42
Fla. L. Weekly D1857aop of Form
Fla. L. Weekly D1857aop of Form
Wrongful
death — Collision between motorcycle and truck — Evidence — Trial court did
not abuse its discretion by permitting introduction of lay witness testimony
regarding speed decedent motorcycle driver traveled on his motorcycle in the
moments preceding the accident; evidence of weight of truck, which was used by
defense expert to calculate motorcycle’s speed at impact; and statements made
by motorcyclist’s child regarding argument between decedent and his girlfriend
shortly before accident — Trial court’s determination that lay witnesses’
observations regarding speed of motorcycle were close enough in time to be
relevant was within trial court’s broad discretion — With regard to witness
who did not see motorcycle, but based his opinion on sound of motorcycle, this
witness’s testimony was based on personal ordinary experience hearing sounds
motorcycle engines make when a driver accelerates and not on a methodology
requiring something beyond everyday reasoning — Psychotherapist-patient
privilege — Because plaintiff’s suit sought damages for “pain and suffering”
on behalf of motorcyclist’s surviving children, trial court properly granted
defense motion to compel production of records from psychotherapist who treated
one of the children — Although plaintiff’s counsel stated that she was no
longer seeking mental anguish damages and that psychotherapist-patient
privilege should be reinstated, trial court properly ruled that the therapist’s
records were admissible when plaintiff subsequently requested jury instruction
on pain and suffering
death — Collision between motorcycle and truck — Evidence — Trial court did
not abuse its discretion by permitting introduction of lay witness testimony
regarding speed decedent motorcycle driver traveled on his motorcycle in the
moments preceding the accident; evidence of weight of truck, which was used by
defense expert to calculate motorcycle’s speed at impact; and statements made
by motorcyclist’s child regarding argument between decedent and his girlfriend
shortly before accident — Trial court’s determination that lay witnesses’
observations regarding speed of motorcycle were close enough in time to be
relevant was within trial court’s broad discretion — With regard to witness
who did not see motorcycle, but based his opinion on sound of motorcycle, this
witness’s testimony was based on personal ordinary experience hearing sounds
motorcycle engines make when a driver accelerates and not on a methodology
requiring something beyond everyday reasoning — Psychotherapist-patient
privilege — Because plaintiff’s suit sought damages for “pain and suffering”
on behalf of motorcyclist’s surviving children, trial court properly granted
defense motion to compel production of records from psychotherapist who treated
one of the children — Although plaintiff’s counsel stated that she was no
longer seeking mental anguish damages and that psychotherapist-patient
privilege should be reinstated, trial court properly ruled that the therapist’s
records were admissible when plaintiff subsequently requested jury instruction
on pain and suffering
MARGARET SAJIUN, as Personal
Representative of the ESTATE OF JOSE ALBERTO SOTO SANTIAGO, Appellant, v.
DANIEL HERNANDEZ, Appellee. 4th District. Case No. 4D16-589. August 23, 2017.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach
County; Jaimie Goodman, Judge; L.T. Case No. 502012CA019229XXXXMB. Counsel:
Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, LLP, West Palm Beach; Carlos A. Bodden and W. David Bennett of
Ellis, Ged & Bodden, P.A., Boca Raton; and Laurence U.L. Chandler, Jr.,
Boca Raton, for appellant. Todd R. Ehrenreich and Noel F. Johnson of Weinberg,
Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for appellee.
Representative of the ESTATE OF JOSE ALBERTO SOTO SANTIAGO, Appellant, v.
DANIEL HERNANDEZ, Appellee. 4th District. Case No. 4D16-589. August 23, 2017.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach
County; Jaimie Goodman, Judge; L.T. Case No. 502012CA019229XXXXMB. Counsel:
Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, LLP, West Palm Beach; Carlos A. Bodden and W. David Bennett of
Ellis, Ged & Bodden, P.A., Boca Raton; and Laurence U.L. Chandler, Jr.,
Boca Raton, for appellant. Todd R. Ehrenreich and Noel F. Johnson of Weinberg,
Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for appellee.
(CIKLIN, J.) After a wrongful death
jury trial, the personal representative of the decedent’s estate recovered
nothing. She believes that certain improper evidence resulted in the defense
verdict, and she challenges several of the trial court’s rulings. We find the
trial court did not abuse the wide and sound discretion afforded to trial
judges in these types of evidentiary rulings, and we affirm.
jury trial, the personal representative of the decedent’s estate recovered
nothing. She believes that certain improper evidence resulted in the defense
verdict, and she challenges several of the trial court’s rulings. We find the
trial court did not abuse the wide and sound discretion afforded to trial
judges in these types of evidentiary rulings, and we affirm.
