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Purpose of a Motion in Limine to Exclude Evidence

Posted by David Adelstein on April 16, 2015
Appeal, Evidence / Comments Off on Purpose of a Motion in Limine to Exclude Evidence

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In order to avoid prejudicial or irrelevant evidence from being introduced to the jury by the adverse party, a party will file a motion in limine to exclude this evidence. “Generally, the purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.” Buy-Low Save Centers, Inc. v. Glinert, 547 So.2d 1283, 1284 (Fla. 4th DCA 1989). Stated differently: “The purpose of a motion in limine is to exclude irrelevant and immaterial matters, or to exclude evidence when its probative value is outweighed by the danger of unfair prejudice.” Devoe v. Western Auto Supply Co., 537 So.2d 188, 189 (Fla. 2d DCA 1989) (internal citation omitted).

There are times the basis of an appeal stems from the trial court granting or denying a motion in limine. If a trial court grants a motion in limine, this means the trial court is excluding evidence a party otherwise wants to introduce. If a trial court denies a motion in limine, this means the trial court is allowing evidence to be introduced that an adverse party contends is irrelevant or prejudicial. “The standard of review of a trial court’s ruling on a motion in limine is abuse of discretion.” Aarmada Protection Systems 2000, Inc. v. Yandell, 73 So.3d 893, 898 (Fla. 4th DCA 2011).

If a party violates a court’s order granting a motion in limine, the court could declare a mistrial and order a new trial. See Azriel v. La Marca, 722 So.2d 952 (Fla. 3d DCA 1998); Fischman, M.D. v. Suen, M.D., 672 So.2d 644 (Fla. 4th DCA 1996). For instance, if a trial court grants a motion in limine and excludes certain evidence or testimony, and the adverse party disregards the court’s order and introduces that evidence or testimony, the court could declare a mistrial and order a new trial upon the jury returning a verdict in favor of the adverse party.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Make Sure Your Expert’s Opinion is Reliable

Posted by David Adelstein on February 15, 2018
Uncategorized / Comments Off on Make Sure Your Expert’s Opinion is Reliable

I use expert witnesses in many cases.  Many.  Experts are an important part of cases, particularly complicated disputes where an expert opinion is absolutely warranted. 

But, as I have discussed in prior articles, an expert’s opinion needs to have a foundation of reliability, which is governed by the Daubert standard.  Without ensuring that an expert’s opinion is reliable, then parties will hire the Joe Blows of the world, pay them a minimal dollar amount, for an outrageous, unsupported, and unqualified opinion.  This, of course, provides no value.  Hence, the Daubert standard or test “requires that ‘[t]he testimony is based upon sufficient facts or data’; ‘[t]he testimony is the product of reliable principles and methods’; and ‘[t]he witness has applied the principles and methods reliably to the facts of the case.‘” Sanchez v. Body & Soul Retreat, LLC, 43 Fla. L. Weekly, 43 Fla. L. Weekly D359b (Fla. 4th DCA 2018) (quoting Fla. Stat. s. 90.702).  If the opinion is not reliable, it is not admissible.

In Sanchez, the defendants sought to use an expert doctor.  However, the doctor was going to render an opinion based on a twenty minute exam of the plaintiff.  He reviewed no pre-incident photographs of the plaintiff before an important event at-issue to determine the plaintiff’s pre-incident condition.  He further made improper assumptions and inferences based on his review of medical records; however, his assumptions were not factually supported by the medical records, i.e., they were speculative.  

Based on this, the plaintiff moved in limine to preclude this doctor’s expert testimony and the trial court granted the motion in limine, which was affirmed by the appellate court.  This meant the doctor was NOT able to render an expert opinion at trial, i.e., the defendant had no expert opinion to counter the plaintiff’s expert opinion.  His opinion did not pass Daubert’s test–the opinion was NOT based on any reliable methodology and was further based on factually unsupported assumptions.

If you are going to use an expert, make sure the expert is prepared and has the relevant information to render a reliable opinion.  This doesn’t mean the expert needs to review everything under the sun.  But, this does mean the expert needs to be in a position to render an opinion based on factually supported assumptions and reliable methodology. Paying an expert the bare minimum hoping that an expert can render an opinion on an elaborate or complicated issue can come back and backfire, as the defendant in this case learned. The expert may very well be the key to your claim or defense so take the time to ensure the opinion passes the smell test!!

