M.B. v. WENDY’S INTERNATIONAL, LLC

              UNITED STATES DISTRICT COURT                              
                MIDDLE DISTRICT OF FLORIDA                              
                      TAMPA DIVISION                                    

M.B.,                                                                     

   Plaintiff,                                                           


v.                                       Case No.: 8:24-cv-1116-TPB-TGW   

WENDY’S INTERNATIONAL, LLC,                                               

   Defendant.                                                           
____________________________________/                                     

                ORDER ON PRETRIAL MOTIONS                               

   This matter is before the Court on five different motions.  A jury trial is set to 
begin on October 27, 2025.  These motions include: “Plaintiff’s Daubert Motion to 
Exclude the Opinions and Testimony of Defendant’s Expert Dr. Eric Kaplan” (Doc. 
122), “Defendant’s Rule 412 Motion to Admit Evidence of Plaintiff’s Past Sexual 
Behavior” (Doc. 128), “Defendant’s Motions in Limine” (Doc. 129), “Plaintiff M.B.’s 
Motion in Limine” (Doc. 130), and “Plaintiff’s Amended Motion to Strike” (Doc. 139).  
Defendant filed a response to Plaintiff’s Daubert motion as to Dr. Kaplan on July 
31, 2025 (Doc. 123), and the Court heard argument on the motions at a pretrial 
conference on September 18, 2025.  (Doc. 143).  Upon review of the motions, 
response, argument of counsel, the court file, and the record, the Court finds as 
follows:                                                                  
                         Background                                     
   Defendant Wendy’s International, LLC operates a multinational fast food 
restaurant chain specializing in hamburgers and French fries.  Plaintiff M.B. was a 
minor female employee of a Wendy’s restaurant in Lutz, Florida.  Plaintiff alleges 
that from September until December 2023, she was subjected to sexual harassment 
at Wendy’s by Jamaya Clemmons, a 25-year-old male Wendy’s employee.  Plaintiff 

testified in deposition to several non-consensual sexual encounters with Clemmons 
at work.  Plaintiff and Clemmons also began having sex outside of the workplace in 
late September or early October.  Plaintiff ended her relationship with Clemmons 
on or about November 29, 2023.  In early December 2023, the restaurant’s general 
manager, Stenly Angervil, learned of the situation and discussed the matter with 
Plaintiff.  Plaintiff alleges that Angervil fired her at that meeting, after which she 

ran away from home for five days.                                         
   Plaintiff filed this lawsuit asserting claims for sexual harassment and hostile 
work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, 
et seq., along with related state law intentional tort and negligence claims.  The 
Court eliminated some of Plaintiff’s claims on motions to dismiss and motions for 
summary judgment.  Plaintiff’s remaining claims are for hostile work environment 
under Title VII, negligent supervision under Florida law, and gross negligence 

under Florida law.                                                        
   The parties have filed various pretrial motions relating to experts and other 
evidentiary issues, which the Court addresses below.                      
                           Analysis                                     
Plaintiff’s Motion to Exclude Testimony by Eric Kaplan (Doc. 122)         
   Defense expert Eric Kaplan, M.D., a psychiatrist, will opine that, contrary to 
the opinion of Plaintiff’s expert Dr. Elig, Plaintiff does not suffer from PTSD arising 
from her experience with Clemmons at Wendy’s.  Kaplan will opine that she suffers 
from other conditions caused by factors that largely pre-date her employment at 

Wendy’s.  Plaintiff moves to exclude Kaplan’s opinions, arguing that he is 
unqualified to offer them and that his testimony fails the requirements for expert 
testimony imposed by Fed. R. Evid. 702.                                   
   Under Rule 702, an expert witness may testify in the form of an opinion if 
“(a) the expert's scientific, technical, or other specialized knowledge will help the 
trier of fact to understand the evidence or to determine a fact in issue; (b) the 

testimony is based on sufficient facts or data; (c) the testimony is the product of 
reliable principles and methods; and (d) the expert has reliably applied the 
principles and methods to the facts of the case.”  Fed. R. Evid. 702; see also Daubert 
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).  “The party offering the 
expert testimony bears the burden of establishing, by a preponderance of the 
evidence, the expert's qualification, reliability, and helpfulness.”  Payne v. C.R. 
Bard, Inc., 606 F. App’x 940, 942 (11th Cir. 2015) (citing United States v. Frazier, 