This case arose from a collision
between a motorcycle driven by the decedent, Jose Alberto Soto Santiago
(“motorcycle driver”), and a truck driven by the defendant, Daniel Hernandez
(“truck driver”), resulting in the death of Santiago. During trial, the trial
court permitted the introduction of the following evidence over the plaintiff’s
objection: 1) witness testimony regarding the speed the decedent motorcycle
driver traveled on his motorcycle in the moments preceding the accident; 2)
evidence of the weight of the truck, which was used by the defense expert to
calculate the motorcycle’s speed at impact; and 3) statements the motorcycle
driver’s child made to a psychotherapist regarding an argument between the
decedent and his girlfriend shortly before the accident.
between a motorcycle driven by the decedent, Jose Alberto Soto Santiago
(“motorcycle driver”), and a truck driven by the defendant, Daniel Hernandez
(“truck driver”), resulting in the death of Santiago. During trial, the trial
court permitted the introduction of the following evidence over the plaintiff’s
objection: 1) witness testimony regarding the speed the decedent motorcycle
driver traveled on his motorcycle in the moments preceding the accident; 2)
evidence of the weight of the truck, which was used by the defense expert to
calculate the motorcycle’s speed at impact; and 3) statements the motorcycle
driver’s child made to a psychotherapist regarding an argument between the
decedent and his girlfriend shortly before the accident.
“A trial court has wide discretion
in determining the admissibility of evidence, and, absent an abuse of
discretion, the trial court’s ruling on evidentiary matters will not be
overturned.” Kellner v. David, 140 So. 3d 1042, 1046 (Fla. 5th DCA 2014)
(citation omitted). “The trial court’s discretion, however, is limited by the
rules of evidence.” Wyatt v. State, 183 So. 3d 1081, 1084 (Fla. 4th DCA
2015). “[A] trial court’s decision does not constitute an abuse of discretion
‘unless no reasonable person would take the view adopted by the trial court.’ ”
McCray v. State, 71 So. 3d 848, 862 (Fla. 2011) (quoting Peede v.
State, 955 So. 2d 480, 489 (Fla. 2007)). Stated another way, “[i]f
reasonable men could differ as to the propriety of the action taken by the trial
court, then the action is not unreasonable and there can be no finding of an
abuse of discretion.” Bass v. City of Pembroke Pines, 991 So. 2d 1008,
1011 (Fla. 4th DCA 2008) (citation omitted). We review each of the challenged
evidentiary issues in turn, applying this limited — and very well established
— scope of review.
in determining the admissibility of evidence, and, absent an abuse of
discretion, the trial court’s ruling on evidentiary matters will not be
overturned.” Kellner v. David, 140 So. 3d 1042, 1046 (Fla. 5th DCA 2014)
(citation omitted). “The trial court’s discretion, however, is limited by the
rules of evidence.” Wyatt v. State, 183 So. 3d 1081, 1084 (Fla. 4th DCA
2015). “[A] trial court’s decision does not constitute an abuse of discretion
‘unless no reasonable person would take the view adopted by the trial court.’ ”
McCray v. State, 71 So. 3d 848, 862 (Fla. 2011) (quoting Peede v.
State, 955 So. 2d 480, 489 (Fla. 2007)). Stated another way, “[i]f
reasonable men could differ as to the propriety of the action taken by the trial
court, then the action is not unreasonable and there can be no finding of an
abuse of discretion.” Bass v. City of Pembroke Pines, 991 So. 2d 1008,
1011 (Fla. 4th DCA 2008) (citation omitted). We review each of the challenged
evidentiary issues in turn, applying this limited — and very well established
— scope of review.
Testimony
Regarding Speed of Motorcycle
Regarding Speed of Motorcycle
Before trial, the plaintiff moved in
limine to exclude the testimony of three witnesses the defense had listed but
who did not actually see the accident, arguing that their testimony was not
relevant, and that if it was, any probative value was substantially outweighed
by the prejudicial effect of the testimony. The trial court deferred ruling on
one witness, and denied the motion without prejudice with respect to the other
witnesses.
limine to exclude the testimony of three witnesses the defense had listed but
who did not actually see the accident, arguing that their testimony was not
relevant, and that if it was, any probative value was substantially outweighed
by the prejudicial effect of the testimony. The trial court deferred ruling on
one witness, and denied the motion without prejudice with respect to the other
witnesses.
One of the witnesses testified at
trial that he had operated motorcycles since 1980. Based on his familiarity
with motorcycles, he could tell the difference between the sounds emitted by
the engines of a Japanese motorcycle and a Harley Davidson. A Harley Davidson
engine has a distinct sound which has been patented.
trial that he had operated motorcycles since 1980. Based on his familiarity
with motorcycles, he could tell the difference between the sounds emitted by
the engines of a Japanese motorcycle and a Harley Davidson. A Harley Davidson
engine has a distinct sound which has been patented.
