FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 36

CASES FROM THE WEEK OF SEPTEMBER 8, 2017

REPORTS OF THE SURGEON GENERAL WERE HEARSAY AND SHOULD NOT HAVE BEEN ADMITTED IN THIS TOBACCO CASE--THE REPORTS DID NOT QUALIFY AS PUBLIC RECORDS OR AS ADOPTIVE ADMISSIONS WHICH WOULD HAVE MADE THEM EXCEPTIONS TO THE HEARSAY RULE, AND THE ADMISSION OF THE REPORTS WAS NOT HARMLESS.

Philip Morris v. Pollari, 42 Fla. L. Weekly D1896 (Fla. 4th DCA August 30, 2017):

The defendants unsuccessfully sought to exclude the Surgeon General’s reports from 20 years prior, including those from 2010, 2012 and 2014. The plaintiff did not dispute that the reports were hearsay, but argued they were admissible under the public records exception, and as adoptive admissions.

At trial, the plaintiff’s attorney endorsed the Surgeon General as the leading medical authority on cigarette smoking and nicotine addiction. Wide ranging excerpts from 2010, 2012 and 2014 were admitted as evidence and made available to the jury. The plaintiff relied on those reports at every major stage of the trial for numerous propositions, and read various portions during opening statements, expert witness testimony and closings.

Plaintiff argued that the reports were not offered to prove the truth of the matter and asserted, were therefore not hearsay. The court rejected that argument. The court said the reports contained multiple levels of out of court statements made by several declarants who did not testify at trial, and were therefore offered to prove the truth.

Under the public records exception set forth in section 90.803(8), two types of public records and reports are admissible into evidence: (1) those setting forth “the activities of the officer agency” and (2) those of a public office or agency which set forth matters observed pursuant to a duty imposed by law as to which matters there was a duty to report. If evidence is to be admitted under one of the exceptions, it must be offered in strict compliance with the requirements of the particular exception.

The court said these reports did not fall under the first category of the exception because they were not reports or records of the activities of the Surgeon General’s office or of a government agency. Those are usually limited to include factual reports focused on the essential functions of the officer agency, and to meet the exception, those documents may do no more than simply set forth the activities of the government agency. Those kinds of records are those showing the receipts or disbursements of a governmental department or official reports of a statistical nature.

The reports also did not fall within the second category based on a public official’s first-hand observation of an event. The office of the Surgeon General reports on the health effects of smoking on a biennial basis, compiled with input by various members of the scientific and academic community. The reports are collections of statements and opinions by numerous authors, and at best were a collaborative effort by both government and non-government persons.

That said, no public official including the Surgeon General had personal knowledge of the information provided in their reports, nor did any of the reports’ authors directly observe the testing of the tobacco products referenced or the other matters covered instead relying on surveys of relevant literature to draw conclusions. Thus, there was no basis to conclude that any of the reports’ non-government contributors directly observed the matters that were subject to the reports or had a duty to report such an observation.

In adopting the exception, Florida specifically excluded a third type of record that is admissible under the federal rule, which is a record setting forth factual findings resulting from an investigation made pursuant to authority granted by law. The court held that the records were not admissible under the supreme court’s decision in Lee v. Dept. of Health and Rehab Services, 698 So.2d 1194, 1201 (Fla. 1997).

The court also rejected that these reports constituted adoptive admissions. The crux of the plaintiff’s argument was that the defendants effectively adopted the statements to which their websites provided hyperlinks, and therefore the hyperlinks evinced an endorsement or agreement with every statement and every bit of information contained therein.

The court reminded us that numerous cases have held that statements found on websites are hearsay and must be reviewed as such when considering whether they should be admitted into evidence. It is not enough for an admission that a party merely “repeats” the underlying hearsay; indeed, the party must make use of the hearsay in a manner that manifests a belief in its trustworthiness or reflects the party’s incorporation of the substance of the hearsay into a statement the party made itself.

Finally, because the plaintiff could not prove there was no reasonable possibility that the error complained of did not contribute to the verdict, the error was not harmless.

EVIDENCE INSUFFICIENT TO SUPPORT ATTORNEY’S FEES AWARD.

Chandler v. KCCS, Inc., 42 Fla. L. Weekly D1884 (Fla. 2nd DCA August 30, 2017):

After an evidentiary hearing, the court found that the movant was entitled to section 57.105 fees. However, it reversed as to the amount awarded based on insufficient evidence to support the award.

The only evidence presented at the hearing regarding the hourly rate and the reasonableness of the fees was an affidavit and related documents that were neither introduced into evidence nor stipulated to at the hearing.

To support a fee award, there must be (1) evidence detailing the services performed and (2) expert testimony as to the reasonableness of the fee. Because there was some competent evidence presented to support the award, the court remanded for further proceedings solely as to the proper amount.

