered mediation shall
be completed before the Pretrial Conference.
3 TRIAL DATE. This case is set for a Jury Trial during the three (3) week
Trial docket beginning at 9:00 a.m. on February 26, 2024, in Courtroom SC of the Judge
Jon B. Morgan Osceola County Courthouse, 2 Courthouse Square, Kissimmee, Florida
34741.
The length of time currently estimated for Trial is TBD.
4 PRETRIAL CONFERENCE. Lead Trial Counsel and any pro se parties
shall attend a Pretrial Conference on January 17, 2024, at 9:45 a.m., in Courtroom SC of
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the Judge Jon B. Morgan Osceola County Courthouse, 2 Courthouse Square, Kissimmee,
Florida 34741. Counsel and any party(ies) who want to appear via communication
technology must comply with all requirements of Florida Rule of General Practice and
Judicial Administration 2.530. Failure to file a timely motion under Rule 2.530 will require
personal appearance at the Pretrial Conference.
5 EXPERT WITNESSES; DISCLOSURE; DEADLINES; TESTS:
EXAMINATIONS; EXPERIMENTS; AND LIMITATION AT TRIAL.
(a) No less than 90 days before the Pretrial Conference, all Plaintiffs
shall disclose all expert witnesses, including treating experts, that they actually, in
good faith, intend to call at Trial.
(b) Within 15 days of the Plaintiffs disclosure of experts, all
Defendants shall disclose all expert witnesses that they actually, in good faith,
intend to call at Trial.
(c) As used herein, “disclose” means furnishing in writing: (i) the
expert’s name, business address, and telephone number, (ii) the expert’s curriculum
vitae or qualifications, (iii) the expert’s medical specialty or field of expertise and
whether the expert is a treating physician or retained physician (if applicable), (iv)
a statement of the specific subjects about which the expert will testify and offer
opinions, (v) the party(ies) against whom the expert will be called to testify. Any
changes in an expert’s opinion, or changes in the basis of the expert’s opinion, must
be disclosed to all parties no less than 45 days before the Pretrial Conference.
(d) Untimely disclosed experts will be permitted to be listed as
witnesses only by filed, written stipulation of all parties or by leave of court for
good cause shown.
(e) Parties disclosing expert(s) shall, simultaneously with the
disclosure, provide opposing counsel three (3) proposed deposition dates for each
expert disclosed. Within five (5) business days of receipt of an expert disclosure,
opposing counsel shall either select one of the proposed deposition dates provided
or request additional dates. If requested, new deposition dates shall be provided to
opposing counsel within five (5) days of the request. The party receiving the
alternate dates shall select one of the dates provided within five (5) days of the
receipt thereof. The parties shall attend ex parte or short matters before the
undersigned within 10 days of the expert disclosure if the parties are unable to
schedule the disclosed expert’s deposition.
() All depositions of expert witnesses must be completed before the
date of the Pretrial Conference.
(g) All out-of-court testing, experiments, or physical or mental
examinations by experts must be completed before the expert’s deposition unless
the Court orders otherwise for good cause shown.
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(h) Experts will be made available for deposition by the party retaining
them without necessity of subpoena.
@) The Court may limit the number of experts at Trial.
6 EXCHANGE OF WITNESS LISTS AND EVIDENCE SCHEDULES. No
less than 45 days before the Pretrial Conference, attorneys and pro se parties must serve to
all parties, but not file, the following:
(a) A list of all witnesses, including potential impeachment and rebuttal
witnesses, who may testify at Trial. The list must provide the name, address, and
telephone number for each witness listed and shall specify whether the witness is a
liability, damage, expert, rebuttal, or impeachment witness.
(b) A schedule of all exhibits, including depositions, that the party may
offer at Trial, lettered sequentially. Exhibits must be described with specificity.
For example, descriptors like “all medical records” are insufficient.
7 ADDITIONAL REQUIREMENTS BEFORE PRETRIAL
CONFERENCE.
(a) No less than 30 days before the Pretrial Conference, each party shall
serve designations of the depositions that they intend to offer at Trial. No less than
20 days before the Pretrial Conference, the parties shall serve counter (or
“fairness”) designations. Disputes over deposition designations must be heard by
the Court no less than five (5) business days before the first day of Trial. If the
parties cannot resolve disputes over deposition designations and no hearing time
can be coordinated, the parties must, no less than five (5) business days before the
first day of Trial, submit both a properly marked copy of the transcript(s) and a
proposed order that identifies both the designated pages and line numbers and the
objections that must be ruled on by the Court.
(b) No less than 30 days before the Pretrial Conference, each party shall
serve proposed jury instructions and verdict forms.
(c) No less than 15 days before the Pretrial Conference, lead counsel
and pro se parties, if any, shall meet either in person or by video. Live or video
attendance at this meeting by Lead Trial Counsel and pro se parties is mandatory.
Plaintiff's attorney (or if Plaintiff is pro se, Defendant’s attorney) shall arrange a
mutually agreeable time, date, and place for this meeting and, if the meeting is to
occur by video, shall also arrange the video conference and provide the information
to all participants.
