FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Sumter County, Daniel B. Merritt,
Michael M. Brownlee, of The Brownlee Law Firm, P.A., Orlando,
Kristin A. Norse, Stuart C. Markman, of Kynes, Markman &
Felman, P.A., Tampa, for Appellees.
DOHERTY, P.A., ASSOCIATE JUDGE.
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.
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.
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.
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)).
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.
following hearsay exceptions to the Florida Evidence Code
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 ...