387 F.3d 1244, 1260 (11th Cir. 2004) (en banc)).                          
   Functioning as a gatekeeper, the district court plays an important role by 
ensuring that all expert testimony is reliable and relevant.  Rink v. Cheminova, 
Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).  Although Daubert references specific 
factors for the district court to consider when evaluating relevancy and reliability, 
the inquiry is a flexible one, focusing on the principles and methodology employed 
by the expert, not on the conclusions reached.  Chapman v. Procter & Gamble 
Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir. 2014); see also Hanna v. Ward Mfg., 
Inc., 723 F. App’x 647, 649-50 (11th Cir. 2018) (outlining the criteria for the 

admissibility of expert witness testimony).                               
   Essentially, the Court is simply asked to determine if the evidence “rests on a 
reliable foundation and is relevant.” Daubert, 509 U.S. at 597.  The Court also must 
remain mindful to not “supplant the adversary system or the role of the jury: 
vigorous cross-examination, presentation of contrary evidence, and careful 
instruction on the burden of proof are the traditional and appropriate means of 

attacking shaky but admissible evidence.”  Allison v. McGhan Med. Corp., 184 F.3d 
1300, 1311 (11th Cir. 1999) (quoting Daubert, 509 U.S. at 596).           
   Plaintiff argues that Dr. Kaplan is a general and forensic psychiatrist who is 
not “subspecialty trained” in adolescent or child psychiatry and has only limited 
experience in his clinical practice with adolescents who have suffered sexual 
trauma.  Plaintiff further argues that Dr. Kaplan is unqualified to administer a 
psychological test he used as part of his evaluation of Plaintiff, and that his testing 

methods were unreliable.                                                  
   The Court finds that Dr. Kaplan is sufficiently qualified and that his 
approach is sufficiently reliable to be admitted under Fed. R. Evid. 702.  As to 
qualifications, Dr. Kaplan is a board-certified psychiatrist with 35 years of 
experience treating adults and adolescents with a variety of conditions, including 
the conditions at issue here.  While expert qualifications in a general area do not 
necessarily qualify an expert to offer any specific opinion within the area, by the 
same token, specific training or certification in a particular subspecialty area (such 
as, here, adolescent psychiatry) is not necessarily required to offer opinions in that 

area.  See, e.g., McDowell v. Brown, 392 F.3d 1283, 1297 (11th Cir. 2004) (“The 
proffered physician need not be a specialist in the particular medical discipline to 
render expert testimony relating to that discipline.”) (quoting Gaydar v. Sociedad 
Instituto Gineco–Quirurgico y Planifacacion, 345 F.3d 15, 24 (1st Cir. 2003)).  
Moreover, “the standard for determining an expert's qualifications to testify on a 
given topic is not stringent.  So long as the witness is minimally qualified, 

objections to ‘the level of the expert’s expertise [go] to credibility and weight, not 
admissibility.’”  Hendrix v. Evenflo Co., 255 F.R.D. 568, 585 (N.D. Fla. 2009) 
(quoting Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 809 (3d Cir. 1997)), aff’d 
sub nom. Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183 (11th Cir. 2010).  
   Plaintiff relies on cases involving very different factual situations.  For 
example, she points to Lebron v. Sec’y of Fla. Dep’t of Children & Families, 772 F.3d 
1352, 1368 (11th Cir. 2014), which addressed a psychiatrist’s testimony on the 

incidence of drug use among all applicants for Temporary Assistance for Needy 
Families benefits, and Gilliam ex rel. Waldroup v. City of Prattville, 667 F. Supp. 2d 
1276, 1296 (M.D. Ala. 2009), rev’d in part sub nom. Estate of Gilliam ex rel. 
Waldroup v. City of Prattville, 639 F.3d 1041 (11th Cir. 2011), which addressed 
opinions of a forensic pathologist and internist as to cause of death in a case 
involving the use of a taser by police officers.  Plaintiff also cites Clarke v. Schofield, 
632 F. Supp. 2d 1350 (M.D. Ga. 2009), which involved testimony by an emergency 
room physician concerning the location and etiology of the decedent’s deep venous 
thrombosis (“DVT”), even though the physician had no qualification or training as a 