At the meeting the attorneys and any pro se parties must:
1 Discuss and attempt to settle the case;
2. Produce all documents to be offered at Trial. Exhibits must
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be Bates stamped in any case involving more than 50
exhibits;
Examine and initial every exhibit to be produced by the
opposing party(ies) at Trial. The parties shall agree on those
exhibits that will be admitted as joint exhibits and those that
can be admitted without objection. The parties shall then
specify in writing all objections to the remaining exhibits.
“Exhibit Schedules” shall then be prepared to reflect these
separate categories of exhibits for each party’s exhibits. The
Exhibit Schedules for each party must be attached to the
Joint Pretrial Statement required below. All objections
omitted from the Exhibit Schedules are waived;
Review all opposing parties’ witness lists. Witness lists for
each party shall be attached to the Joint Pretrial Statement
described below;
Identify, discuss, and stipulate to all facts requiring no proof
at Trial;
Discuss, clarify, and frame all issues of fact to be tried;
Identify all legal, procedural, or evidentiary issues to be
decided before or during Trial;
All possible evidentiary stipulations;
Agree upon and draft a concise statement of the case to be
read by the Court at the beginning of voir dire;
10. Discuss all proposed jury instructions and verdict forms.
The jury instructions to be discussed must cover voir dire
through closing, including the instructions on the law to be
read to the jury before opening statements.! The parties shall
prepare the following:
1 All agreed Jury Instructions, including Supreme
Court instructions for voir dire, instructions before
opening, instructions before closing argument and
instruction following closing arguments;
il All disputed jury instructions, identifying on each the
name of the party who proposed the disputed
instruction and the phase of the Trial for which the
' See Standard Jury Instructions — Civil Cases (available at https://www.floridabar.org/rules/florida-standard-
ury-instructions/).
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instruction is proposed;
iii. The above versions of Jury Instructions shall include
a cover page reflecting the style of the case, an
appropriate title, and the instructions in paragraph
form, without Jury Instruction numbers, headers, or
brackets. Instructions shall be 14-point, Times New
Roman font and double spaced. Pages shall be
numbered; and
lv. Electronic and hard copies of the proposed jury
instructions and verdict form(s) shall be provided to
the Court at or before the Pretrial Conference.
Electronic copies shall be submitted in Microsoft
Word format;
11 Discuss and attempt to agree on any other matters that would
contribute to a more orderly and expeditious Trial (e.g.
copies in lieu of originals, witnesses out of turn, etc.); and,
12 Discuss and exchange all demonstrative aids, including
presentations board, models, pictures, video or computer
presentations, reenactments, or animations.
8 JOINT PRETRIAL STATEMENT. No less than 10 days before the Pretrial
Conference, Plaintiff's attorney (or Defendant’s attorney, if Plaintiff is pro se) shall serve
a “Proposed Joint Pretrial Statement” reflecting all agreements and disputes as to the
matters listed below. The Parties shall immediately thereafter attempt to resolve any
disputes in the Proposed Joint Pretrial Statement. A Joint Pretrial Statement addressing the
matters described below shall then be prepared, filed, and served no less than five (5) days
before the Pretrial Conference. The original shall be filed with the Clerk and one hard copy
shall be delivered to the judge no later than five (5) business days before the Pretrial
Conference.
(a) The Joint Pretrial Statement shall contain the following:
1 A statement of the case to be read to the jury at the beginning
of voir dire;
A statement of admitted facts that may be read at Trial as a
stipulation of counsel;
Identification of the issues of fact to be tried;
Identification of all unresolved issues of law, procedure, or
evidence;
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Each party’s witness list;
Each party’s schedule of exhibits with objections;
All stipulations on evidentiary matters, with specification of
the applicable matters to which the stipulation applies (i.e.
authenticity, hearsay exceptions, etc.);
The number of peremptory challenges;
The number of jurors requested for the venire panel;
10. A realistic, good faith estimate of the number of days
required for Trial;
11 The specific category of damages, including attorneys’ fees,
claimed by each party and the amount of damages sought in
each category by each party;
12 Designation of Lead Trial Counsel. No change of Lead Trial
Counsel may be made without leave of the Court if the
change would disrupt the Trial schedule;
13 A list of all outstanding motions and, as to each motion
listed, either the date and time for hearing the motion or a
statement that the motion has been waived or withdrawn or
is moot; and,
14. Identification of the specific matters about which the parties
will ask the Court to take Judicial Notice under sections
90.201 and 90.202, Florida Statutes, with notation of all
objections or agreements as to each by opposing counsel.
(b) If the Parties are unable to agree on the contents of the Joint Pretrial
Statement, the differing views must be set forth therein.
9. DISCOVERY CUT-OFF DEADLINE. Discovery closes on the day before
the Pretrial Conference unless extended by Court order for good cause shown. All
depositions and CME reports must be completed; answers to interrogatories, responses to
request to produce, and timely responses to requests for admissions must be served by this
date. Joint Stipulations to extend discovery without Court order do not alter the discovery
cut-off.
