38 Fla. L. Weekly D2477a
was injured while a passenger on a public bus that was involved in an accident
with another vehicle, it was not an abuse of discretion to admit time lapse
videos taken by surveillance cameras located within the bus — Trial court did
not abuse discretion in determining that the videos were a fair and accurate
representation of what occurred on the bus — Letters of protection sent by
insured’s counsel to insured’s treating physicians, under the terms of which
physicians would reduce their bills if insured failed to receive full value of
claims against insurer, were not evidence of a collateral source, and trial
court did not abuse discretion by admitting letters into evidence and allowing
insurer to question physicians about their reduction-of-fee agreements
District. Case No. 2D11-6392. Opinion filed November 27, 2013. Appeal from the
Circuit Court for Pinellas County; Pamela A.M. Campbell, Judge. Counsel: Stephan
A. Barnes of Barnes Trial Group, Tampa, and Valeria Hendricks of V. Hendricks,
P.A., Tampa, for Appellant. Joseph F. Kinman of Ogden & Sullivan, P.A.,
Tampa, and Henry G. Gyden and Dorothy V. DiFiore of Haas, Lewis, DiFiore, P.A.,
Tampa, for Appellee.
judgment in favor of Geico Casualty Company in Mr. Smith’s uninsured motorist
action against the insurer. The trial court’s final judgment was based on a jury
verdict by which the jury awarded Mr. Smith past medical damages but denied him
future medical expenses. We affirm the final judgment but write to address two
accident with another vehicle. Mr. Smith alleges that as a result of the
accident, he received injuries to his back requiring extensive treatment and
multiple surgeries. Mr. Smith filed a cause of action against the driver of the
other vehicle and Geico as his underinsured motorist carrier. In his complaint,
he claimed that he had incurred a permanent physical injury, had $250,000 in
past medical expenses, and was entitled to an award of future medical expenses.
Geico argued below that Mr. Smith had a prior degenerative condition not related
to the accident. Additionally, Geico pointed to prior back problems suffered by
Mr. Smith, questioned the necessity of some of the surgeries and procedures that
Mr. Smith had incurred, and cast doubt on whether Mr. Smith was in as much pain
as he claimed. The issues of causation and damages both were closely contested.
the other vehicle and voluntarily dismissed the action against him. The action
against Geico proceeded to jury trial, and the jury returned a verdict in Mr.
Smith’s favor for $20,000 in past medical expenses but also found that Mr. Smith
had not incurred a permanent injury as a result of the accident and was not
entitled to any future medical expenses. Mr. Smith now appeals the final
judgment based on the jury’s verdict.
Geico to present to the jury videos taken by surveillance cameras located within
the bus. These were time-lapse videos that showed only four to five frames per
second as opposed to real time videos, which the parties agreed below typically
show twenty-nine to thirty frames per second. In opening statement, counsel for
Geico indicated that the jury would “get to actually see the accident occur
because the accident was recorded on bus videotapes. . . . And you’ll get to see
what happened to Mr. Smith in the bus.” Counsel for Geico further stated that
Geico’s expert witness, an accident reconstructionist, had viewed the videos and
would use them to testify as to the speed at which the bus was traveling and the
distance the bus traveled during the accident. In objecting to the introduction
of the videos, Mr. Smith first stipulated to the speed and distance traveled as
determined by Geico’s expert. He then argued that the videos were not fair and
accurate representations of what occurred on the bus and that the probative
value of the videos was outweighed by the possibility that they would mislead
the jury because they did not “catch the entire motion of Mr. Smith. It catches
him at certain points. We don’t know what happened in the other frames.” The
trial court overruled Mr. Smith’s objection and allowed the time-lapse videos to
be shown to the jury.
time-lapse videos did not contain all that happened during the incident. Mr.
Smith argues that Geico’s experts were able to mislead the jury by suggesting
that Mr. Smith did not hit the seat in front of him during the accident as he
had testified. Mr. Smith asserts that the videos were not a fair and accurate
representation of what happened in the bus during the incident.
A videotape, like a still photograph may be admissible, “if relevant
to any issue required to be proven in a case,” State v. Wright, 265 So.