pathologist and admitted he must rely on other specialists such as radiologists to 
confirm the existence of DVT.  None of Plaintiff’s authorities suggests that Dr. 
Kaplan, as a general or forensic psychiatrist, is not qualified to offer opinions on 
diagnosis and etiology based on the symptoms reported by Plaintiff and other 
information presented here.                                               
   The Court further finds, by a preponderance of the evidence, that Dr. 

Kaplan’s methodology passes muster under Daubert and the reliability      
requirements of Rule 702.  Dr. Kaplan based his opinions on an examination of 
Plaintiff, including but not limited to an interview and psychological testing, and on 
his medical and psychiatric training and 35 of years of experience.  He also 
reviewed medical and other records, including records relating to previous 
treatment for emotional problems, and he reviewed depositions of Plaintiff, 
Clemmons, and Plaintiff’s parents.  He compared Plaintiff’s information to the 

diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders or 
DSM, a standard reference work published by the American Psychiatric      
Association.                                                              
   Plaintiff’s motion does not argue that Dr. Kaplan’s overall methodology was 
inappropriate.  Indeed, it mirrored the approach taken by Plaintiff’s own expert, Dr. 
Elig.  Instead, Plaintiff offers specific criticisms of how Dr. Kaplan performed 
various aspects of the evaluation and the conclusions he reached.  These criticisms 
go to the weight to be accorded to Dr. Kaplan’s testimony, not its admissibility.  
   The Court also finds that, contrary to Plaintiff’s argument, Dr. Kaplan was 

sufficiently qualified to administer the MMPI-2-RF psychological test he gave 
Plaintiff.   Scoring such tests is a matter typically within the expertise of 
psychologists rather than psychiatrists, but Dr. Kaplan has had training in using 
such tests and he did not score the results himself but sent them to the test’s 
creator for scoring and interpretation.                                   
   Plaintiff essentially invites the Court to review Dr. Kaplan’s testimony as 

reflected in his report and deposition in light of the literature Plaintiff cites and Dr. 
Elig’s contrary opinions and to conclude that Dr. Elig is right and Dr. Kaplan is 
wrong.  The Court declines to do so.  This is a classic battle of the experts for a jury 
to decide.  Plaintiff’s motion to exclude Dr. Kaplan’s testimony is denied.1   
Wendy’s Motion to Admit Evidence of Plaintiff’s Past Sexual Behavior      
(Doc. 128).                                                               
   Wendy’s moves for an order that evidence of Plaintiff’s past sexual behavior 
is admissible.  This evidence includes (1) sexual contact with Clemmons outside of 
Wendy’s, (2) sexual abuse suffered by Plaintiff as a child, and (3) later voluntary 
conduct with older men other than Clemmons.  Plaintiff agrees that evidence of 


1 Plaintiff’s motion also argues that Dr. Kaplan should be excluded from testifying on the 
ground that his expert report was insufficient and he failed to provide Plaintiff with copies 
of all materials he relied on.  The Court rejects Plaintiff’s argument that Dr. Kaplan’s 
testimony should be excluded on these grounds.  Among other things, much of the material 
Plaintiff argues Dr. Kaplan should have provided, such as medical records and deposition 
transcripts, appears likely to have been in Plaintiff’s possession.       
childhood sexual trauma is admissible, and Wendy’s motion is therefore granted as 
to this evidence.  That leaves for consideration the admissibility of evidence as to 
Plaintiff’s contacts with Clemmons and with other men prior to her relationship 

with Clemmons.                                                            
   As to Clemmons, Wendy’s argues that Plaintiff’s admitted voluntary sexual 
interactions with him, including sexually explicit text messages and sexual 
relations with him outside of the workplace, are relevant for the jury to consider 
when evaluating whether her workplace encounters with Clemmons were       
unwelcome and offensive or welcomed and voluntary.  Under Fed. R. Evid. 412, 

evidence of a victim’s sexual behavior may be admitted if its probative value 
substantially outweighs the danger of harm to the victim or unfair prejudice.  The 
Court finds that is the case here.  See e.g., Abousharkh v. Jenkins Nissan, Inc., No. 
8:20-cv-1036, 2021 WL 4243717, at *3 (M.D. Fla. Sept. 17, 2021) (holding that, even 
if Rule 412 applied in a sex discrimination case, the probative value of evidence of 
employee’s romantic relationship with supervisor substantially outweighed the 
dangers of harm or unfair prejudice); Gibbons v. Food Lion, Inc., No. 98-1197-CIV-