10. MOTIONS CUT-OFF DEADLINE.
(a) All motions other than motions in limine, including summary
judgment motions, motions for judgment on the pleadings, discovery motions, and
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Daubert motions, must be filed and heard before the date of the Pretrial Conference.
Late-filed motions may be summarily denied.
(b) Motions in limine, motions to exclude witnesses or evidence, or
motions directed to the conduct of the Trial must be filed and served before the
Pretrial Conference. Motions in limine may not be scheduled for a hearing unless
they contain a certification that counsel have complied with Administrative Order
2012-03-01 and have made a good faith attempt to resolve the matter without Court
action. Notices of hearing on motions in limine must identify the specific issues
that remain in dispute after counsel have conferred. Motions in limine must be
scheduled and heard no later than one week before the beginning of the Trial period.
Absent good cause shown, no motions in limine will be heard during the Trial
period. Parties and counsel must also comply with any additional, division-specific
requirements concerning motions in limine.
(c) No motions may be scheduled for hearing unless they contain the
certificate of compliance required by Administrative Order 2012-03-01.
ll. TRIAL BRIEFS. Trial Briefs are optional. If a Trial Briefis submitted, the
original must be filed and a copy shall be delivered to Chambers no less than five (5)
business days before commencement of Trial. Highlighted copies of primary legal
authorities must accompany the chambers copy, and identical copies of the Trial Brief and
highlighted authorities must be served to all opposing counsel and pro se parties.
12. NOTIFICATION OF SETTLEMENT. The parties must immediately
notify the division judicial assistant by email to 22osceola@ninthcircuit.org upon
settlement of the case. Also, within five (5) business days of settlement the parties must
file a Notice of Settlement signed by all counsel and unrepresented parties. Noncompliance
with this paragraph will result in the case remaining on the docket as well as the possible
imposition of other sanctions. The case will not be removed from the Pretrial Conference
and Trial dockets until all documents necessary for closure of the case have been filed with
the Clerk and a copy delivered to chambers.
13. MODIFICATION OF ORDER FOR GOOD CAUSE. The provisions of
this Order may be modified only by Court order in accordance with applicable law.
14. SANCTIONS. Failure to attend the meeting of attorneys required in
paragraph 7(c), the Pretrial Conference, or Trial, or failure to otherwise strictly comply
with the requirements of this Order, may result in the imposition of sanctions, including
but not limited to contempt, dismissal, default, striking of pleadings, exclusion of evidence,
assessment of fees or costs, or other sanctions.
15. AUDIO/VISUAL. Requests for audio or visual equipment must be made
at least 48 hours in advance of Trial. For assistance, see the Court’s web site,
www.ninthcircuit.org under Services, then Technology Services, then Audio/Visual.
16. SUMMARY OF DEADLINES. A Summary of Deadlines is attached to
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this Order for scheduling purpose only. In the event of any conflict between this Order and
the Summary of Deadlines, this Order controls.
17. INCONSISTENCY WITH CASE MANAGEMENT ORDERS. In the
event of conflict between this Order and the provisions of any Case Management Order
entered or to be entered in this case, the last-filed Case Management Order controls.
SO ORDERED on , 20
Trin
‘signed by YOUNG,09:56:25
‘9n 62282028 TH ONRA6Gq
IAS Win 2020 CA 009035 Cl
Circuit Judge
CERTIFICATE OF SERVICE
I certify that the foregoing was filed with the Clerk of the Court this by using the
Florida Courts E-Filing Portal System. Accordingly, a copy of the foregoing is being
served on this day to all attorney(s)/interested parties identified on the ePortal Electronic
Service List, via transmission of Notices of Electronic Filing generated by the ePortal
System.
/s/Vikki Cooper
Judicial Assistant
If you are a person with a disability who needs any accommodation in
order to participate in this proceeding, you are entitled, at no cost to you,
to the provision of certain assistance. Please contact the ADA
Coordinator, Court Administration, Osceola County Courthouse, 2
Courthouse Square, Suite 6300, Kissimmee, Florida, (407) 742-2417, at
least 7 days before your scheduled Court appearance, or immediately
upon receiving this notification if the time before the scheduled
appearance is less than 7 days; if you are hearing or voice impaired, call
711.
