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Cardona v. The Mason and Dixon Lines, Inc.

United States District Court, S.D. Florida

May 31, 2017

ALBA CARDONA, Plaintiff,
v.
THE MASON AND DIXON LINES, INCORPORATED, et al., Defendants.

          ORDER

          JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         THIS 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, 3/27/17).[1]

         ANALYSIS

         1. Florida Traffic Crash Report

         This 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[2] 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.[3]

         The 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. 1984)).

         The 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).

         In 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).

         The 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.”).

         Under 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.

         Fla. 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.

         Officer 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 ...


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