T-23F, 1999 WL 33226474, at *2-3 (M.D. Fla. Feb. 19, 1999) (finding in the context 
of a discovery dispute that plaintiff’s history of sexual relationships with other 
managerial employees was relevant to determine whether alleged harassing  
behavior was welcome).                                                    
   Wendy’s argues that evidence of Plaintiff’s sexual experience with older 
boyfriends prior to Clemmons is also relevant to Plaintiff’s claimed emotional 
distress damages.  Plaintiff’s expert Dr. Elig testified in deposition that Plaintiff 
suffers from PTSD as a result of her sexual experiences with Clemmons, based on 
the proposition that PTSD can result from sexual “violence” which includes 

“developmentally inappropriate experiences” even without physical violence or 
injury.  Dr. Elig opined that sex between a person under 18 and a person over 18 
would be “developmentally inappropriate” for the younger person.          
   Wendy’s contends that Plaintiff admitted to having a sexual relationship with 
at least one boyfriend when she was 16 and he was 18 or older.  This information 
would be relevant in cross-examining Dr. Elig as to this relationship and its impact 

on his opinions as to the cause of Plaintiff’s symptoms.  At the pretrial conference, 
however, Plaintiff argued that the previous boyfriend was in fact also under age 18 
at the time of Plaintiff’s relationship with him, and therefore under Dr. Elig’s view 
that relationship would not have been “developmentally inappropriate.”    
   Assuming that is Dr. Elig’s view, the Court nevertheless concludes that 
Wendy’s may cross-examine Dr. Elig regarding Plaintiff’s prior sexual relationships, 
regardless of the age of her partners at the time, assuming a good faith basis for the 

questions.  Wendy’s expert, Dr. Kaplan, has opined that the analysis of whether a 
relationship is “developmentally inappropriate” does not turn solely on whether the 
participants are under or over age 18.  Wendy’s therefore will be allowed to probe 
Dr. Elig’s position on cross-examination, and Plaintiff’s prior relationships are 
highly relevant on that score.  It is up to the jury to decide whether to accept Dr. 
Elig’s bright line rule or whether his failure to consider Plaintiff’s prior 
relationships undermines his opinion as to her condition and damages.  The 
relevance of this information in connection with evaluating the competing expert 
opinions greatly outweighs any of the dangers of unfair prejudice or confusing the 

issues.                                                                   
   Accordingly, Wendy’s may on cross-examination of Dr. Elig raise the issue of 
Plaintiff’s prior sexual relationships.  However, the information revealed to the jury 
will be limited to the fact of the sexual relationship, the time frame when it 
occurred, and the respective ages of Plaintiff and her romantic partner at the time.  
Further details concerning the relationship are unnecessary and would threaten to 

immerse the trial in wasteful discussion of irrelevancies.  Accordingly, Wendy’s 
motion on this issue is granted to the extent set forth above.            
Wendy’s Motion in Limine (Doc. 129)                                       
   Wendy’s motion in limine raises a number of discrete issues, addressed in 
turn below.                                                               
   Plaintiff’s Settlement with Clemmons                                 
   Plaintiff originally asserted a claim of battery against Clemmons in this 

lawsuit.  Plaintiff reached a settlement with Clemmons and entered a stipulated 
dismissal as to him.  (Doc. 54).  In his deposition, Clemmons testified that the 
settlement involved a payment by him of only $700.  Wendy’s argues the court 
should admit evidence of the settlement with Clemmons to show his bias.  As 
Wendy’s correctly argues, Federal Rule of Evidence 408 only prohibits settlement 
evidence to prove or disprove the validity or amount of the claim.  By the rule’s 
express terms, settlement evidence when used for another purpose, “such as proving 
a witness’s bias or prejudice,” is admissible.  Fed. R. Evid. 408(b).     
   Plaintiff’s position on this issue is set forth in her motion in limine, in which 