Page 8 of 9
SUMMARY OF DEADLINES
Mediation — 10 days from date of Uniform Order to agree on mediator and
mediation date; complete mediation before the Pretrial Conference (§2)
Plaintiff's Expert Witness disclosure with deposition dates — 90 days before
the Pretrial Conference (§5a; 5c; Se)
Defendant's Expert Witness disclosure with deposition dates — within 15
days of Plaintiff's disclosure (§5b; Sc; 5e)
Exchange of Witness Lists and Exhibit Schedules — 45 days before the
Pretrial Conference (§6)
Deposition Designations — no later than 30 days before the Pretrial
Conference. Counter Designations - no later than 20 days before the Pretrial
Conference (§7a)
Meeting of Attorneys and Pro Se Parties — 15 days before the Pretrial
Conference (§7c)
All Motions (including Daubert motions) other than motions in limine —
filed and heard before the Pretrial Conference (§ 10a)
Motions in Limine — filed before the Pretrial Conference and heard no later
than one (1) week before the first day of the Trial period (§10b)
Jury Instructions and Verdict Forms — exchanged no later than 30 days
before the Pretrial Conference (§7b) and presented to the Judge at or before
the Pretrial Conference (§7(c)10(iv))
Joint Pretrial Statement signed by attorneys/pro se parties — no less than five
(5) days before the Pretrial Conference (§8)
Discovery Cut-Off— one (1) day before the Pretrial Conference (§9)
Trial briefs (optional) — five (5) working days before the Trial (§11)
NOTE: In the event of any conflict between this Summary of Deadlines and the Uniform
Trial Order, the Uniform Trial Order controls.
Page 9 of 9
Preview
Filing # 188879610 E-Filed 01/02/2024 08:37:32 AM IN THE CIRCUIT COURT OF THE 9™ JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2020-CA003035 JEAN TOUSSAINT and MAGDALENE TOUSSAINT, Plaintiffs(s), vs. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, a Florida corporation, / PLAINTIFFS’ MOTION IN LIMINE AND/OR TO STRIKE DEFENDANT’S (UNDISCLOSED) FACT AND EXPERT WITNESSES, AND (UNDISCLOSED) EXHIBITS Pursuant to the applicable rules of this Court, Plaintiffs, JEAN TOUSSAINT and MAGDALENE TOUSSAINT, move for an Order in Limine from this Court precluding Defendant, Universal Property & Casualty Insurance Company, from eliciting or seeking to elicit testimony from any fact witness and expert witness, or from relying on any exhibits, not timely disclosed. The grounds for this Motion are: I Introduction To date, Defendant has failed to disclose its fact witness and expert witness lists, or exhibit list, let alone do so in compliance with this Court’s pre-trial order. As a result of Defendant’s failure to identify any expert witness, Plaintiffs’ counsel has not been able to able to depose any of Defendant’s potential experts (to the extent it intended on ever trying to name any) prior to the Pretrial Conference, resulting in prejudice and delay to the Plaintiffs. Accordingly, this Court should preclude Defendant from eliciting or seeking to elicit testimony at trial from any fact witness and expert witness not timely disclosed, or relying on exhibits not timely disclosed. Il. Memorandum of Law A pretrial order directing the parties to exchange the names of witnesses requires a listing or notification of all witnesses that the parties reasonably foresee will be called to testify, whether for substantive, corroborative, impeachment or rebuttal purposes. Binger v. King Pest Control, 401 So. 2d 1310, 1313 (Fla. 1981). Where a party has failed to disclose its witness in accordance with the trial court order, the testimony of that witness may be excluded at the trial court’s discretion. HSBC Bank Mortg. Corp. (USA) v. Lees, 201 So. 3d 699, 702 (Fla. 4" DCA. 2016). In making this determination, the Court should consider whether the ability to cure the prejudice by the late or non-existent disclosure or, similarly, the independent knowledge of existence of witness, the calling party's possible intentional, or bad faith, noncompliance with pretrial order, and possible disruption of orderly and efficient trial of case. Binger, 401 So. 2d at 1314. Til. The Court Should Preclude Defendant from Offering the Testimony of Fact Witnesses and Expert Witnesses Defendant failed to disclose any fact witness and expert witness to testify regarding this matter. The Court’s Trial Order required Defendant to disclose its expert witnesses by November 3, 2023! and fact witnesses and exhibits by December 1, 2023, respectively. See Uniform Trial Order attached as Exhibit “A.” Defendant has made no attempt to address its non-compliance with counsel or the Court. Therefore, the Court should preclude any fact witnesses and expert witnesses? from testifying on behalf of Defendant, and Defendant from utilizing any undisclosed ' Per the Uniform Trial Order, Defendant’s deadline to disclose its expert witnesses was 15 days after Plaintiffs disclosed their expert witnesses. Plaintiffs disclosed their expert witnesses on October 19, 2023, therefore, Defendant’s deadline to disclose its expert witnesses fell on November 3, 2023. 