Shortly before the accident, the
witness was sitting in his backyard. A fence blocked his view of the street,
but he heard the sound of a motorcycle engine. Defense counsel asked the
witness what he heard, and he responded, “A motorcycle traveling at a high rate
of speed, revved up.” The court denied plaintiff’s motion for mistrial. During
a voir dire of the witness, he explained that his testimony was based on his
years of experience with hearing motorcycles, and that he did not have any
specialized training in the sounds of motorcycle engines. The court ruled that
the witness may “say based on what he heard and based on his familiarity with
the motorcycles that it was going at a high rate of speed,” but that he may not
“speculate or guess what the speed was.” The witness then testified that he had
previously heard “a Japanese motorcycle rev its engine real high . . . [Y]ou
can hear him going through his gears. And when it’s revving really loud . . .,
that means [it is] traveling at a high rate of speed.” He equated that sound to
the sound he heard the day of the accident. The witness testified that shortly
after he heard the sound of a motorcycle revving its engine, he heard a
“popping” noise, as if the motor shut off. He went to investigate and observed
that a Japanese motorcycle had been involved in an accident.
witness was sitting in his backyard. A fence blocked his view of the street,
but he heard the sound of a motorcycle engine. Defense counsel asked the
witness what he heard, and he responded, “A motorcycle traveling at a high rate
of speed, revved up.” The court denied plaintiff’s motion for mistrial. During
a voir dire of the witness, he explained that his testimony was based on his
years of experience with hearing motorcycles, and that he did not have any
specialized training in the sounds of motorcycle engines. The court ruled that
the witness may “say based on what he heard and based on his familiarity with
the motorcycles that it was going at a high rate of speed,” but that he may not
“speculate or guess what the speed was.” The witness then testified that he had
previously heard “a Japanese motorcycle rev its engine real high . . . [Y]ou
can hear him going through his gears. And when it’s revving really loud . . .,
that means [it is] traveling at a high rate of speed.” He equated that sound to
the sound he heard the day of the accident. The witness testified that shortly
after he heard the sound of a motorcycle revving its engine, he heard a
“popping” noise, as if the motor shut off. He went to investigate and observed
that a Japanese motorcycle had been involved in an accident.
Two other defense witnesses, a
mother and daughter traveling together, encountered the motorcycle and
testified about their observations. The daughter recalled that the “noise of
[the] engine” drew her attention to the motorcycle. The motorcycle was “go[ing]
by really fast” and “cutting off cars.” Within minutes of losing sight of the
motorcycle, she came upon the accident scene. The mother testified that the
motorcycle was “making a very zoom noise, you know, as in accelerating very
quickly,” that the motorcycle driver “sped off very rapidly,” and that he was
traveling at a “much higher” rate of speed than the mother was driving, which
was somewhere between 30 and 45 miles per hour. She and her daughter were so
startled by the motorcycle that they commented to one another regarding “the
noise, the speed, the closeness to our car.” After the motorcycle passed her,
it took between thirty and ninety seconds before she came upon the accident
scene.
mother and daughter traveling together, encountered the motorcycle and
testified about their observations. The daughter recalled that the “noise of
[the] engine” drew her attention to the motorcycle. The motorcycle was “go[ing]
by really fast” and “cutting off cars.” Within minutes of losing sight of the
motorcycle, she came upon the accident scene. The mother testified that the
motorcycle was “making a very zoom noise, you know, as in accelerating very
quickly,” that the motorcycle driver “sped off very rapidly,” and that he was
traveling at a “much higher” rate of speed than the mother was driving, which
was somewhere between 30 and 45 miles per hour. She and her daughter were so
startled by the motorcycle that they commented to one another regarding “the
noise, the speed, the closeness to our car.” After the motorcycle passed her,
it took between thirty and ninety seconds before she came upon the accident
scene.
The parties’ experts disputed the
speed the motorcycle was traveling. The plaintiff’s accident reconstruction
expert testified that the motorcycle driver was traveling an average of
fifty-five miles per hour, but going about sixty miles per hour at the time of
impact. The defense expert opined that the motorcycle driver was going about
ninety to ninety-five miles per hour at the time he braked, but could have been
going faster before that point. He believed the motorcycle was going between
eighty and eighty-five miles per hour at impact.
speed the motorcycle was traveling. The plaintiff’s accident reconstruction
expert testified that the motorcycle driver was traveling an average of
fifty-five miles per hour, but going about sixty miles per hour at the time of
impact. The defense expert opined that the motorcycle driver was going about
ninety to ninety-five miles per hour at the time he braked, but could have been
going faster before that point. He believed the motorcycle was going between
eighty and eighty-five miles per hour at impact.