she argues the Court should exclude any mention of the Clemmons settlement by 
applying § 768.041(3), F.S.  That Florida statute provides that the fact that a 
defendant has been or released shall not be disclosed to the jury.  Plaintiff points to 
the Eleventh Circuit’s decision in Williams v. Arai Hirotake, Ltd., 931 F.2d 755 
(11th Cir. 1991), which she argues reversed a district court’s refusal to apply the 
statute in federal court.  Plaintiff concedes that William’s “factual posture was 

different” in that Williams involved the statute’s abrogation of the common lay rule 
“tying one settlement to all tortfeasors.”  Plaintiff argues that Williams 
nevertheless “demonstrates that federal courts give effect to § 768.041 and consider 
it an important bar into injecting settlement issues into related proceedings.” 
   Plaintiff’s argument ignores key differences in the subsections of § 768.041.  
Specifically, Plaintiff relies on subsection (3), an evidentiary rule that the jury 
should not hear evidence that one of the defendants has been released.  Williams 

involved only subsection (1), a substantive provision under which the release of one 
joint tortfeasor does not release the others.  As a recent decision of the Southern 
District explains, the evidentiary rule of § 768.041(3) is not substantive and does 
not apply in federal court.  See Benavides v. Tesla, Inc., No. 21-CV-21940, 2025 WL 
1795031, at *5-6 (S.D. Fla. June 30, 2025).  Instead, Rule 408 applies.  Id.  Under 
Rule 408, “a party may use evidence of a settlement to show bias or otherwise 
impeach a witness's credibility.”  Id., at *5.  Williams, therefore, does not apply.  
The Court finds the reasoning of Benevides persuasive and adopts it here.  The 
Court also does not find persuasive Plaintiff’s additional argument that the 

probative value of this evidence is substantially outweighed by the danger of 
confusion or unfair prejudice.  Any inappropriate inferences the jury might draw 
can be handled by an appropriate instruction, if necessary.  Accordingly, Wendy’s 
motion is granted on this ground.                                         
   Heightened Duty of Care                                              
   Wendy’s argues Plaintiff should be precluded from asserting or arguing 

Wendy’s owed a “heightened” duty of care to Plaintiff because Plaintiff was a minor 
at the time she worked for Wendy’s.  The Court’s summary judgment order rejected 
the existence of a heightened legal duty, and Wendy’s offers no reason to think that 
Plaintiff will improperly suggest a different legal standard to the jury.  The Court 
will not foreclose Plaintiff from arguing that Plaintiff’s minority is something the 
jury should consider when assessing whether Wendy’s acted with reasonable care 
under the circumstances.  Wendy’s refers to third-party publications Plaintiff may 

seek to introduce, but no specifics are discussed.  The Court therefore will deny 
Wendy’s motion in limine on this ground without prejudice and rule at trial on the 
admission of any specific exhibits or other evidence Plaintiff might seek to place in 
evidence.                                                                 
   Clemmons as a “Manager” or “Supervisor”                              
   The Court has ruled that Clemmons was not a “supervisor” for purposes of 
determining whether Wendy’s potential liability for harassment could be direct or 
vicarious.  The Court therefore will not instruct the jury on a theory of Wendy’s 
vicarious responsibility for the actions of Clemmons.  Instead, Plaintiff will be 

required to prove negligence on the part of Wendy’s itself in order to succeed on her 
Title VII claim as well as her Florida law negligent supervision claim.    
   Given that anticipated instruction, the Court does not see the need for an 
advance ruling on precisely how Plaintiff may describe Clemmons’ position and role 
at Wendy’s.  The Court is confident Plaintiff’s counsel will not attempt to 
characterize that role in a way not supported by the evidence, and that any issues 