2 Similarly, in Nicholson v. Universal, Broward Circuit Court Judge Shari Olefson granted Plaintiffs’ Motion to Strike Defendant’s expert witness for failure to timely disclose its expert witness per a trial order. See Nicholson v. Universal, Order [granting] Plaintiffs’ Motion to Strike Defendant’s Witness, dated July 21, 2023, attached as Exhibit “B.” exhibits at trial. WHEREFORE, Plaintiffs respectfully request that this Honorable Court should enter an Order precluding Defendant eliciting or seeking to elicit testimony at trial from any fact witness and expert witness not timely disclosed, from utilizing any exhibits not timely disclosed, and to enter any further relief it deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email this 24 day of January, 2023 to: Kristen H. McMullen, Esq. and Tracy T. Segal, Esq.; AKERMAN LLP; 777 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401; Telephone: (561) 653- 5000; Facsimile: (561) 659-6313; Email: Kristen.mcmullen@akerman.com. tracy.segal@akerman.com, and elisa.waites@akerman.com. Sherman Law, P.A. Counsel for Plaintiffs 18801 NE 21“ Avenue Miami, FL 33179 Direct: (305) 494-6345 Fax: (305) 397-1725 By: /s/ Ryan Sherman RYAN H. SHERMAN, Esq. Florida Bar No.: 686271 GEORGE ORELLANA, Esq Florida Bar No.: 113051 EserviceSLPA@gmail.com EXHIBIT “A” Filing # 178006744 E-Filed 07/21/2023 07:26:16 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. CACE21021868 DIVISION: 25 JUDGE: Olefson, Shari Africk (25) Charles Nicholson, et al Plaintiff(s) / Petitioner(s) Vv. Universal Property & Casualty Insurance Company Defendant(s) / Respondent(s) / ORDER STRIKING DEFENDANT'S WITNESS, FRANK RAMOS, FROM TESTIFYING IN THIS MATTER THIS CAUSE having come before the Court on July 19, 2023, on Plaintiffs’ Motion to Strike Defendant’s Witness, Frank Ramos, the Court having been advised of an agreement by counsels, and being otherwise advised in the premises, it is hereby: DONE AND ORDERED as follows: 1. The Defendant belatedly disclosed Frank Ramos as an expert witness in this matter in violation of the Court’s Uniform Trial Order. 2. Pursuant to the Court’s Uniform Trial Order, expert witnesses were to be disclosed prior to February 3, 2023. In violation of this Order, the Defendant disclosed Mr. Ramos for the first time on May 15, 2023. The nature of Mr Ramos proposed expertise and testimony is such that he could and should have been previously disclosed; failing to do so would result in prejudice and potential delay. 3. Mr. Ramos shall not be permitted to provide any testimony whatsoever in relation to this matter. 4. Accordingly, the Motion is GRANTED. Page 1 of 2 Case Number: CACE21021868 DONE AND ORDERED in Chambers at Broward County, Florida on 21st day of July, 2023. CACE21021868 07-21-2023 8:55 AM Hon. Shari Africk Olefson CIRCUIT COURT JUDGE Electronically Signed by Shari Africk Olefson Copies Furnished To: Autumn Page , E-mail : Autumn@Marangeslaw.com Autumn R. Page , E-mail : autumn@marangeslaw.com Christopher J Maranges , E-mail : tere@marangeslaw.com Christopher J Maranges , E-mail : pleadings@marangeslaw.com Christopher J Maranges , E-mail : maritza@marangeslaw.com Christopher J. Maranges , E-mail : chris@marangeslaw.com Colleen A. Maranges , E-mail : colleen@marangeslaw.com John W. Salmon , E-mail service@sd-adr.com Robert N Heath Jr , E-mail : robert@robertheathlaw.com Robert N Heath Jr , E-mail : admin@robertheathlaw.com Verhonda Williams-Darrell , E-mail : upciceservice09@universalproperty.com Verhonda Williams-Darrell , E-mail : er(0502@universalproperty.com Verhonda Williams-Darrell , E-mail : vw1115@universalproperty.com Page 2 of 2 EXHIBIT “B” Filing # 167674556 E-Filed 02/28/2023 09:56:47 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NUMBER: 2020-CA-3035 CIVIL DIVISION: 22 JEAN TOUSSAINT & MAGDALENE TOUSSAINT, Plaintiff, VS. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. / UNIFORM TRIAL ORDER (Division 22 - Revised January 26, 2023) As this case is at issue and can be set for trial, the Court ORDERS as follows: 1 FAMILIARITY WITH THIS ORDER, DIVISION PROCEDURES, AND OTHER STANDING ORDERS AND GUIDELINES. Counsel and pro se (unrepresented) parties shall read this order and all procedures specific to the division in which this case is pending, become familiar with their content, and comply with all requirements of this Order, Division Procedures, Administrative Order No. 2012-03-01, Guidelines for Counsel Regarding Compulsory Medical Examinations, and Amended Ninth Judicial Circuit Courtroom Decorum Policy. All of these materials, and more, are available on the division judge’s individual page under https://ninthcircuit.org. 2. REFERRAL TO MEDIATION; DEADLINE. This case is referred to mediation. The parties shall immediately confer in person or by telephone and agree on a mediator and a date for mediation. Plaintiff's counsel shall submit a proposed Mediation Order to the Court within 10 days of the date of this Order. Court-ordered mediation shall be completed before the Pretrial Conference. 3 TRIAL DATE. This case is set for a Jury Trial during the three (3) week Trial docket beginning at 9:00 a.m. on February 26, 2024, in Courtroom SC of the Judge Jon B. Morgan Osceola County Courthouse, 2 Courthouse Square, Kissimmee, Florida 34741. The length of time currently estimated for Trial is TBD. 4 PRETRIAL CONFERENCE. Lead Trial Counsel and any pro se parties shall attend a Pretrial Conference on January 17, 2024, at 9:45 a.m., in Courtroom SC of Page | of 9 the Judge Jon B. Morgan Osceola County Courthouse, 2 Courthouse Square, Kissimmee, Florida 34741. Counsel and any party(ies) who want to appear via communication technology must comply with all requirements of Florida Rule of General Practice and Judicial Administration 2.530. Failure to file a timely motion under Rule 2.530 will require personal appearance at the Pretrial Conference. 