On appeal, the plaintiff argues that
the three lay witnesses should not have been permitted to testify regarding
their perceptions of the motorcycle’s operation because their observations
before the accident did not correlate to the operation of the motorcycle at the
time of the accident.
the three lay witnesses should not have been permitted to testify regarding
their perceptions of the motorcycle’s operation because their observations
before the accident did not correlate to the operation of the motorcycle at the
time of the accident.
“As a general rule, the decision of
whether to permit evidence of a driver’s conduct at a point some distance from
the scene of the accident is left to the sound discretion of the trial judge.” Russ
v. Iswarin, 429 So. 2d 1237, 1240 (Fla. 2d DCA 1983); see also Hill v.
Sadler, 186 So. 2d 52, 55 (Fla. 2d DCA 1966) (“Whether evidence should be
admitted tending to show the rate of speed of a vehicle at a time and place
other than that at the instant of, or immediately prior to, the accident
depends upon the facts in the particular case, and rests largely in the
discretion of the trial Judge.”). Here, the mother and daughter testified as to
the decedent’s speed somewhere between thirty seconds (according to the mother)
and two minutes at most (according to the daughter) before the accident. The
other witness’s testimony indicates that he heard the motorcycle engine revving
up moments before the accident. The trial court’s determination that the
witnesses’ observations were close enough in time to the accident to be
relevant was within the trial court’s broad discretion. See Russ, 429
So. 2d at 1240-41 (affirming exclusion of testimony regarding erratic driving
more than a mile from accident site and three or four minutes before accident,
but finding court erred in excluding testimony about the driving pattern and
speed only three blocks before the accident); Baynard v. Liberman, 139
So. 2d 485, 487 (Fla. 2d DCA 1962) (finding that witnesses’ testimony that
defendant ran the two red lights south of the intersection where the crash
occurred was relevant).
whether to permit evidence of a driver’s conduct at a point some distance from
the scene of the accident is left to the sound discretion of the trial judge.” Russ
v. Iswarin, 429 So. 2d 1237, 1240 (Fla. 2d DCA 1983); see also Hill v.
Sadler, 186 So. 2d 52, 55 (Fla. 2d DCA 1966) (“Whether evidence should be
admitted tending to show the rate of speed of a vehicle at a time and place
other than that at the instant of, or immediately prior to, the accident
depends upon the facts in the particular case, and rests largely in the
discretion of the trial Judge.”). Here, the mother and daughter testified as to
the decedent’s speed somewhere between thirty seconds (according to the mother)
and two minutes at most (according to the daughter) before the accident. The
other witness’s testimony indicates that he heard the motorcycle engine revving
up moments before the accident. The trial court’s determination that the
witnesses’ observations were close enough in time to the accident to be
relevant was within the trial court’s broad discretion. See Russ, 429
So. 2d at 1240-41 (affirming exclusion of testimony regarding erratic driving
more than a mile from accident site and three or four minutes before accident,
but finding court erred in excluding testimony about the driving pattern and
speed only three blocks before the accident); Baynard v. Liberman, 139
So. 2d 485, 487 (Fla. 2d DCA 1962) (finding that witnesses’ testimony that
defendant ran the two red lights south of the intersection where the crash
occurred was relevant).
With respect to the witness who was
sitting in his backyard, the plaintiff also argues that the trial court erred
in permitting the witness to give what amounted to expert testimony when he
testified that he could determine the speed from the sound of the motorcycle.
This court has elaborated on lay witness opinion testimony:
sitting in his backyard, the plaintiff also argues that the trial court erred
in permitting the witness to give what amounted to expert testimony when he
testified that he could determine the speed from the sound of the motorcycle.
This court has elaborated on lay witness opinion testimony:
“Generally,
a lay witness may not testify in terms of an inference or opinion, because it
usurps the function of the jury. The jury’s function is to determine the
credibility and weight of such testimony.” Floyd v. State, 569 So. 2d
1225, 1231-32 (Fla. 1990) (citation omitted), cert. denied, 501 U.S.
1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991). However, a lay witness is
permitted to testify in the form of an opinion or inference as to what he
perceived if two conditions are met:
a lay witness may not testify in terms of an inference or opinion, because it
usurps the function of the jury. The jury’s function is to determine the
credibility and weight of such testimony.” Floyd v. State, 569 So. 2d
1225, 1231-32 (Fla. 1990) (citation omitted), cert. denied, 501 U.S.