may be handled by objections at trial and further instructions, if appropriate.  
Accordingly, Wendy’s motion in limine on this ground is denied without prejudice to 
the ability of Wendy’s to raise this issue at trial.                      
   Evidence of Drug Use, Vaping, Drinking and Horseplay in the Workplace 
   Wendy’s seeks to exclude evidence relating to the overall work environment 
at the restaurant – specifically, evidence of drug use, drinking, and the like  –  on 
the grounds that the evidence is irrelevant to the relationship and encounters 

between Plaintiff and Clemmons and would be presented solely to place Wendy’s in 
a bad light rather than to prove that “any lack of supervision enabled Clemmons to 
harass Plaintiff or commit a battery.”  The Court finds the evidence is relevant to 
Plaintiff’s negligent supervision claim and its probative value outweighs any danger 
of confusing the issues, undue prejudice or the like.  However, the Court will 
exercise its control over the conduct of the trial and presentation of evidence to 
ensure that the evidence presented remains limited and general in nature and does 
not descend into detailed evidence on specific incidents that will distract the jury 
from the main issues involving Plaintiff and Clemmons.  Wendy’s motion on this 

ground is therefore denied without prejudice to Wendy’s raising an objection at trial 
in the context of the evidence proffered.                                 
   Inappropriate Touching by Another Co-Worker                          
   Wendy’s seeks to exclude disputed testimony by Plaintiff of a specific incident 
she remembers of another co-worker, Brent Kalnins, following her into a bathroom 
in July 2023 and engaging in improper touching and groping.  While this specific 

incident might some relevance as part of the allegedly lax supervision of the work 
environment, given the disputed nature of the evidence as to this incident, going 
into detail on it presents a danger of confusing and misleading the jury, undue 
prejudice to Wendy’s, and wasting time on a side issue.  The motion in limine is 
therefore granted on this ground based on Fed. R. Evid. 403.              
   Workplace Rumors of a Relationship Between Plaintiff and Clemmons    
   Wendy’s seeks to exclude testimony by Plaintiff that, prior to December 2023, 

workplace rumors circulated that she and Clemmons were a “couple” or a “thing.”  
Wendy’s argues that the rumors – which Wendy’s says were not “validated” by 
Plaintiff or Clemmons prior to December 2023 – constitute inadmissible hearsay.  
Testimony regarding a rumor would constitute inadmissible hearsay if offered to 
prove the truth of what was rumored.  However, “[i]f the significance of an offered 
statement lies solely in the fact that it was made, no issue is raised as to the truth 
of anything asserted, and the statement is not hearsay.”  Fed. R. Evid. 801 advisory 
committee’s note to subdivision (c).  What was rumored in this case was that 
Plaintiff and Clemmons were engaged in some kind of relationship.  It appears 

Plaintiff would not present evidence of rumors to prove that fact.  Instead, the 
evidence would be offered to prove the existence of the rumors themselves, which 
Plaintiff would link to the testimony of Gavin Harnish, a Wendy’s manager, that he 
raised the issue of the rumors at a Wendy’s managers meeting.  From this evidence, 
Plaintiff presumably would argue that Wendy’s management had information  
giving Wendy’s a reason to investigate further.  Assuming that is the case, any 

testimony as to the existence of the rumors appears to be offered for a non-hearsay 
purpose.  The Court therefore denies the motion in limine to the extent it seeks a 
blanket prohibition on Plaintiff testifying as to the existence of such rumors.  This 
ruling is without prejudice to the ability of Wendy’s to object at trial based on the 
specifics of the proffered testimony.                                     
   Wrongdoing at Other Wendy’s Restaurants                              
   Based on discovery, Wendy’s is concerned that Plaintiff may attempt to point 

to newspaper articles or other evidence of allegations or proof of wrongdoing, 
including wrongdoing involving sexual misconduct, at other Wendy’s restaurants 
over a 14-year period in other parts of the country under different managers and 
different decisionmakers.  Wendy’s argues that such evidence would constitute 
unauthenticated, irrelevant hearsay and would be unfairly prejudicial and subject 
to exclusion under Rule 403.  The Court agrees and grants the motion in limine on 
this ground.  Plaintiff is precluded from presenting evidence or argument relating to 
allegations or incidents of conduct at other Wendy’s restaurants.         
   Argument that Wendy’s Breached a Mandatory Reporting Requirement     