5 EXPERT WITNESSES; DISCLOSURE; DEADLINES; TESTS: EXAMINATIONS; EXPERIMENTS; AND LIMITATION AT TRIAL. (a) No less than 90 days before the Pretrial Conference, all Plaintiffs shall disclose all expert witnesses, including treating experts, that they actually, in good faith, intend to call at Trial. (b) Within 15 days of the Plaintiffs disclosure of experts, all Defendants shall disclose all expert witnesses that they actually, in good faith, intend to call at Trial. (c) As used herein, “disclose” means furnishing in writing: (i) the expert’s name, business address, and telephone number, (ii) the expert’s curriculum vitae or qualifications, (iii) the expert’s medical specialty or field of expertise and whether the expert is a treating physician or retained physician (if applicable), (iv) a statement of the specific subjects about which the expert will testify and offer opinions, (v) the party(ies) against whom the expert will be called to testify. Any changes in an expert’s opinion, or changes in the basis of the expert’s opinion, must be disclosed to all parties no less than 45 days before the Pretrial Conference. (d) Untimely disclosed experts will be permitted to be listed as witnesses only by filed, written stipulation of all parties or by leave of court for good cause shown. (e) Parties disclosing expert(s) shall, simultaneously with the disclosure, provide opposing counsel three (3) proposed deposition dates for each expert disclosed. Within five (5) business days of receipt of an expert disclosure, opposing counsel shall either select one of the proposed deposition dates provided or request additional dates. If requested, new deposition dates shall be provided to opposing counsel within five (5) days of the request. The party receiving the alternate dates shall select one of the dates provided within five (5) days of the receipt thereof. The parties shall attend ex parte or short matters before the undersigned within 10 days of the expert disclosure if the parties are unable to schedule the disclosed expert’s deposition. () All depositions of expert witnesses must be completed before the date of the Pretrial Conference. (g) All out-of-court testing, experiments, or physical or mental examinations by experts must be completed before the expert’s deposition unless the Court orders otherwise for good cause shown. Page 2 of 9 (h) Experts will be made available for deposition by the party retaining them without necessity of subpoena. @) The Court may limit the number of experts at Trial. 6 EXCHANGE OF WITNESS LISTS AND EVIDENCE SCHEDULES. No less than 45 days before the Pretrial Conference, attorneys and pro se parties must serve to all parties, but not file, the following: (a) A list of all witnesses, including potential impeachment and rebuttal witnesses, who may testify at Trial. The list must provide the name, address, and telephone number for each witness listed and shall specify whether the witness is a liability, damage, expert, rebuttal, or impeachment witness. (b) A schedule of all exhibits, including depositions, that the party may offer at Trial, lettered sequentially. Exhibits must be described with specificity. For example, descriptors like “all medical records” are insufficient. 7 ADDITIONAL REQUIREMENTS BEFORE PRETRIAL CONFERENCE. (a) No less than 30 days before the Pretrial Conference, each party shall serve designations of the depositions that they intend to offer at Trial. No less than 20 days before the Pretrial Conference, the parties shall serve counter (or “fairness”) designations. Disputes over deposition designations must be heard by the Court no less than five (5) business days before the first day of Trial. If the parties cannot resolve disputes over deposition designations and no hearing time can be coordinated, the parties must, no less than five (5) business days before the first day of Trial, submit both a properly marked copy of the transcript(s) and a proposed order that identifies both the designated pages and line numbers and the objections that must be ruled on by the Court. (b) No less than 30 days before the Pretrial Conference, each party shall serve proposed jury instructions and verdict forms. (c) No less than 15 days before the Pretrial Conference, lead counsel and pro se parties, if any, shall meet either in person or by video. Live or video attendance at this meeting by Lead Trial Counsel and pro se parties is mandatory. Plaintiff's attorney (or if Plaintiff is pro se, Defendant’s attorney) shall arrange a mutually agreeable time, date, and place for this meeting and, if the meeting is to occur by video, shall also arrange the video conference and provide the information to all participants. At the meeting the attorneys and any pro se parties must: 1 Discuss and attempt to settle the case; 2. Produce all documents to be offered at Trial. Exhibits must Page 3 of 9 be Bates stamped in any case involving more than 50 exhibits; Examine and initial every exhibit to be produced by the opposing party(ies) at Trial. The parties shall agree on those exhibits that will be admitted as joint exhibits and those that can be admitted without objection. The parties shall then specify in writing all objections to the remaining exhibits. “Exhibit Schedules” shall then be prepared to reflect these separate categories of exhibits for each party’s exhibits. The Exhibit Schedules for each party must be attached to the Joint Pretrial Statement required below. All objections omitted from the Exhibit Schedules are waived; Review