1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991). However, a lay witness is
permitted to testify in the form of an opinion or inference as to what he
perceived if two conditions are met:
(1) The
witness cannot readily, and with equal accuracy and adequacy, communicate what
he has perceived to the trier of fact without testifying in terms of inferences
or opinions and his use of inferences or opinions will not mislead the trier of
fact to the prejudice of the objecting party; and
witness cannot readily, and with equal accuracy and adequacy, communicate what
he has perceived to the trier of fact without testifying in terms of inferences
or opinions and his use of inferences or opinions will not mislead the trier of
fact to the prejudice of the objecting party; and
(2) The
opinions and inferences do not require a special knowledge, skill, experience,
or training.
opinions and inferences do not require a special knowledge, skill, experience,
or training.
§ 90.701,
Fla. Stat. (1991). “Lay witness opinion testimony is admissible if it is within
the ken of an intelligent person with a degree of experience.” Floyd,
569 So. 2d at 1232.
Fla. Stat. (1991). “Lay witness opinion testimony is admissible if it is within
the ken of an intelligent person with a degree of experience.” Floyd,
569 So. 2d at 1232.
Opinion
testimony of a lay witness is only permitted if it is based on what the witness
has personally perceived. § 90.701, Fla. Stat. (1991); Nationwide Mut. Fire
Ins. Co. v. Vosburgh, 480 So. 2d 140 (Fla. 4th DCA 1985). Acceptable lay
opinion testimony typically involves matters such as distance, time, size,
weight, form and identity. Vosburgh, 480 So. 2d at 143. Before lay
opinion testimony can be properly admitted, a predicate must be laid in which
the witness testifies as to the facts or perceptions upon which the opinion is
based. Beck v. Gross, 499 So. 2d 886, 889 (Fla. 2d DCA 1986), rev.
dismissed by 503 So. 2d 327 (Fla. 1987). “[B]efore one can render an
opinion he must have had sufficient opportunity to observe the subject matter
about which his opinion is rendered.” Albers v. Dasho, 355 So. 2d 150,
153 (Fla. 4th DCA), cert. denied, 361 So. 2d 831 (Fla. 1978).
testimony of a lay witness is only permitted if it is based on what the witness
has personally perceived. § 90.701, Fla. Stat. (1991); Nationwide Mut. Fire
Ins. Co. v. Vosburgh, 480 So. 2d 140 (Fla. 4th DCA 1985). Acceptable lay
opinion testimony typically involves matters such as distance, time, size,
weight, form and identity. Vosburgh, 480 So. 2d at 143. Before lay
opinion testimony can be properly admitted, a predicate must be laid in which
the witness testifies as to the facts or perceptions upon which the opinion is
based. Beck v. Gross, 499 So. 2d 886, 889 (Fla. 2d DCA 1986), rev.
dismissed by 503 So. 2d 327 (Fla. 1987). “[B]efore one can render an
opinion he must have had sufficient opportunity to observe the subject matter
about which his opinion is rendered.” Albers v. Dasho, 355 So. 2d 150,
153 (Fla. 4th DCA), cert. denied, 361 So. 2d 831 (Fla. 1978).
Fino v. Nodine, 646 So. 2d 746, 748-49 (Fla. 4th DCA 1994) (alteration in
original) (footnote omitted); see also § 90.701, Fla. Stat. (2015).
original) (footnote omitted); see also § 90.701, Fla. Stat. (2015).
This court has recognized that a
vehicle’s speed “is generally viewed as a matter of common observation rather
than expert opinion, and it is well settled that any person of ordinary ability
and intelligence having the means or opportunity of observation is
competent to testify to the rate of speed of such a moving object.” Lewek v.
State, 702 So. 2d 527, 532 (Fla. 4th DCA 1997) (citation omitted). The
subtle twist in this case, of course, is that the witness testified to a “high
rate of speed” based on sound rather than sight.
vehicle’s speed “is generally viewed as a matter of common observation rather
than expert opinion, and it is well settled that any person of ordinary ability
and intelligence having the means or opportunity of observation is
competent to testify to the rate of speed of such a moving object.” Lewek v.
State, 702 So. 2d 527, 532 (Fla. 4th DCA 1997) (citation omitted). The
subtle twist in this case, of course, is that the witness testified to a “high
rate of speed” based on sound rather than sight.
Although the witness’s testimony was
based on sound rather than sight, his opinion was based on his personal
ordinary experience hearing the sounds that Japanese and non-Japanese
motorcycle engines make when a driver accelerates. The witness’s testimony was
not based on a methodology requiring something beyond everyday reasoning. That
makes this case akin to L.L. v. State, 189 So. 3d 252, 259 (Fla. 3d DCA
2016) (finding no error in law enforcement officer’s lay opinion testimony that
substance was marijuana, where the opinion was based on officer’s personal
knowledge gleaned from his ordinary police experience and his reasoning process
did not involve a methodology beyond his ordinary reasoning). To the extent
that the plaintiff is arguing that witnesses cannot testify about the
significance of sounds they heard, this argument is not consistent with the
statute governing lay opinion testimony, which permits a witness to testify as
to what he has personally perceived. See § 90.701, Fla. Stat. (2015).