   Based on Plaintiff’s proposed jury instructions, it appears that Plaintiff takes 
the position that the jury should be allowed to consider a violation by Wendy’s of the 
child abuse reporting requirements of § 39.201, F.S., as evidence of Wendy’s 
negligent failure to supervise Clemmons and its gross negligence.  Wendy’s moves 
to preclude this argument and any related evidence.                       
   Wendy’s argues that Plaintiff has asserted no claim for “negligence per se” 

and that the statute does not give rise to a private cause of action.  This argument is 
unavailing because Plaintiff does not argue that a violation would be negligence per 
se but merely evidence of negligence.  The Court, however, finds persuasive Wendy’s 
argument that this evidence should be excluded under Fed. R. Evid. 403.  Even 
assuming that non-reporting by Wendy’s or its employees of information relating to 
Plaintiff and Clemmons violated § 39.201, and further assuming that violation had 
some relevance as evidence of negligent supervision over Clemmons, assessing this 

issue would threaten to bog the jury down in considering statutory provisions and 
definitions related only indirectly, if at all, to Plaintiff’s claims for negligent 
supervision and with at most a speculative connection to Plaintiff’s claimed injuries.  
The Court concludes that any probative value evidence and argument regarding a 
violation of § 39.201 might have is greatly outweighed by the danger of confusing 
the issues, undue prejudice, misleading the jury, and wasting time.  Accordingly, 
Wendy’s motion in limine is granted as to this ground.                    
Plaintiff Motion in Limine (Doc. 130)                                     
   Department of Children and Families’ Records                         

   Plaintiff seeks to exclude evidence and argument relating to Department of 
Children and Families records concerning Plaintiff and her family.  Wendy’s argues 
that the records show that Plaintiff’s parents disciplined her for engaging in sex 
with Clemmons in their house, and that Plaintiff responded by accusing her father 
of dragging her by her hair in an earlier incident, an accusation which the DCF 
investigation concluded was not supported.  Wendy’s argues this evidence impacts 

Plaintiff’s credibility by showing a propensity on her part to tell “stories.”  Wendy’s 
argues the evidence is also relevant to the credibility of her parents because in their 
depositions, they tried to characterize Plaintiff’s accusation as involving a mistake 
rather than deliberate falsehood as previously stated to the DCF.         
   The Court agrees with Plaintiff that any use of this evidence to show Plaintiff 
is untruthful would be precluded by Fed. R. Evid. 404 and any other relevance this 
information might have is greatly outweighed by the danger of allowing, as Plaintiff 

puts it, “a mini-trial on family history that has no connection to the damages period 
or the conduct at issue,” likely resulting in unfair prejudice, confusing and 
misleading the jury, and waste of time.  Accordingly, Plaintiff’s motion is granted as 
to this ground.                                                           
   Morningstar Wellness Therapy Records                                 
   Plaintiff seeks to exclude records from Morningstar Wellness Therapy, 
including a parent questionnaire.  These records relate to therapy Plaintiff received 
with Dr. Tara Delach, a potential witness in the case.  Plaintiff argues the therapy 
took place prior to her employment at Wendy’s and related to issues of “adolescent 

frustration, school performance, and family dynamics” bearing no relationship to 
her employment at Wendy’s or her relationship with Clemmons.  Plaintiff further 
argues that Wendy’s wishes to admit the records solely to place before the jury 
questionnaire responses by her parents indicating that Plaintiff lied about issues 
relating to her school grades.  Plaintiff argues that admission of this evidence would 
violate Fed. R. Evid. 404, that the records contain hearsay within hearsay, and that, 

in all events, they should be excluded under Fed. R. Evid. 403.           
   Based on the argument at the pretrial conference concerning whether Dr. 
Delach will be allowed to testify, it appears Wendy’s position is that the issues 
explored in therapy and reflected in these records offer an alternative explanation 
for any emotional problems Plaintiff attributes to her employment at Wendy’s.  
Wendy’s expert Dr. Kaplan relies on these records, among other things, in reaching 
his opinions regarding Plaintiff’s mental health and its cause or causes.  Under Fed. 