all opposing parties’ witness lists. Witness lists for each party shall be attached to the Joint Pretrial Statement described below; Identify, discuss, and stipulate to all facts requiring no proof at Trial; Discuss, clarify, and frame all issues of fact to be tried; Identify all legal, procedural, or evidentiary issues to be decided before or during Trial; All possible evidentiary stipulations; Agree upon and draft a concise statement of the case to be read by the Court at the beginning of voir dire; 10. Discuss all proposed jury instructions and verdict forms. The jury instructions to be discussed must cover voir dire through closing, including the instructions on the law to be read to the jury before opening statements.! The parties shall prepare the following: 1 All agreed Jury Instructions, including Supreme Court instructions for voir dire, instructions before opening, instructions before closing argument and instruction following closing arguments; il All disputed jury instructions, identifying on each the name of the party who proposed the disputed instruction and the phase of the Trial for which the ' See Standard Jury Instructions — Civil Cases (available at https://www.floridabar.org/rules/florida-standard- ury-instructions/). Page 4 of 9 instruction is proposed; iii. The above versions of Jury Instructions shall include a cover page reflecting the style of the case, an appropriate title, and the instructions in paragraph form, without Jury Instruction numbers, headers, or brackets. Instructions shall be 14-point, Times New Roman font and double spaced. Pages shall be numbered; and lv. Electronic and hard copies of the proposed jury instructions and verdict form(s) shall be provided to the Court at or before the Pretrial Conference. Electronic copies shall be submitted in Microsoft Word format; 11 Discuss and attempt to agree on any other matters that would contribute to a more orderly and expeditious Trial (e.g. copies in lieu of originals, witnesses out of turn, etc.); and, 12 Discuss and exchange all demonstrative aids, including presentations board, models, pictures, video or computer presentations, reenactments, or animations. 8 JOINT PRETRIAL STATEMENT. No less than 10 days before the Pretrial Conference, Plaintiff's attorney (or Defendant’s attorney, if Plaintiff is pro se) shall serve a “Proposed Joint Pretrial Statement” reflecting all agreements and disputes as to the matters listed below. The Parties shall immediately thereafter attempt to resolve any disputes in the Proposed Joint Pretrial Statement. A Joint Pretrial Statement addressing the matters described below shall then be prepared, filed, and served no less than five (5) days before the Pretrial Conference. The original shall be filed with the Clerk and one hard copy shall be delivered to the judge no later than five (5) business days before the Pretrial Conference. (a) The Joint Pretrial Statement shall contain the following: 1 A statement of the case to be read to the jury at the beginning of voir dire; A statement of admitted facts that may be read at Trial as a stipulation of counsel; Identification of the issues of fact to be tried; Identification of all unresolved issues of law, procedure, or evidence; Page 5 of 9 Each party’s witness list; Each party’s schedule of exhibits with objections; All stipulations on evidentiary matters, with specification of the applicable matters to which the stipulation applies (i.e. authenticity, hearsay exceptions, etc.); The number of peremptory challenges; The number of jurors requested for the venire panel; 10. A realistic, good faith estimate of the number of days required for Trial; 11 The specific category of damages, including attorneys’ fees, claimed by each party and the amount of damages sought in each category by each party; 12 Designation of Lead Trial Counsel. No change of Lead Trial Counsel may be made without leave of the Court if the change would disrupt the Trial schedule; 13 A list of all outstanding motions and, as to each motion listed, either the date and time for hearing the motion or a statement that the motion has been waived or withdrawn or is moot; and, 14. Identification of the specific matters about which the parties will ask the Court to take Judicial Notice under sections 90.201 and 90.202, Florida Statutes, with notation of all objections or agreements as to each by opposing counsel. (b) If the Parties are unable to agree on the contents of the Joint Pretrial Statement, the differing views must be set forth therein. 9. DISCOVERY CUT-OFF DEADLINE. Discovery closes on the day before the Pretrial Conference unless extended by Court order for good cause shown. All depositions and CME reports must be completed; answers to interrogatories, responses to request to produce, and timely responses to requests for admissions must be served by this date. Joint Stipulations to extend discovery without Court order do not alter the discovery cut-off. 10. MOTIONS CUT-OFF DEADLINE. (a) All motions other than motions in limine, including summary judgment motions, motions for judgment on the pleadings, discovery motions, and Page 6 of 9 Daubert motions, must be filed and heard before the date of the Pretrial Conference. Late-filed motions may be summarily denied. (b) Motions in limine, motions to exclude witnesses or evidence, or motions directed to the conduct of the Trial must be filed and served before the Pretrial Conference. Motions in limine may not be scheduled for a hearing