The statute does not limit perception to visual perception. Id. Indeed,
in L.L., the officer’s opinion was based in part on the odor of the
substance. L.L., 189 So. 3d at 259-60 (“Officer Munecas’s testimony was
admissible lay opinion testimony under Section 90.701 because it was based on
sufficient personal knowledge and his senses of sight and smell . . . .”). We
find that the trial court did not abuse its broad discretion in permitting the
witnesses’ testimony regarding the speed of the motorcycle.
based on sound rather than sight, his opinion was based on his personal
ordinary experience hearing the sounds that Japanese and non-Japanese
motorcycle engines make when a driver accelerates. The witness’s testimony was
not based on a methodology requiring something beyond everyday reasoning. That
makes this case akin to L.L. v. State, 189 So. 3d 252, 259 (Fla. 3d DCA
2016) (finding no error in law enforcement officer’s lay opinion testimony that
substance was marijuana, where the opinion was based on officer’s personal
knowledge gleaned from his ordinary police experience and his reasoning process
did not involve a methodology beyond his ordinary reasoning). To the extent
that the plaintiff is arguing that witnesses cannot testify about the
significance of sounds they heard, this argument is not consistent with the
statute governing lay opinion testimony, which permits a witness to testify as
to what he has personally perceived. See § 90.701, Fla. Stat. (2015).
The statute does not limit perception to visual perception. Id. Indeed,
in L.L., the officer’s opinion was based in part on the odor of the
substance. L.L., 189 So. 3d at 259-60 (“Officer Munecas’s testimony was
admissible lay opinion testimony under Section 90.701 because it was based on
sufficient personal knowledge and his senses of sight and smell . . . .”). We
find that the trial court did not abuse its broad discretion in permitting the
witnesses’ testimony regarding the speed of the motorcycle.
Evidence
of Truck’s Weight
of Truck’s Weight
Before trial, the defense arranged
for the weighing of the truck driven by the defendant truck driver during the
accident. A receipt of the weigh-in was made, reflecting the weight of the
truck. Shortly before trial, the defense noticed its intent to seek admission
of the weight receipt into evidence and filed an affidavit by the person who
weighed the truck, attesting to the creation of the receipt.1 The plaintiff did not file an
objection. During trial, the weight receipt was admitted into evidence over
plaintiff’s “foundation” and “hearsay” objections. The defense expert testified
at trial that he used the weight of the truck in calculating the speed the
motorcycle was traveling.
for the weighing of the truck driven by the defendant truck driver during the
accident. A receipt of the weigh-in was made, reflecting the weight of the
truck. Shortly before trial, the defense noticed its intent to seek admission
of the weight receipt into evidence and filed an affidavit by the person who
weighed the truck, attesting to the creation of the receipt.1 The plaintiff did not file an
objection. During trial, the weight receipt was admitted into evidence over
plaintiff’s “foundation” and “hearsay” objections. The defense expert testified
at trial that he used the weight of the truck in calculating the speed the
motorcycle was traveling.
In her initial brief, the plaintiff
argues that the weight receipt should not have been admitted based on the
affidavit, because the affidavit was filed shortly before trial and the defense
did not make the evidence available for inspection, in violation of section
90.803(6)(c), Florida Statutes. However, the defense provided notice of its
intent to rely on the affidavit in its “Trial Brief”2 filing and thus complied with section
90.803(6)(c). The plaintiff waived any objection to admission of the evidence
by not filing an objection to the defendant’s notice. Additionally, the
plaintiff does not dispute that she was aware of the weight receipt well before
trial. We find that the plaintiff has not established that the trial court
abused its broad discretion in admitting the weight receipt into evidence and
permitting testimony based on the weight receipt.
argues that the weight receipt should not have been admitted based on the
affidavit, because the affidavit was filed shortly before trial and the defense
did not make the evidence available for inspection, in violation of section
90.803(6)(c), Florida Statutes. However, the defense provided notice of its
intent to rely on the affidavit in its “Trial Brief”2 filing and thus complied with section
90.803(6)(c). The plaintiff waived any objection to admission of the evidence
by not filing an objection to the defendant’s notice. Additionally, the
plaintiff does not dispute that she was aware of the weight receipt well before
trial. We find that the plaintiff has not established that the trial court
abused its broad discretion in admitting the weight receipt into evidence and
permitting testimony based on the weight receipt.
