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Alicea v. Mallard

United States District Court, M.D. Florida, Orlando Division

June 26, 2018

JOHN CRUZ ALICEA, Plaintiff,
v.
BRIAN MALLARD, JEFFREY BROUGH and HOUSE OF BLUES ORLANDO RESTAURANT CORP., Defendants.

          BENCH ORDER

          GREGORY A. PRESNELL, JUDGE

         This Matter comes before the Court on the Defendants' Motion to Strike the Plaintiff's Untimely Objections (Doc. 82), and the Plaintiff's Notice of Filing Objections (Doc. 85).

         In the Joint Pretrial Statement (Doc. 51), the Plaintiff objected to Chief Petty Officer David Amet's deposition being read to the jury, based on a failure to show he could not be produced at trial. Additionally, in the section on the Plaintiff's Designations, the Plaintiff itemized numerous objections to various questions and answers in the Amet Deposition. The Defendants filed a Motion to Strike the Plaintiff's Objections, in which they argued that the Plaintiff had waived all untimely form-related objections. Because there were inconsistencies between the designations made by the Defendants and the portions of the transcript the Defendants brought up in their Motion's arguments, the Court ordered the Defendants to provide updated designations. Doc. 83. The Court also ordered the Plaintiff to file any objections that remained after the Defendants filed their updated designations. The Plaintiff did file an updated list of objections. However, rather than merely filing a list of objections that remained following changes to the Defendants' designations, the Plaintiff filed a list that included many new objections.

         Any such new objections that the Plaintiff made on the eve of trial are considered waived and will be overruled. However, new competence objections made by the Plaintiff in his most recent filing are not considered waived if they simply added to a previous objection about Amet's ability to testify on a particular matter as a mere lay witness. Amet was not disclosed as an expert witness, nor has he been qualified as one by the Defendants. See Fed. R. Civ. P. 26(a)(2); Fed.R.Evid. 702, 703, and 705. As many of the Plaintiffs objections indicate, if Amet is a lay witness, he is not permitted to offer opinion testimony that is based on specialized knowledge within the scope of Rule 702. Fed.R.Evid. 701. The Court will sustain the valid objections to improper testimony based on specialized knowledge in those instances where the objections were preserved as of the time of the Joint Pretrial Statement, but will overrule those that were not made until the eve of trial in Document 85-1.

         The Court's rulings on the Plaintiffs most recent objections list are as follows:

         • Amet's commendations are not relevant to his testimony.

o Page 13, Lines 23-25 > SUSTAINED

         ■ The Plaintiff objected to lines 13-25, but only lines 23-25 are designated.

o Page 14, Lines 1-6 > SUSTAINED

         • New objections and objections as to form are considered waived.

o Page 16, lines 22-25 > OVERRULED
o Page 26, lines 1-7 > OVERRULED
o Page 27, lines 1-25 > OVERRULED
o Page 43, lines 16-25 > OVERRULED
o Page 44, lines 1-25 > OVERRULED
o Page 45, lines 1-21 > OVERRULED
o Page 48, lines 1-19 > OVERRULED
o Page 50, lines 6-25 > OVERRULED
o Page 51, lines 17-25 > OVERRULED
o Page 52, lines 17-25 > OVERRULED
o Page 53, lines 1-20 > OVERRULED
o Pages 55, lines 1-25 > OVERRULED
o Page 58, lines 1-25 > OVERRULED
o Page 60, lines 1-25 > OVERRULED
o Page 64, lines 3-25 > ...

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