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Strong v. Underwood

Florida Court of Appeals, Fifth District

June 21, 2019

KATHERINE STRONG, Appellant,
v.
CYNTHIA UNDERWOOD AND STEPHEN R. UNDERWOOD, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Sumter County, Daniel B. Merritt, Sr., Judge.

          Michael M. Brownlee, of The Brownlee Law Firm, P.A., Orlando, for Appellant.

          Kristin A. Norse, Stuart C. Markman, of Kynes, Markman & Felman, P.A., Tampa, for Appellees.

          DOHERTY, P.A., ASSOCIATE JUDGE.

         On July 11, 2010, Cynthia Underwood was driving her motorcycle when she collided with a sport utility vehicle driven by Katherine Strong. Mrs. Underwood and her husband, Stephen R. Underwood, sued Ms. Strong, alleging that Ms. Strong had negligently operated her vehicle, thereby causing the collision and severely injuring Mrs. Underwood. Mr. Underwood sought loss of consortium damages. The case proceeded to trial solely on the issue of liability. The jury found Ms. Strong fifty percent at fault. She raises several issues on appeal, one of which is dispositive. We agree with Ms. Strong that the trial court erred in refusing to admit a medical record containing a statement made by Mrs. Underwood to her treating physician concerning how the accident occurred. We reverse for a new trial on liability.

         At trial, the parties vigorously contested liability, with each asserting the other caused the accident by crossing the road's center line. In support of her position, Ms. Strong sought to admit a medical record from one of Mrs. Underwood's treating physicians, Dr. Michael Cheatham. During a pretrial deposition, Dr. Cheatham testified that according to his medical record, he examined Mrs. Underwood the day after the accident. At that time, he recorded the following entry in the medical record:

Ms. Underwood is a 44-year-old white female who was the helmeted rider of a motorcycle that was involved in a crash yesterday. She states that one of the tires on her motorcycle blew, and she collided head-on with the SUV at an unknown rate of speed.

         Dr. Cheatham had no independent recollection of Mrs. Underwood or his conversation with her. He agreed the statement could have been made directly to him or one of several other doctors and that it was "more likely than not" that Mrs. Underwood made the statement to a member of the trauma team. In any event, Dr. Cheatham testified that he would not normally write "'she states' unless a patient . . . verbalize[d] [the statement] to" him. The trial court excluded the statement as inadmissible hearsay, finding the source of the statement was unknown. As a result, Dr. Cheatham did not testify at trial and neither the statement nor the medical record was introduced at trial.

         This Court reviews a trial court's decision on the admissibility of testimony under an abuse of discretion standard. Dorsey v. Reddy, 931 So.2d 259, 266 (Fla. 5th DCA 2006). That discretion, however, is limited by the rules of evidence. Bank of N.Y. Mellon v. Johnson, 185 So.3d 594, 597 (Fla. 5th DCA 2016). Furthermore, "the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review." Deutsche Bank Nat'l Tr. Co. v. Alaqua Prop., 190 So.3d 662, 664 (Fla. 5th DCA 2016) (quoting Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006)).

         Ms. Strong argues that Mrs. Underwood's statement should have been admissible as the admission of a party-opponent contained in a business record. She further argues the source of the statement was known because the medical record indicates the statement came from Mrs. Underwood. We agree.

         The following hearsay exceptions to the Florida Evidence Code apply:

90.803 Hearsay exceptions; availability of declarant immaterial.-The provisions of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the ...

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