Court refuses to exclude expert testimony on the application of local zoning regulations

Court refuses to exclude expert testimony on the application of local zoning regulations

In 2014, Plaintiffs asked Defendant to rezone a parcel of land from Agricultural (“AG-2”) to Community Facilities Planned Development (“CFPD”). They needed the rezoning to build a 72-bed residential substance abuse treatment center and detoxification facility. Plaintiffs were initially successful. Defendant’s staff and hearing examiner recommended rezoning because the facility was compatible with the surrounding area’s mixed-use character. But the success was short-lived.

The Lee County Board of Commissioners unanimously voted against the rezoning at a public hearing on August 5, 2015.

Plaintiffs disputed why their application failed. According to them, the Board rejected the rezoning because of community opposition to the facility. 

Plaintiffs pursued multiple avenues to get the zoning approval. On August 1, 2019, they filed this Americans with Disabilities Act (“ADA”) suit seeking monetary damages, declaratory relief, and injunction relief. Plaintiffs have alleged that Defendant (1) intentionally discriminated against them and their proposed patients when it denied the rezoning application, and (2) did not provide a reasonable accommodation.

Defendant, Lee County, pursuant to Federal Rule of Evidence 702 (“Rule 702”), sought to exclude the improper expert opinions of Plaintiffs’ designated expert witnesses, Veronica Martin (“Martin”) and Mary Magno Mouracade, M.D. (“Mouracade”).

Project Management Expert Witness

Veronica Martin is a Senior Planner/Project Manager with 17 years’ experience at TDM Consulting, a civil engineering and planning firm. She has testified as an expert on planning matters more than 40 times.

Want to know more about the challenges Veronica Martin has faced? Get the full details with our Challenge Study report. 

Internal Medicine Expert Witness

Mary Magno Mouracade is a medical doctor and is board certified in internal medicine, nephrology, and integrated medicine, and is board-eligible for certification in addiction medicine.

She is the Chief Medical Officer for Kimberly Regenesis in Ft. Myers, Florida.

Get the full story on challenges to Mary Magno Mouracade’s expert opinions and testimony with an in-depth Challenge Study. 

Discussion by the Court

First, Defendant maintained that neither Martin nor Mouracade had any specialized knowledge to help the Court understand the evidence or determine a fact. Second, Defendant claimed that Martin will usurp the Court’s role by stating legal conclusions on reasonable accommodations and the application of local zoning regulations. Third, both expert opinions are based on flawed methods and are not based on facts or data.

The Eleventh Circuit has recognized that the barriers to opinion testimony are more relaxed in a bench trial where the judge is serving as factfinder and the Court is not concerned about “dumping a barrage of questionable scientific evidence on a jury.” The Court held that Defendant’s concerns about Plaintiffs’ experts are more appropriately discussed at trial when all the facts can be considered.

If any shortcomings about an expert’s qualifications arise, or part of any expert’s testimony seems unhelpful or unreliable, Defendant may present its arguments through “vigorous cross examination and the presentation of contrary evidence.”


The Court denied Defendant’s motion in limine to exclude the testimony of Plaintiff’s designated expert witnesses, Veronica Martin and Mary Magno Mouracade.

Key Takeaway:

The Court, sitting as trier of fact, is in the best position to distinguish between persuasive and insufficient expert evidence at trial.

In Gibbs V. Gibbs, 210 F.3d 491 (5th Cir. 2000), it was held that most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.

Case Details:

Case Caption:Kimberly Regenesis, Llc, Et Al V. Lee County, A Florida Political Subdivision
Docket Number:2:19cv538
Court:United States District Court, Florida Middle
Order Date:June 24, 2024


Leave a Reply

Your email address will not be published. Required fields are marked *