R. Evid. 703, experts may rely on facts or data that are not admitted or even 
admissible in evidence, but the proponents of the expert opinion may not disclose 
the inadmissible information to the jury unless its probative value in helping the 
jury evaluate the opinion substantially outweighs its prejudicial effect.   
   Plaintiff’s motion is granted in part and denied in part on this ground.  The 
Court concludes the records are not admissible as substantive evidence of the 
matters asserted in them.  Dr. Kaplan may in his direct testimony note that the 
information he relied on to reach his opinion included records of Plaintiff’s prior 
mental health treatment at Morningstar.  However, Dr. Kaplan may not refer 

specifically to the contents of the Morningstar records until the Court has made a 
determination whether their probative value exceeds any prejudicial effect, based 
on a proffer by Wendy’s outside of the jury’s presence.  If the Court determines that 
the records’ probative value in connection with Dr. Kaplan’s opinion does not 
outweigh their prejudicial effect, then Wendy’s counsel and witnesses will not be 
allowed to refer to the contents of these records unless Plaintiff opens the door in 

cross-examination of Dr. Kaplan or in presenting other evidence or argument.  
   Settlement Between Plaintiff and Clemmons                            
   For the reasons set forth above in connection with Wendy’s motion in limine 
on this same point, the Court denies Plaintiff’s motion to exclude the settlement 
agreement between Plaintiff and Clemmons.  The Court, however, will consider a 
limiting instruction regarding the jury’s use of this evidence.           
   Lack of Criminal Charges Against Clemmons                            

   For the reasons discussed at the pretrial conference, based on concerns over 
confusing and misleading the jury, undue prejudice, and waste of time, the Court 
will not permit the parties to offer evidence or present argument on the lack of law 
enforcement involvement or criminal charges against Clemmons, other than a 
general reference to their absence to satisfy any curiosity the jury may have and 
avoid speculation on their part.  The Court suggests the parties submit a joint 
proposal as to how to deal with this issue, and the Court will consider any proposal 
the parties submit for an instruction to the jury on this point.          
   Plaintiff’s and Her Parents’ Alleged Failure to Report Abuse         

   For largely the same reasons discussed above in connection with Wendy’s 
alleged failure to report the incidents involving Plaintiff and Clemmons in violation 
of § 39.201, F.S., the Court similarly will not permit Wendy’s to argue that Plaintiff 
or her parents acted negligently in failing to report the incidents involving 
Clemmons to law enforcement.  Whether couched in terms of violation of statute or 
simply as a lack of reasonable care, any limited relevance the evidence may have is 

outweighed by the danger of confusing the issues and waste of time.       
Plaintiff’s Amended Motion to Strike (Doc. 139)                           
   Plaintiff seeks to exclude two defense witnesses, Dr. Tara Delach and 
Fabiana Marzorati, Plaintiff argues were not timely disclosed in discovery.  The 
Court ruled at the pretrial conference that the motion to strike was denied, but that 
Plaintiff could take a deposition of Ms. Marzorati prior to trial, limited to 90 
minutes.                                                                  

   Accordingly, it is                                                   
   ORDERED, ADJUDGED, and DECREED:                                      
(1)  “Plaintiff’s Daubert Motion to Exclude the Opinions and Testimony of 
     Defendant’s Expert Dr. Eric Kaplan” (Doc. 122) is DENIED.          
(2)  “Defendant’s Rule 412 Motion to Admit Evidence of Plaintiff’s Past Sexual 
     Behavior” (Doc. 128), is GRANTED IN PART and DENIED IN PART        
       as set forth herein. 
 (3)    “Defendant’s Motions in Limine (Doc. 129), is GRANTED IN PART and 
       DENIED IN PART as set forth herein. 
 (A)    “Plaintiff M.B.’s Motion in Limine” (Doc. 130) is GRANTED IN PART 
       and DENIED IN PART as set forth herein. 
 (5)    “Plaintiff's Amended Motion to Strike” (Doc. 139) is DENIED. 
  DONE and ORDERED in Chambers in Tampa, Florida, this 17th day of 
October, 2025. 
                                   NAP.   GA. 
                                 TOMBARBER
                                  UNITED STATES DISTRICT JUDGE 

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