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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“Other Products” Evidence to Support Alternate Causation Theory

Posted by David Adelstein on May 30, 2016
Appeal, Evidence, Standard of Review / Comments Off on “Other Products” Evidence to Support Alternate Causation Theory

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The recent case of Arizona Chemical Company, LLC v. Mohawk Industries, Inc., 41 Fla. L. Weekly D1213a (Fla. 1st DCA 2016) is a case I discussed regarding lost profit damages. Check out that article here. But, this case also raised an interesting trial and appellate issue involving “other products” evidence to support an alternate causation argument, such as when a specific product or manufactured component fails.

This case involved a manufacturer of a specific brand of carpet suing the manufacturer of resin that was used in manufacturing the failed carpet brand. The carpet manufacturer claimed that the resin failure caused an increase in warranty claims and consumer complaints.

Applicable here is the carpet manufacturer’s pre-trial motion in limine to prevent the resin manufacturer from introducing evidence about other brands manufactured by the carpet manufacturer (that did not use the resin) that contemporaneously failed and also resulted in spikes in consumer claims. In particular, the resin manufacturer intended to introduce evidence at trial of consumer claim spikes related to three other brands of carpet manufactured by the carpet manufacturer, although none of the other brands used the resin. The resin manufacturer claimed that such contemporaneous failures indicate that something other than the resin caused the failure in all of the brands. An alternate causation argument. Makes sense, right? The trial court, however, granted the carpet manufacturer’s motion in limine since the other products were dissimilar to the failed carpet brand at-issue (as none of the other brands used the resin) precluding this “other products” evidence from being introduced during trial.

Post-trial, the resin manufacturer appealed, among other issues, the trial court’s granting of the motion in limine. The First District held that the relevance of “other products” evidence is reviewed under an abuse of discretion standard of appellate review. In reviewing this issue under this abuse of discretion standard of review, the First District affirmed the trial court’s preclusion of this “other products” evidence finding that such evidence was NOT relevant:

 

Generally, evidence of “possible explanations” for the plaintiff’s harm other than the defendant’s negligence is relevant and must be admitted. To establish the relevance of particular alternative-causation evidence, however, the defendant must provide a competent evidentiary link between the plaintiff’s harm and the defendant’s theory. This threshold requirement exists as a function of the relevance rule, even though the defendant does not carry a quantifiable burden of proof as to the alternative explanation.

Here, Arizona’s [resin manufactuer] basic argument is that the excluded evidence was relevant to rebut Mohawk’s [carpet manufacturer] point that the timing of Unibond’s [specific failed carpet brand at-issue] claims spike indicates that Arizona’s resin was the cause of the Unibond defects. The excluded evidence established that other products manufactured in the same Mohawk facility without Arizona’s resin experienced claims spikes at approximately the same time as Unibond. When these two points are considered outside the context of the remaining evidence, they make a compelling case for an abuse of the trial court’s discretion. Of course, context is key. When the trial court’s decision is viewed in the context in which Mohawk used the evidence of Unibond’s claims spike and the limitations of the evidence concerning other products’ claims spikes, the basis for the manner in which the trial court exercised its discretion in this case is understandable.

***

Arizona argues that the evidence of other products’ claims spikes rebuts Mohawk’s causation theory because this evidence bears on the likelihood that other factors caused the Unibond claims spike. The specific factors Arizona suggests are poor quality control and lack of adherence to manufacturing protocol. However, there is no evidentiary basis in the record for supplying the connection between contemporaneous claims spikes of the four product lines and these factors. The record supports a theory that there may have been some general quality-control failings at the facility, but Arizona has not identified any evidence to substantiate its conclusion that problems with quality control explained the defects in the non-Unibond products. In fact, evidence Arizona submitted in opposition to Mohawk’s motion indicates that Mohawk traced the causes of the defects in the other products to design flaws and choices of raw materials, not quality-control or procedural failures.

Without a more direct connection between the other products’ failures and Unibond’s failures, the evidence of the other products’ failures showed causation, or rebutted Mohawk’s causation theory, only to the extent that it showed Mohawk has a propensity to produce bad carpet. Introducing evidence for this purpose is improper. In light of these considerations, we find no abuse of discretion in the trial court’s decision to exclude the other-product evidence as legally irrelevant to the issue of liability.

Arizona Chemical Company, LLC, supra (internal quotations omitted).

