If your doctor says you said it...

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 26

CASES FROM THE WEEK OF June 28, 2019

ERROR TO REFUSE TO ADMIT A MEDICAL RECORD CONTAINING A STATEMENT THE PLAINTIFF MADE TO HER TREATING PHYSICIAN CONCERNING HOW THE ACCIDENT OCCURRED—EACH LAYER OF HEARSAY COVERED BY THE BUSINESS RECORDS EXCEPTION—AND THERE IS NO REQUIREMENT THAT A PARTY ADMISSION HAS TO BE TRUSTWORTHY TO BE ADMISSIBLE.       

Strong v. Underwood, 44 Fla. L. Weekly D1598 (Fla. 5th DCA June 21, 2019):

Plaintiff was driving her motorcycle when she collided with an SUV. She and her husband asserted that the defendant had negligently operated her vehicle, thereby causing the collision and severely injuring the plaintiff.

At trial, the parties vigorously contested liability with each asserting that the other caused the accident by crossing the center line. 

In support of her position, the defendant sought to admit a medical record from one of the plaintiff’s treating physicians.  During his deposition, the plaintiff’s doctor testified that according to his medical record’s he examined the plaintiff the day after the accident and recorded in his medical record that plaintiff had stated that one of the tires on her motorcycle blew, and she collided head-on with an SUV going at an unknown rate of speed.

The doctor had no independent recollection of the plaintiff or his conversation and agreed that the statement could have been made directly to him or one of the several other doctors, and that it was more likely than not that the plaintiff made the statement to a member of the trauma team.  He testified that he would not normally have written, “she states” unless the patient had verbalized the statement to him.

The trial court excluded the statement as inadmissible hearsay, finding the source of the statement was unknown. The defendant asserted that the plaintiff’s statement should have been admissible as an admission of a party opponent contained in a business record.  She further argued that the source of the statement was known because the medical record indicated the statement came from the plaintiff.  The appellate court agreed.

Finding that medical records are admissible under the business records exception, the record at issue was admissible.  Whether the plaintiff’s hearsay statement contained within the record was admissible was a separate matter, but a patient’s statement contained within a medical record may be admitted, provided that the statement itself falls under a separate hearsay exception.

The statement at issue here indicated that the accident occurred after one of the tires on the plaintiff’s motorcycle blew, causing her to collide with the defendant’s vehicle.  The defendant sought to use the statement against the plaintiff at trial, and because it was offered against her, the court found it fell within the hearsay exception set forth in section 90.803(18)(a).

Although the statement was an admission by a party opponent and contained within a medical record, the trial court found the statement inadmissible, because it believed that source of the statement was unknown.  However, the medical record attributed the statement to the plaintiff herself (unlike in the case that plaintiff relied on, where the statement was not attributable to anyone). 

Additionally, the doctor testified he dictated and signed the medical report after examining the plaintiff, and would not have normally written “she states” unless the patient had verbalized the statement to him.  As such, the court found that was evidence that the plaintiff had made the statement.

The court then rejected the plaintiff’s argument that the statement was not admissible because it may have been transmitted through another member of the hospital staff to the doctor, which would have created a double hearsay problem. A statement is not rendered inadmissible merely because it passes through two declarants.  Rather the statement will be admissible as long as each level of hearsay is covered by an exception.

Here, the statement may have occurred between two employees of the same company in the course of business, so even if the statement was not made to the doctor directly, each layer of hearsay was covered under the business records exception.

Plaintiff further asserted that the statement was unsupported by corroborating evidence, was untrustworthy, and was unfairly prejudicial.  However, the court noted that the lack of corroborating evidence that the accident was caused by a tire blowout went to the weight of the statement, not to its admissibility.

Additionally, there is no requirement that a party admission must be trustworthy to be admissible, and medical records are considered inherently trustworthy unless their trustworthiness is challenged. The plaintiff here did not demonstrate that the medical record was untrustworthy.

The statement was also not unfairly prejudicial in light of its high probative value as a contradiction of the plaintiff’s subsequent version of the accident, and therefore not subject to §90.403.

The court punctuated its decision by finding that the error keeping the evidence out was not harmless because there was a reasonable possibility that the exclusion contributed to the verdict.  The ruling, therefore, necessitated reversal and a new trial.

ERROR TO FIND INDIAN TRIBE’S NOMINAL OFFER OF JUDGMENT IN BAD FAITH —TRIBE HAD WELL-FOUNDED, GOOD FAITH, AND LEGALLY CORRECT BELIEF THAT SOVEREIGN IMMUNITY DIVESTED THE TRIAL COURT OF SUBJECT MATTER JURISDICTION. 

Miccosukee Tribe of Indians of Florida v. Tein, 44 Fla. L. Weekly D1557 (Fla. 3rd DCA June 19, 2019):

Plaintiff sued the Miccosukee Tribe for damages, and shortly thereafter, the Tribe moved to dismiss for lack of subject matter jurisdiction under a theory of sovereign immunity.

The Tribe appealed the denial of its motion to dismiss, and the week after oral argument of this interlocutory appeal, the Tribe made offers of judgment of $2,500.00 to each of the three plaintiffs. Three months later, the court reversed the denial of the motion to dismiss, and after the dismissal, the Tribe moved for attorney’s fees pursuant to section 768.79.  The trial court denied the motion for fees, finding that the offers were both made in bad faith and made nine months into the case.