2d 361, 362 (Fla. 1972), “unless it is barred by a rule of exclusion or its
admission fails a balancing test to determine whether the probative value is
outweighed by its prejudicial effect.” Rose v. State, 787 So. 2d 786, 794
proponent of a [videotape] must be prepared to establish as a predicate for its
admission that the [videotape] fairly and accurately represents what its
purports to depict.” Id. at 536. Furthermore, the time-lapse nature of a
video does not make the video per se inadmissible. See generally
Jefferson v. State, 818 So. 2d 565, 566 (Fla. 1st DCA 2002) (“Each case
in which a time[-]lapse videotape or a copy thereof has been received in
evidence over objection supports affirming here. Cases in which no objection to
such tapes was noted also support the view that time[-]lapse videotapes are not
automatically excludable.” (citations omitted)).
question.1 As such, we cannot say that the
trial court abused its discretion in determining that the videos were a fair and
accurate representation of what occurred on the bus that day. See
Bryant, 810 So. 2d at 536 (noting that if no witness is available to
testify as to the accuracy of a video or photograph, a trial court can base a
finding that the evidence “ ‘is a fair and accurate representation of a material
fact,’ ” on “foundational facts establishing the reliability of the process that
yielded the photographic images” (quoting Charles W. Ehrhardt, Florida Evidence,
§ 401.2, at 114 (2001 Ed.))); see also Bowles v. State, 979 So. 2d
182, 194 (Fla. 2008) (“Admission of photographs is a matter for the discretion
of the trial court, and this [c]ourt has held it will not disturb such rulings
absent a clear abuse of discretion.”).
rejecting Mr. Smith’s section 90.403, Florida Statutes, argument that the
videos’ probative value is substantially outweighed by the danger that they
might unfairly mislead the jury due to their time-lapse nature. As the trial
court pointed out in its ruling, there would be nothing prejudicial about
introducing still photographs taken from the videos. Still shots would also be
accurate representations of what occurred on the bus. The time-lapse videos
essentially consist of four to five still photographs per second shown in rapid
succession. And also as the trial court pointed out, Mr. Smith was free to —
and did — cross-examine the expert regarding the time-lapse nature of the
videos and the fact that real time would include another twenty-four to
twenty-six frames per second. As such, Mr. Smith’s arguments go to the weight
that should be given the evidence, not the admissibility of the evidence. We see
no error in the trial court’s admitting the time-lapse videos in to evidence.
that his attorney sent to his several treating physicians.2 At trial, counsel for Geico first mentioned the
letters of protection in opening statement by suggesting that the individual
doctors each had a financial interest in the lawsuit. Counsel stated: “You will
hear . . . that Chiropractor Thorpe was treating Mr. Smith under a letter of
protection. The letter of protection essentially says, I’ll treat you for free,
pay me back out of your lawsuit. Chiropractor Thorpe’s financial interest in
this lawsuit is about $6500.” This type of statement was repeated regarding each
of Mr. Smith’s physicians.
Zak, M.D., counsel asked the doctor to describe the letter of protection he
received from Mr. Smith. The doctor responded that although Mr. Smith was still
responsible for the bill, payment would be deferred until the claim against the
insurance company was completed. The conversation concluded with the following
Q: All right. That is my point. If the insurance company doesn’t
pay, do you just forget about the bill?
A: No, we still ask the patient to find a way to pay the
protection on an overhead projector and asked Dr. Zak if he had agreed to the
following language in the letter: “The client and the provider agree that in the
event the Settlement, Verdict, or Judgment are reduced, compromised or modified
and if the client does not receive full value for their [sic] claim the provider
shall also reduce its bill proportionately to the client’s reduced recovery.”
Dr. Zak confirmed that he had agreed to that provision in the letter of
protection he received from Mr. Smith. When counsel inquired of Dr. Zak as to
the discrepancy between his earlier statement that Mr. Smith would be held
responsible for the bill and the language agreeing to a reduction of the bill,
counsel for Mr. Smith objected, arguing that the question brought up an
inadmissible collateral source, was irrelevant, and provided a way for Geico to
escape liability for the damages Mr. Smith incurred.
direct examination by giving the impression that if Mr. Smith obtained a
judgment less than the amount of medical bills, he would be held personally
responsible for the difference. Geico argued that this was not an accurate
impression and that it had the right to show that Mr. Smith’s financial
obligations would be reduced proportionately based on the value of his recovery.