unless they contain a certification that counsel have complied with Administrative Order 2012-03-01 and have made a good faith attempt to resolve the matter without Court action. Notices of hearing on motions in limine must identify the specific issues that remain in dispute after counsel have conferred. Motions in limine must be scheduled and heard no later than one week before the beginning of the Trial period. Absent good cause shown, no motions in limine will be heard during the Trial period. Parties and counsel must also comply with any additional, division-specific requirements concerning motions in limine. (c) No motions may be scheduled for hearing unless they contain the certificate of compliance required by Administrative Order 2012-03-01. ll. TRIAL BRIEFS. Trial Briefs are optional. If a Trial Briefis submitted, the original must be filed and a copy shall be delivered to Chambers no less than five (5) business days before commencement of Trial. Highlighted copies of primary legal authorities must accompany the chambers copy, and identical copies of the Trial Brief and highlighted authorities must be served to all opposing counsel and pro se parties. 12. NOTIFICATION OF SETTLEMENT. The parties must immediately notify the division judicial assistant by email to 22osceola@ninthcircuit.org upon settlement of the case. Also, within five (5) business days of settlement the parties must file a Notice of Settlement signed by all counsel and unrepresented parties. Noncompliance with this paragraph will result in the case remaining on the docket as well as the possible imposition of other sanctions. The case will not be removed from the Pretrial Conference and Trial dockets until all documents necessary for closure of the case have been filed with the Clerk and a copy delivered to chambers. 13. MODIFICATION OF ORDER FOR GOOD CAUSE. The provisions of this Order may be modified only by Court order in accordance with applicable law. 14. SANCTIONS. Failure to attend the meeting of attorneys required in paragraph 7(c), the Pretrial Conference, or Trial, or failure to otherwise strictly comply with the requirements of this Order, may result in the imposition of sanctions, including but not limited to contempt, dismissal, default, striking of pleadings, exclusion of evidence, assessment of fees or costs, or other sanctions. 15. AUDIO/VISUAL. Requests for audio or visual equipment must be made at least 48 hours in advance of Trial. For assistance, see the Court’s web site, www.ninthcircuit.org under Services, then Technology Services, then Audio/Visual. 16. SUMMARY OF DEADLINES. A Summary of Deadlines is attached to Page 7 of 9 this Order for scheduling purpose only. In the event of any conflict between this Order and the Summary of Deadlines, this Order controls. 17. INCONSISTENCY WITH CASE MANAGEMENT ORDERS. In the event of conflict between this Order and the provisions of any Case Management Order entered or to be entered in this case, the last-filed Case Management Order controls. SO ORDERED on , 20 Trin ‘signed by YOUNG,09:56:25 ‘9n 62282028 TH ONRA6Gq IAS Win 2020 CA 009035 Cl Circuit Judge CERTIFICATE OF SERVICE I certify that the foregoing was filed with the Clerk of the Court this by using the Florida Courts E-Filing Portal System. Accordingly, a copy of the foregoing is being served on this day to all attorney(s)/interested parties identified on the ePortal Electronic Service List, via transmission of Notices of Electronic Filing generated by the ePortal System. /s/Vikki Cooper Judicial Assistant If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the ADA Coordinator, Court Administration, Osceola County Courthouse, 2 Courthouse Square, Suite 6300, Kissimmee, Florida, (407) 742-2417, at least 7 days before your scheduled Court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711. Page 8 of 9 SUMMARY OF DEADLINES Mediation — 10 days from date of Uniform Order to agree on mediator and mediation date; complete mediation before the Pretrial Conference (§2) Plaintiff's Expert Witness disclosure with deposition dates — 90 days before the Pretrial Conference (§5a; 5c; Se) Defendant's Expert Witness disclosure with deposition dates — within 15 days of Plaintiff's disclosure (§5b; Sc; 5e) Exchange of Witness Lists and Exhibit Schedules — 45 days before the Pretrial Conference (§6) Deposition Designations — no later than 30 days before the Pretrial Conference. Counter Designations - no later than 20 days before the Pretrial Conference (§7a) Meeting of Attorneys and Pro Se Parties — 15 days before the Pretrial Conference (§7c) All Motions (including Daubert motions) other than motions in limine — filed and heard before the Pretrial Conference (§ 10a) Motions in Limine — filed before the Pretrial Conference and heard no later than one (1) week before the first day of the Trial period (§10b) Jury Instructions and Verdict Forms — exchanged no later than 30 days before the Pretrial Conference (§7b) and presented to the Judge at or before the Pretrial Conference (§7(c)10(iv)) Joint Pretrial Statement signed by attorneys/pro se parties — no less than five (5) days before the Pretrial Conference (§8) Discovery Cut-Off— one (1) day before the Pretrial Conference (§9) Trial briefs (optional) — five (5) working days before the Trial (§11) NOTE: In the event of any conflict between this Summary of Deadlines and the Uniform Trial Order, the Uniform Trial Order controls. 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