The issue of good faith by its very nature is determined by the subjective motivations and beliefs of the pertinent actor. As long as the offeror has a basis in a known or reasonable belief to conclude that the offer is justifiable, the good faith requirement is satisfied.  Proof of bad faith requires a showing beyond the mere amount of the offer.

In this case, the Tribe had a well-founded, good faith and legally correct belief that sovereign immunity divested the trial court of subject matter jurisdiction. The offer of judgment statute also envisioned offers of judgment being made well into the litigation because it allows the award of fees incurred from the inception of the lawsuit but incurred from the date the offer was served (and not from the beginning of the lawsuit). 

ERROR TO GRANT SUMMARY JUDGMENT IN A TRIP AND FALL CASE BASED ON THE OPEN AND OBVIOUS DANGER DOCTRINE—MATERIAL ISSUE OF FACT AS TO WHETHER THE DEFENDANT VIOLATED THE DUTY TO MAINTAIN THE PREMISES IN A REASONABLY SAFE CONDITION WHERE THE PLAINTIFF CLAIMED THAT A WHEEL STOP WAS PLACED NEAR THE EGRESS OF THE BUILDING IN A PARKING LOT, WHICH CREATED AN UNREASONABLY DANGEROUS CONDITION, AND PLAINTIFF’S EXPERT AFFIDAVIT OPINED THAT THE PLACEMENT CONSTITUTED A DANGEROUS CONDITION IN VIOLATION OF THE FLORIDA BUILDING CODE.    

Parker v. Shelmar Property Owners Association, 44 Fla. L. Weekly D1601 (Fla. 5th DCA June 21, 2019):

The plaintiff sustained injuries when she tripped on a wheel stop in the defendant’s parking lot.  Defendant moved for summary judgment based on the open and obvious danger doctrine.  Defendant further claimed it did not breach the duty to maintain the premises because invitees should be reasonably expected to see wheel stops and protect themselves.

In support of its summary judgment, the defendant attached the affidavit of a former party asserting that the wheel stops were in place when the defendant obtained the property, the area was well maintained, and there had been no report of prior accidents related to wheel stops. 

Plaintiff filed a response arguing that the defendant violated Chapter 10, section 1002.1 of the Florida Building Code, by placing the subject parking bumper in the pathway of an ingress and egress into the subject building.  She attached photos of the parking lot, the wheel stop, and the building entry. She also attached the affidavit of a forensic engineer who maintained that the placement of the wheel stop created a dangerous condition and violation of the Florida Building Code. 

The defense rested primarily on the open and obvious danger doctrine, which the court observed does not completely discharge property owners duty to maintain their premises in a reasonably safe condition. When an injured party alleges a breach of the duty to maintain the premises, factual issues frequently exist as to whether the condition was dangerous, and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious.

Viewing the record in the light of most favorable to the plaintiff, the court found material issues of fact existed regarding whether the defendant violated the duty to maintain the premises in a reasonably safe condition, and therefore summary judgment was improper.     

TRIAL COURT ERRED IN FAILING TO AWARD PREJUDGMENT INTEREST ON ATTORNEY’S FEES WHERE PARTIES REACHED A SETTLEMENT AGREEMENT ON AMOUNT OF FEES, BUT THE PAYMENT WAS NOT MADE FOLLOWING SETTLEMENT UNTIL JUDGMENT WAS ENTERED NEARLY THREE YEARS LATER—TRIAL COURT ALSO ABUSED DISCRETION IN FAILING TO TAX FEES FOR EXPERT’S TIME IN PREPARING COURT ORDERED AFFIDAVIT.

Smith v. Unum Life Insurance Co., 44 Fla. L. Weekly D1610 (Fla. 5th DCA June 21, 2019):

Plaintiff sued Unum seeking benefits pursuant to a disability policy.  After three years of litigation, the party settled the case, which included an acknowledgment that the plaintiff was entitled to reasonable attorney’s fees and costs.

The parties were unable to reach an agreement as to the amount of the fees, and the trial court referred the issue to mediation.  Following a hearing with a special master, the trial court overruled the numerous exceptions plaintiff filed to the special master’s report (there were significant reductions for time, and a refusal to award it and multiplier) and entered a final judgment. 

Because interest on attorney’s fees accrues from the date of entitlement though to the agreement, arbitration order or court’s determination (even when the amount of fees has not been determined), plaintiff was entitled to prejudgment interest on those fees. The court ruled that upon remand the trial court should award prejudgment interest from the date of settlement or from an alternate date when the insurance company could have made an informed tender of payment. 

While the guidelines do not specifically address whether an expert’s fees for preparing to testify is taxable, trial courts are not precluded from considering the time an expert spent in preparing to testify and may exercise broad discretion in that regard. 

The court concluded that the trial judge acted within its discretion in refusing to tax the expert’s preparation time for the deposition and evidentiary hearing, though he ruled the expert was entitled to time for preparation of a court-ordered affidavit.

One judge dissented noting that no reasonably prepared attorney would permit a witness, much less an expert, to attend a deposition or hearing unprepared, and thus experts justifiably expect to be compensated for the time spent preparing for such proceedings.

In that judge’s view, when the presenting party prevails, such costs should be taxed.