Testimony
Regarding Statements Made by
Regarding Statements Made by
Decedent’s
Child to Psychotherapist
Child to Psychotherapist
The plaintiff’s suit sought damages
for “pain and suffering” on behalf of the two children who survived the
motorcycle driver. The trial court entered an agreed order which granted the
defense motion to compel production of records from a psychotherapist who had
treated one of the children. Subsequently, the plaintiff listed the records as
a trial exhibit. In a joint trial exhibit list with objections filed by the
parties, the plaintiff indicated that she had no objection to the defense
admitting the records and deposition transcripts related to the child’s
treatment.
for “pain and suffering” on behalf of the two children who survived the
motorcycle driver. The trial court entered an agreed order which granted the
defense motion to compel production of records from a psychotherapist who had
treated one of the children. Subsequently, the plaintiff listed the records as
a trial exhibit. In a joint trial exhibit list with objections filed by the
parties, the plaintiff indicated that she had no objection to the defense
admitting the records and deposition transcripts related to the child’s
treatment.
During trial, plaintiff’s counsel
stated that she was no longer seeking mental anguish damages and thus the
psychotherapist privilege should be reinstated.3 Inexplicably, however, she requested
the jury be instructed on pain and suffering. The trial court ruled that the
therapist’s records were admissible as the plaintiff sought an instruction on
pain and suffering.
stated that she was no longer seeking mental anguish damages and thus the
psychotherapist privilege should be reinstated.3 Inexplicably, however, she requested
the jury be instructed on pain and suffering. The trial court ruled that the
therapist’s records were admissible as the plaintiff sought an instruction on
pain and suffering.
During closing argument, the defense
asserted that the child told his therapist that he blamed his father’s
girlfriend for the accident, because she and the decedent argued before the
decedent left the house, and that the decedent drove recklessly because he was
blowing off steam after the argument. The jury was instructed on pain and
suffering damages.
asserted that the child told his therapist that he blamed his father’s
girlfriend for the accident, because she and the decedent argued before the
decedent left the house, and that the decedent drove recklessly because he was
blowing off steam after the argument. The jury was instructed on pain and
suffering damages.
The plaintiff argues that the trial
court should have restored the psychotherapist privilege once she withdrew the
claim for pain and suffering damages, as her other claims did not relate to
mental injury.
court should have restored the psychotherapist privilege once she withdrew the
claim for pain and suffering damages, as her other claims did not relate to
mental injury.
Section 90.503(2), Florida Statutes
(2015), provides the following in pertinent part:
(2015), provides the following in pertinent part:
A patient
has a privilege to refuse to disclose, and to prevent any other person from
disclosing, confidential communications or records made for the purpose of
diagnosis or treatment of the patient’s mental or emotional condition . . .
between the patient and the psychotherapist, or persons who are participating
in the diagnosis or treatment under the direction of the psychotherapist. This
privilege includes any diagnosis made, and advice given, by the psychotherapist
in the course of that relationship.
has a privilege to refuse to disclose, and to prevent any other person from
disclosing, confidential communications or records made for the purpose of
diagnosis or treatment of the patient’s mental or emotional condition . . .
between the patient and the psychotherapist, or persons who are participating
in the diagnosis or treatment under the direction of the psychotherapist. This
privilege includes any diagnosis made, and advice given, by the psychotherapist
in the course of that relationship.
The privilege may be claimed by,
among other persons, the patient or the patient’s attorney on the patient’s behalf.
§ 90.503(3)(a), Fla. Stat. (2015). The statute further provides that the
privilege does not apply to “communications relevant to an issue of the mental
or emotional condition of the patient in any proceeding in which the patient
relies upon the condition as an element of his or her claim or defense.” §
90.503(4)(c), Fla. Stat. (2015).
among other persons, the patient or the patient’s attorney on the patient’s behalf.
§ 90.503(3)(a), Fla. Stat. (2015). The statute further provides that the
privilege does not apply to “communications relevant to an issue of the mental
or emotional condition of the patient in any proceeding in which the patient
relies upon the condition as an element of his or her claim or defense.” §
90.503(4)(c), Fla. Stat. (2015).
Section 90.507, Florida Statutes
(2015), governs waiver of privileges by voluntary disclosure and provides in
pertinent part:
(2015), governs waiver of privileges by voluntary disclosure and provides in
pertinent part:
A person
who has a privilege against the disclosure of a confidential matter or
communication waives the privilege if the person . . . consents to disclosure
of, any significant part of the matter or communication.
who has a privilege against the disclosure of a confidential matter or
communication waives the privilege if the person . . . consents to disclosure
of, any significant part of the matter or communication.