Counsel also argued that the issue of Dr. Zak’s personal financial interest in
the outcome of the case was proper witness impeachment. The trial court
overruled Mr. Smith’s objection, and Geico’s counsel went on to ask similar
questions of Dr. Hassan, again over Mr. Smith’s objections. After the jury
returned a verdict for Geico, Mr. Smith moved for a new trial, but the trial
court denied the motion.
evidence of this language in the letters of protection could lead the jury to
compromise its liability verdict by thinking that if Mr. Smith obtained a
limited award — or no award at all — he would not be prejudiced because his
doctors agreed to take a reduced fee proportionate to the award of damages
stated in the verdict. Mr. Smith maintains that this evidence amounted to
collateral source evidence, which is per se inadmissible. We do not agree.
the payments from such sources were not used to offset the tortfeasor’s
liability. Goble v. Frohman, 848 So. 2d 406, 408 (Fla. 2d DCA 2003).
However, the Florida Legislature modified the portion of the rule related to
damages by enacting section 768.76, Florida Statutes. By this provision, the
payments made to or on behalf of an injured party by a collateral source are to
be offset against the damage awarded to an injured party by verdict or
settlement. § 768.76(1), Fla. Stat. (2011) (“[T]he court shall reduce the amount
of such award by the total of all amounts which have been paid for the benefit
of the claimant, or which are otherwise available to the claimant, from all
collateral sources.”). But “[t]he collateral source rule functions as both a
rule of damages and a rule of evidence.” Gormley v. GTE Prods. Corp., 587
So. 2d 455, 457 (Fla. 1991). And the evidentiary application of the collateral
source rule has remained unchanged.
[C]ollateral source evidence misleads the jury on the issue of
liability and, thus, subverts the jury process. Because a jury’s fair assessment
of liability is fundamental to justice, its verdict on liability must be free
from doubt, based on conviction, and not a function of compromise. Evidence of
collateral source benefits may lead the jury to believe that the plaintiff is
“trying to obtain a double or triple payment for one injury,” Clark
[v. Tampa Elec. Co.], 416 So. 2d 475, 476 [(Fla. 2d DCA 1982)], or to
believe that compensation already received is “sufficient recompense.” Kreitz
v. Thomas, 422 So. 2d [1051,] 1052 [(Fla. 4th DCA 1982)].
Id. at 458.
issue here do not involve a payment by a third party. The doctors’ fees will
only be established after the jury determines the damages. The collateral source
rule specifically relates to the offsetting of damages, but there is no offset
to be paid here. Accordingly, the instant agreements do not meet the definition
of a collateral source.
source evidence can cause. But the way to remedy that problem is by weighing the
potential prejudice against the evidence’s probative value as called for in
section 90.403, not by per se excluding the evidence as violative of the
collateral source rule. Mr. Smith, however, did not make a section 90.403
challenge to this evidence below or on appeal, and thus we cannot consider such
prejudice in our disposition of this appeal. See Pagan v. Sarasota
Cnty. Pub. Hosp. Bd., 884 So. 2d 257, 271 (“ ‘[A]n appellate court will not
consider any ground for objection not presented to the trial court; review is
limited to the specific grounds raised below.’ ” (alteration in original)
(quoting Clock v. Clock, 649 So. 2d 312, 315 (Fla. 3d DCA 1995))).
collateral source, we conclude that the trial court did not abuse its discretion
in allowing Geico to question Mr. Smith’s treating doctors about their
reduction-of-fee agreements. See Pelham v. Walker, 2013 WL
5225340, *3 (Fla. 2d DCA Sept. 18, 2013) (“We review the trial court’s
evidentiary rulings for an abuse of discretion.”).
court’s final judgment. (ALTENBERND and CASANUEVA, JJ., Concur.)
stated: “[P]laintiff doesn’t dispute this is an unadulterated version of the
video that was on the bus.”
sent by an attorney on a client’s behalf to a health-care provider when the
client needs medical treatment[ ] but does not have insurance. Generally, the
letter states that the client is involved in a court case and seeks an agreement
from the medical provider to treat the client in exchange for deferred payment
of the provider’s bill from the proceeds of [a] settlement or award[,] and
typically if the client does not obtain a favorable recovery, the client is
still liable to pay the providers’ bills.’ Caroline C. Pace, Tort Recovery
for Medicare Beneficiaries: Procedures, Pitfalls and Potential Values, 49
Hous. Law. 24, 27 (2012).” Carnival Corp. v. Jimenez, 112 So. 3d 513, 517
n.3 (Fla. 2d DCA 2013).
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