When relying on “other products” evidence to support an alternate causation theory, it is important to connect the dots and create the evidentiary link between the other products’ failures and the failure at-issue. In other words, you need to create the evidentiary link supporting an alternative theory of causation by relying on the “other products” evidence.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein on November 05, 2015
Evidence / Comments Off on Recipient of Trial Court’s Error Needs to Prove Harmless Error

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I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant).

Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling the appellant (losing party) to a new trial.

In Maniglia v. Carpenter, 40 Fla. L. Weekly D2485c (Fla. 3d DCA 2015), the plaintiff sued the defendant over injuries sustained in a car accident.   Less than a month after the accident, the plaintiff was involved in a golf tournament where he got inebriated and drove the golf car into the street, collided with a car, fell off the golf cart, and then got into a physical altercation with the police.   The defendant naturally wanted to introduce these events during trial for multiple reasons. First, the defendant wanted to establish that the plaintiff never told his treating chiropractor about these events, which could have affected the plaintiff’s credibility to the jury. And, second, these other events could have served as a jury instruction relating to other intervening causes for the plaintiff’s injuries.

The trial court granted a motion in limine finding that these events were unfairly prejudicial to the plaintiff. As a result, the jury never heard the true nature of the events and a verdict was entered against the defendant.

On appeal, the appellate court held that it was error for the trial court to exclude this evidence since the evidence was probative and was not outweighed by the danger of unfair prejudice. Based on this error, the appellate court held that the plaintiff was required to prove that the error was harmless – there was no reasonable possibility that the error contributed to the jury’s verdict. The plaintiff, however, was unable to meet this burden meaning that the defendant was entitled to a new trial.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Admissions Against Party Opponent (Hearsay Exception) Does Not Need to be Based on Party’s Personal Knowledge

Posted by David Adelstein on April 25, 2015
Uncategorized / Comments Off on Admissions Against Party Opponent (Hearsay Exception) Does Not Need to be Based on Party’s Personal Knowledge

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An admission against a party opponent is an important exception to the hearsay rule. I previously discussed this hearsay exception in detail because it is an exception that routinely applies in order to admit testimony / evidence at trial.

Recently, the case of Jones v. Alayon, 2015 WL 1545005 (Fla. 4th DCA 2015) discussed the applicability of this exception. This case was a wrongful death action brought by the decedent’s daughter as personal representative of the estate stemming from an automobile accident caused by an off-duty police officer that originally fled the scene of the accident. The jury awarded the plaintiff less damages than the plaintiff desired and the plaintiff appealed. One issue, amongst others, that the plaintiff argued on appeal was that the trial court abused its discretion by allowing hearsay evidence to come in that the decedent’s current wife spent decedent’s money on drugs and alcohol.

Prior to trial, the defense moved in limine to prevent evidence coming in at trial that the defendant was an off-duty police officer arguing that the prejudice of this evidence outweighs its probative value. The plaintiff argued that this evidence was relevant to damages and proffered testimony from the decedent’s current wife that she was traumatized to learn that the accident was caused by an off-duty police officer that originally fled the scene. The trial court denied the motion in limine and allowed this evidence to come in.

During trial, the defense cross-examined the decedent’s daughter (personal representative of the estate) and asked whether she ever told her sister (decedent’s other daughter that resided out of state) that decedent’s current wife spent money on drugs and alcohol. The decedent’s daughter testified no.   Then, during the defense’s case, the defense read into evidence, over a hearsay objection by the plaintiff, a portion of the deposition transcript from the sister where she testified that decedent’s daughter (personal representative of estate) told her that decedent’s current wife did not work and was spending decedent’s money on drugs and alcohol.   The plaintiff objected that this statement constituted hearsay within hearsay in that (a) the sister was relaying something said to her by decadent’s daughter (hearsay) and (b) what decedent’s daughter told her sister was obviously told to her by the decedent (hearsay) and decedent’s daughter had no personal knowledge of this fact. The defense countered that this testimony was admissible as an admission by a party opponent. The trial court agreed with the defense and overruled the plaintiff’s objection since decedent’s daughter was the personal representative of the decedent’s estate (the party plaintiff) and, thus, the statement fell within the admission by a party opponent exception to the hearsay rule.

 

Admission Against Party Opponent — Hearsay Exception

 

 

An admission against a party opponent is set forth in Florida Statute s. 90.803(18):

Admissions.—A statement that is offered against a party and is:

(a) The party’s own statement in either an individual or a representative capacity;

(b) A statement of which the party has manifested an adoption or belief in its truth….

