IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
MIDDLE
DISTRICT
OF
FLORIDA
TAMPA
DIVISION
TOUCAN
PARTNERS,
LLC,
a
Florida
limitedliability
company,
NARCONON
SPRING
HILL,
INC.,
a
Florida
corporation,CASE
NO:
8:11-cv-1368-T-27TGW
Plaintiffs,
vs.
HERNANDO
COUNTY,
FLORIDA,
a
political
subdivision
of
the
State
of
Florida,
Defendant.
DEFENDANT'S
RESPONSE
IN
OPPOSITIONTO
PLAINTFFS'OTION
IN
LIMINE
TOPRECLUDE
REFERENCES
TO
INCIDENTS
AT
OTHER
REHABILIATION
FACILITIES,
AND
SUPPORTING
MEMORANDUM
OF
LAW
Defendant
HERNANDO
COUNTY,
by
and
through
undersigned
counsel,
moves
thisCourt
to
deny
Plaintiffs*
Motion
for
entry
of
an
Orderprecluding
Defendant
from
mentioningdeaths
that
occurred
at
another
Narconon
tacilities
Defendant
would
show
thatthe
matter
is
relevantintheinstant
case
and
this
relevance
is
notsubstantiallyoutweighed
by
any
prejudicetoPlaintiffs.
In
support
thereof,
Defendant
offers
the
followingMemorandum
of
Law.
MEMORANDUM
OF
LAW
I.
Introduction
and
FactualBackground
Uponheing
prevented
from
expanding
PlaintilTs'rug
and
alcohol
rehabilitation
facility,
Plaintift's
filed
suit
alleging
violations
of
the
I'ederalHousing
Act
and
of
the
Americans
With
Disabilities
Act,
for
whichPlaintiffs
are
seeking
monetary
damages,
in
part,
on
a
theory
of
lost
profits.
[Doc
I]
This
theory
requires
Plaintiffs
to
make
a
showing
thatthe
facility
wouldhave
been
ableto
operateassuccessfully
as
Plaintiffs
intended.
Thedeposition
testimony
taken
in
the
instant
case
shows
that
therewasbad
publicity
in
thewake
of
thethree
deaths
that
occurred
in
the
Narcononfacility
in
Oklahoma.
Mr.
Mitchelltestified
that
he
was
aware
of
the
deaths
like
most
of
the
country;
that
there
was
bad
publicity
for
Narcononasaresult
of
the
incidents
at
Narconon
Arrowhead:that
bad
publicity
for
Narconon
obviously
could
havean
effect
on...us
being
that
we
provide
aNarconon
program;
and
that
therewasa
drop
in
enrollment
at
thetimethe
articles
cameout.
[Exhibit
A.
Depo.
of
Mitchell.
p.
68.
Ins.
5-25:
p.
69,
lns.
1-10,
p.
70.
Ins,
1-13].
Additionally,
Mr.
Morgenstern
testified
that
the
reputation
of
Narcononcould
have
an
effect
on
Narconon
Spring
Hill
and
that
hewasaware
of
the
deaths
that
occurred
in
Oklahoma.
[Exhibit
B,
Depo.
of
Morgensterndated
Oct.
11,
2012,
p.
28.
Ins.
19-23;
p.
31.
Ins.
1-8].
While
Narconon
Arrowhead
and
Plaintiffs'acility
are
separate
entities,
they
areboth
Narconon
facilities
using
the
same
methodologies.
[Exhibit
C
—
Excerpt
from
Narconon
International
Website]
Plaintiff's'acility
uses
the
same
Narconon
methodology
as
NarcononArrowhead,
including
the
mainstay
of
the
Narconon
Program...the
NarcononNew
Life
Detoxification
Program
[Exhibit
D
—
Fxcerpt
from
Suncoast
Rehabilitation
CenterWebsite;
Exhibit
E
—
Excerpt
from
Narconon
Arrowhead].
Additionally,
aside
from
the
testimonyfrom
Plaintiffs'itnesses
showingthat
the
deaths
were
highly
publicized,
a
simple
Google'earch
of
Narconon
will
show
that
a
the
deaths
caused
widespread
bad
publicity.
[Exhibit
F—
Google
Search
for
Narconon
].
Narconon
advertises
on
the
internet
and
Google
and
pays
to
be
promoted
through
severalonline
directories
[Depo.
ol
Mitchell.
p
63.
Ins
6-25.
p.
64,
Ins.
1-3].
Accordingly,
it
is
beyondevident
that
therewerethreedeaths
in
one
year
in
a
Narcononfacility
using
the
very
samemethodologies
as
Plaintiffs'nd
that
this
caused
bad
publicity.
II.
Standard
of
Review
ThisCourt
has
broad
authonty
to
control
the
admission
of
evidence
duringtrial,
Chrysler
International
Corp
v
Chetnal,
280
F.
3d
1358(11th
Cir.
2002).
Error
is
created
when
admission
of
evidence
affectsa
substantial
right
of
the
party.
Fed.
R.
Evid.
103(a).
Amotion
in
limine
isthe
vehicle
to
exclude
irrelevant
evidenceor
unduly
prejudicial
or
confusing
relevant
evidence.
See
Hodgetts
v
Cr(y
of
Venice,
2011
WL
2192819,
1
(M.D.
Fla.
June
6,
2011).
I
I
I.
Discussion
Rule
401t
Relevance
and
Rule
402t
Admissibility
-
Evidence
is
relevant
if
it
has
any
tendency
to
makea
fact
more
or
lessprobable
than
it
would
be
without
the
evidence
and
the
fact
is
of
consequence
in
determining
the
action:
relevant
evidence
is
admissible
unless
providedotherwiseby
statutory
authority
Fed
R.Evid.
401,
402.
Plaintiffs
must
establish
thatthe
facility
wouldhave
successfully
attracted
theamount
of
participants
that
Plaintiffsexpected
in
order
to
provetheir
damages.Plaintiffs
will
meet
this
burden
by
offering
evidence
that
theprogram
is
successful
and
widely
accepted
Accordingly,
it
is
absolutelyrelevant
to,
and
a
critical
portion
of,
Defendant's
defense
in
thismatter
to
be
able
to
set
forth
that
the
facility's
reputation
was
affected
by
the
deaths
at
the
similar
Narconon
t'acility
and
the
bad
publicity
that
came
as
a
result,thereby
hindering
Plaintiffs'bihty
to
attract
customers.
That
a
Narconon
facility
had
three
deaths
in
one
year
which
caused
bad
publicity
is
certainlytrue,
as
made
clear
above,
and
relevant,as
Plaintiffs
witnesses
have
testified
that
bad
publicity
can
affect
reputation
and
reputation
can
affect
attractingpotentialparticipants.