The waiver of the psychotherapist
privilege is not irrevocable. See Garbacik v. Wal-Mart Transp., LLC, 932
So. 2d 500, 503 (Fla. 5th DCA 2006); Sykes ex rel. Sykes v. St. Andrew’s
Sch., 619 So. 2d 467, 469 (Fla. 4th DCA 1993). However, a revocation of a
waiver will not reinstate the privilege as to already disclosed information. See
Bolin v. State, 793 So. 2d 894, 898 (Fla. 2001) (recognizing that
“information revealed after a privilege is waived cannot be concealed by
reinvoking the privilege”); Hamilton v. Hamilton Steel Corp., 409 So. 2d
1111, 1114 (Fla. 4th DCA 1982) (“It is black letter law that once the privilege
is waived, and the horse out of the barn, it cannot be reinvoked.”).
privilege is not irrevocable. See Garbacik v. Wal-Mart Transp., LLC, 932
So. 2d 500, 503 (Fla. 5th DCA 2006); Sykes ex rel. Sykes v. St. Andrew’s
Sch., 619 So. 2d 467, 469 (Fla. 4th DCA 1993). However, a revocation of a
waiver will not reinstate the privilege as to already disclosed information. See
Bolin v. State, 793 So. 2d 894, 898 (Fla. 2001) (recognizing that
“information revealed after a privilege is waived cannot be concealed by
reinvoking the privilege”); Hamilton v. Hamilton Steel Corp., 409 So. 2d
1111, 1114 (Fla. 4th DCA 1982) (“It is black letter law that once the privilege
is waived, and the horse out of the barn, it cannot be reinvoked.”).
The parties do not dispute that the
plaintiff initially put the son’s mental condition at issue. Additionally, the
record indicates that the plaintiff did not actually withdraw the claim, as she
requested a jury instruction on pain and suffering. Even if the plaintiff
withdrew the claim in the midst of trial, this would not reinstate the
privilege as to records already disclosed. As such, the trial court did not
abuse its broad discretion in admitting the records and allowing testimony
regarding the records.
plaintiff initially put the son’s mental condition at issue. Additionally, the
record indicates that the plaintiff did not actually withdraw the claim, as she
requested a jury instruction on pain and suffering. Even if the plaintiff
withdrew the claim in the midst of trial, this would not reinstate the
privilege as to records already disclosed. As such, the trial court did not
abuse its broad discretion in admitting the records and allowing testimony
regarding the records.
We find that under the abuse of
discretion standard of review, the plaintiff has not established error, and we
affirm.
discretion standard of review, the plaintiff has not established error, and we
affirm.
Affirmed. (TAYLOR and MAY, JJ., concur.)
__________________
1Section
90.803(6)(c), Florida Statutes (2015), provides in pertinent part:
90.803(6)(c), Florida Statutes (2015), provides in pertinent part:
A party
intending to offer evidence [of a business record] by means of a certification
or declaration shall serve reasonable written notice of that intention upon
every other party and shall make the evidence available for inspection
sufficiently in advance of its offer in evidence to provide to any other party
a fair opportunity to challenge the admissibility of the evidence. . . . A
motion opposing the admissibility of such evidence must be made by the opposing
party and determined by the court before trial. A party’s failure to file such
a motion before trial constitutes a waiver of objection to the evidence, but
the court for good cause shown may grant relief from the waiver.
intending to offer evidence [of a business record] by means of a certification
or declaration shall serve reasonable written notice of that intention upon
every other party and shall make the evidence available for inspection
sufficiently in advance of its offer in evidence to provide to any other party
a fair opportunity to challenge the admissibility of the evidence. . . . A
motion opposing the admissibility of such evidence must be made by the opposing
party and determined by the court before trial. A party’s failure to file such
a motion before trial constitutes a waiver of objection to the evidence, but
the court for good cause shown may grant relief from the waiver.
2It does
not appear that the “Trial Brief” was filed in response to any order entered by
the trial court. In any event, the plaintiff does not argue on appeal that the
notice was defective based on the manner in which it was provided, other than
to complain that it was provided shortly before trial. On the record before us,
we are not able to find that the notice was not “reasonable” notice. See §
90.803(6)(c), Fla. Stat.
not appear that the “Trial Brief” was filed in response to any order entered by
the trial court. In any event, the plaintiff does not argue on appeal that the
notice was defective based on the manner in which it was provided, other than
to complain that it was provided shortly before trial. On the record before us,
we are not able to find that the notice was not “reasonable” notice. See §
90.803(6)(c), Fla. Stat.
3As
discussed further below, the privilege does not apply insofar as communications
between a psychotherapist and the patient regarding the patient’s mental or
emotional condition are related to a patient’s claim or defense in any
proceeding.
discussed further below, the privilege does not apply insofar as communications
between a psychotherapist and the patient regarding the patient’s mental or
emotional condition are related to a patient’s claim or defense in any
proceeding.
* * *