An admission, however, does not need to be based on the party’s personal or firsthand knowledge. Jones, supra, at *3 citing Charles W. Ehrhardt, Florida Evidence, s. 803.18 (2014 ed.) (admission against party opponent does not need to be based on firsthand knowledge because when person makes relevant admissions or speaks against their interests it may be assumed they would not do so without an adequate investigation).

In this case, decedent’s daughter (personal representative of the estate) made a statement to her sister that decedent’s current wife spent decedent’s money on drugs and alcohol. Decedent’s daughter, however, apparently did not have any personal or firsthand knowledge about this fact. But, as the Fourth District expressed: “That it [statement] is based upon what someone else may have told Jones [decedent’s daughter – personal representative of estate] is unimportant, in that she would not make the statement without some investigation or indicia of reliability.” Jones, supra, at *3.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Introducing Character Evidence of Prior Bad Acts in a Civil Case

Posted by David Adelstein on June 07, 2015
Evidence / Comments Off on Introducing Character Evidence of Prior Bad Acts in a Civil Case

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Relevant evidence is evidence tending to prove or disprove a material fact.” Fla.Stat. s. 90.401. I have previously discussed that evidence needs to be relevant for it to be admissible but that not all relevant evidence is admissible (e.g., if the probative value of that evidence is outweighed by unfair prejudice, etc., then the relevant evidence is not admissible).

When is evidence of a person’s character ever relevant (such as the character of a plaintiff or defendant) to prove or disprove a material fact in a civil case? Generally speaking, it is not relevant and, even if it was relevant, the probative value is probably outweighed by the evidence’s unfair prejudice.

In the civil context, really, the only time character evidence would be relevant if it falls under an exception in Florida Statute s. 90.404(2)(a) that provides:

“Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”

This exception refers to what is known as “prior acts” or “prior bad acts” evidence. But, when would prior bad acts come into play in a civil case? Specifically, when would introducing evidence of prior wrongs or bad acts by a party be admissible in a civil case to prove “proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake?” And, even if an argument could be made for the relevancy of character evidence, wouldn’t the probative value of this evidence be outweighed by the evidence’s unfair prejudice?  

Here is an example where character evidence was improperly admitted warranting a new trial for a defendant in a civil case.

In Jacobs v. Atlantic Coast Refining, Inc., 2015 WL 2214140 (Fla. 4th DCA 2015), a man hired his girlfriend as a bookkeeper for his company and authorized her to sign checks on behalf of his company. Apparently, the girlfriend wrote hundreds of thousands of dollars in checks to herself or to pay off her credit card.   After the couple broke up, the man argued his former girlfriend embezzled company funds and sued his former girlfriend for claims including civil theft and conversion. The man wanted to introduce evidence reflecting that this wasn’t the first time his former girlfriend embezzled a company’s funds–prior acts evidence. During the former girlfriend’s first marriage, she worked for her husband’s medical office. After the divorce, the ex-husband filed a post-dissolution motion regarding her embezzlement of his company’s funds that was later resolved. In other words, based on the allegations in a motion, she was accused of doing the same thing to her ex-husband’s company that the man asserted she did to his company. The man wanted to introduce the post-dissolution motion in his trial under Florida Statute s. 90.404 to show his former girlfriend’s “knowledge, preparation, plan and identity.” Although the former girlfriend moved in limine to exclude this evidence, the judge denied the motion, and the former girlfriend was questioned about the contents of the post-dissolution motion involving her former husband. The jury entered a verdict for the man against his former girlfriend that was reduced to a judgment by the trial court and the former girlfriend appealed.

The appeal was focused on the trial court allowing the man’s counsel to ask the former girlfriend questions about the contents of the post-dissolution motion. The only reason to do so was to show that the former girlfriend had the bad character and propensity to commit the embezzlement in this case based on her prior bad acts. Remember, character evidence is inadmissible solely to prove bad character or propensity.  The appellate court held that questioning the former girlfriend about the post-dissolution motion amounted to improper character evidence. Further, the appellate court held that even if this evidence was relevant by falling within an exception under Florida Statute s. 90.404(2)(a) to prove more than just bad character or propensity, any probative value of this evidence was outweighed by unfair prejudice deeming this evidence inadmissible.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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