United States District Court, S.D. Florida
J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE.
MATTER came before the Court on the Defendants' Motion
in Limine Regarding the Florida Traffic Crash Report
(DE# 61, 1/9/17) and the Defendants' Motion to Strike
Plaintiff's Expert Witnesses (DE# 82,
Florida Traffic Crash Report
action arises from a vehicular accident which took place on
July 19, 2013 when the truck driven by defendant Timothy
Leverette collided with the plaintiff's car. The
defendants seek to exclude portions of the accident
report prepared by Trooper H.E. Gracey of the
Florida Highway Patrol, who responded to the accident.
See Motion in Limine Regarding the Florida
Traffic Crash Report (DE# 61, 1/9/17). The defendants argue
that “the narrative contained in the accident
report” should be excluded as inadmissible hearsay
under Fed.R.Evid. 802 because Trooper Gracey did not observe
the accident and therefore, necessarily relied on statements
of witnesses in drafting the narrative. Id. at 1, 5.
The defendants further argue that Trooper Gracey's
“opinions and legal conclusions, including estimates of
damage to the vehicles involved, speculations regarding the
drivers' actions and whether or not each drivers'
actions contributed to the accident” should be excluded
as unduly prejudicial under Fed.R.Evid. 403 because they are
“speculative and not findings of fact.”
Id. at 5.
plaintiff maintains that the narrative should not be excluded
because Trooper Gracey was already on the scene by the time
Mr. Leverette's truck came to a stop and therefore
“it is entirely possible that Trooper Gracey actually
witnessed the incident.” Response (DE# 80 at 3). The
plaintiff noted that Trooper Gracey did not appear for
deposition. Therefore, the plaintiff has not established that
Trooper Gracey in fact witnessed the accident. The plaintiff
also argues that “[s]kid marks are an effective
indicator of what lane vehicles are in at the time of
accidents, and also of which vehicle was intruding on the
other's lane of travel at the time of impact.”
NEGLIGENT MANNER.” See Updated Report (DE# 1-4
at 14) (capitalization in original). The plaintiff
characterizes this change in the updated report as a clerical
error. Response (DE# 80 at 2-3). However, the plaintiff does
not cite to any portion of the report indicating that Officer
Gracey observed skid marks on the highway. The plaintiff also
relies on Fla. Stat. §316.066, Florida's accident
report privilege, for the proposition that “[t]he
privilege does not preclude admission of the tangible
evidence of an automobile accident, such as ‘location
of accident, vehicles' locations, skidmarks, damage to
vehicles, all observed by the investigating officer. . . .
All this information ordinarily appears on the accident
report prepared by the investigating police officer and it is
clearly admissible at trial.'” Id. at 4-5
(quoting Brackin v. Boles, 452 So.2d 540, 544 (Fla.
plaintiff further argues that the defendants have waived the
issue of admissibility of the accident report because the
defendants' accident reconstructionist relied on the
accident report in forming her opinions. Response (DE# 80 at
3). The plaintiff also argues that the defendants opened the
door to this evidence by providing it to their accident
reconstructionist. Id. at 5. This argument lacks
merit because it is entirely reasonable, and indeed expected,
for an accident reconstructionist to review the accident
report in formulating her opinions. See Knight through
Kerr v. Miami-Dade Cty., No. 15-10687, 2017 WL 1755573,
at *6 (11th Cir. May 5, 2017) (stating “we have long
recognized, an expert may rely on hearsay evidence as part of
the foundation for his opinion so long as the hearsay
evidence is the type of evidence reasonably relied upon by
experts in the particular field in forming opinions or
inferences on the subject.”) (citation and internal
quotation marks omitted).
their reply, the defendants add that “crash report
diagrams based on the observations and statements of persons
other than the reporting officer are [also] improper.”
Reply (DE# 81 at 2).
parties are in agreement that Florida's accident report
privilege applies to the instant case. See Response
(DE# 80 at 4); Reply (DE# 81 at 2) (stating that
“Florida law . . . restricts the admissibility of crash
reports, in that reports and statements made by a person
involved in a crash to a law enforcement officer for the
purpose of completing a crash report may not be used as
evidence in any trial.”).
the accident report privilege:
[E]ach crash report made by a person involved in a crash and
any statement made by such person to a law enforcement
officer for the purpose of completing a crash report required
by this section shall be without prejudice to the individual
so reporting. Such report or statement may not be used as
evidence in any trial, civil or criminal.
Stat. §316.066(4). Accordingly, the portions of the
crash report and the updated crash report which are based on
the statements and observations of individuals involved in
the crash (including the diagrams) are excluded from the
evidence presented at trial. See Hammond v. Jim Hinton
Oil Co., 530 So.2d 995, 997 (Fla. 1st DCA 1988) (stating
that “[b]ecause some of the information used to
construct the diagrams was not based on first-hand knowledge
and was based in part on the testimony of a driver of one of
the vehicles involved in the accident, the diagrams were
privileged under § 316.066 and it was error to admit
them into evidence.”). Estimates of damage to the
vehicles are within Trooper Gracey's observations and
therefore not excluded from trial.
Gracey's assessment of fault for the accident is excluded
as unduly prejudicial under Rule 403. See Angelucci v.
Gov't Employees Ins. Co., 412 F.App'x 206, 210
(11th Cir. 2011) (noting that “Florida courts have
observed that ...