COURT ERRED IN ALLOWING STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE CASE TO BECOME A JURY QUESTION, ESPECIALLY WHEN THE DEFENSE EXACERBATED THE ERROR BY PURPOSELY CLOUDING THE ISSUES OF THE CASE BY EMPHASIZING THE STATUTE OF LIMITATIONS ISSUE.

Martin v. Sowers, 42 Fla. L. Weekly D1887 (Fla. 3rd DCA August 30, 2017):

A 35 year old woman had a mammogram in July of 2008. The radiologist who read the mammogram admitted in his deposition that at that time, he had a high degree of suspicion that the plaintiff had malignant breast cancer, and there was a better than 70% probability that the suspicious mass on the mammogram was in fact cancer.

However, he did not communicate that suspicion to the plaintiff or to her primary care physician, instead merely noting a nodule on the mammogram and recommending an ultrasound be performed. The defendant’s report on the mammogram did not use any language typically used to inform the referring physician that there was a “non-routine” finding.

In October of 2008, the plaintiff changed primary care physicians and in November of 2008 she received notice from the defendant radiologist practice group that she needed to have follow up studies to her July mammogram. When the plaintiff contacted the defendant radiologist’s office for a copy of the mammogram, no one informed her that there was any suspicion of breast cancer. In 2008, the record did show she had experienced some breast pain.

In April of 2009, the plaintiff’s new primary care physician ordered an ultrasound of the plaintiff’s breast and did not report any problems with that ultrasound. That doctor saw the plaintiff in April, May and June and then left the practice group. In April of 2010, another ultrasound was performed, showing a suspicious lesion.

It was not until after a biopsy in May of 2010, that the plaintiff was first informed that she had breast cancer. In August of 2010, an MRI confirmed that she had lesions on her spine and in October of 2010, a biopsy of a bone lesion showed metastatic disease in her bones. While she had not had any recurrence of her breast cancer, the plaintiff’s metastatic cancer in her bones never went into remission and continues to progress.

The pleadings in the case made clear that the plaintiff’s actual claim was not that any health care professional caused her to have breast cancer (which the trial court seemed to believe). Instead, the claim was that her injury was the spread of that cancer to her bones. Even the defendant radiologist conceded that if the plaintiff’s claim was for the spread of cancer to her bones, he would lose his claim on the statute of limitations.

There was no dispute as to the date on which the plaintiff first learned she had breast cancer, or as to the date on which she first learned she had metastatic cancer in her bones. It was clear that the discovery of the cancer in other parts of the plaintiff’s body was the actual event that triggered the statute of limitations in this case. As such, the trial court should have granted plaintiff’s motion for summary judgment on the defendant’s statute of limitations defense.

Moreover, even if the breast pain the plaintiff suffered in 2008 was evidence of breast cancer--which the record did not even demonstrate--the breast cancer was not the injury for which the plaintiff and her family sued.

The trial court’s denial of the plaintiff’s motion for summary judgment enabled the defendant doctor to repeatedly direct the jury’s attention to the issue of what the plaintiff knew and when she knew it--questions wholly unrelated to the issue of the spread of the cancer to her bones. The focus of the defendant’s argument and his repeated misstatements as to what the plaintiff was claiming when she had actual knowledge of her injury, were sufficiently egregious to warrant reversal despite the absence of the plaintiff’s objection. Those comments went directly to the heart of the case and constituted fundamental error which deprived the plaintiff of a fair and impartial trial.

Because of the cumulative errors, the plaintiff was entitled to a new trial after the jury reached a verdict for the defendant.

TRIAL COURT ABUSED ITS DISCRETION IN REDUCING REASONABLE HOURLY RATE BELOW THAT ESTABLISHED BY EXPERT EVIDENCE, APPARENTLY BASED ON JUDGE’S PERSONAL OPINION OF WHAT ATTORNEYS SHOULD CHARGE BASED ON THE NUMBER OF YEARS IN PRACTICE--REMAND FOR RECALCULATION OF LODESTAR USING THE REQUESTED HOURLY RATE.

Westaway v. Wells Fargo, 42 Fla. L. Weekly D1926 (Fla. 2nd DCA September 1, 2017):

The trial judge ignored the only expert witness testimony in the case. Even though the court was not bound by the expert’s opinion, the appellate court refused to affirm the trial judge’s award because the record was totally devoid of any evidence to support a conclusion that the award was reasonable.

In a case where the judge does not indicate that her determination of reasonable hourly rates was rooted in her experience as a lawyer, and where she failed to explain why the varying rates that she applied were more reasonable than the single rate that the plaintiff’s attorneys proposed, her only apparent justification for reducing the hourly rate was her personal opinion of what attorneys should charge based on their number of years in practice. That fact alone does not constitute competent substantial evidence.

The court found the trial judge abused her discretion reducing the attorneys’ reasonable hourly rates, and also reversed to consider the lodestar using the rate established by the expert.