final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 16-20382 Daryl E. Trawick, Judge.
Trybus Kwavnick Peets, PLC, and Warren B. Kwavnick (Fort
Lauderdale), for appellant.
O. Cervantes, for appellee.
EMAS, C.J., and SALTER and LOBREE, JJ.
Kratz ("Ms. Kratz"), the prevailing defendant after
a jury trial in a motor vehicle negligence case brought
against her by Abdelmajid Daou ("Mr. Daou"),
appeals an order granting Mr. Daou's motion for a new
trial and vacating the adverse final judgment. The complaint
in the case alleged that Mr. Daou, a valet for arriving and
departing vehicles at a Miami condominium, was injured by Ms.
Kratz as she backed her car and struck Mr. Daou. At trial,
the jury found that Ms. Kratz was not negligent and returned
a verdict in her favor.
Daou argued, and the trial court agreed, that a new trial was
warranted "due to the admission of inadmissible hearsay
statements at trial," and defense counsel's
cross-examination of Mr. Daou by reading "statements
from [Mr. Daou's] medical records solely for the purpose
of impeaching [Mr. Daou]." The medical records themselves
were not admitted into evidence during the course of the
trial court's order relied on reported opinions in
Visconti v. Hollywood Rental Service, 580 So.2d 197
(Fla. 4th DCA 1991) and Saul v. John D. and Catherine T.
MacArthur Foundation, 499 So.2d 917 (Fla. 4th DCA 1986),
for the propositions that "hearsay statements contained
in medical records are inadmissible unless the statements
were made for the purpose of medical diagnosis or treatment,
or if the medical records were properly admitted as business
records," and "[s]tatements contained in medical
records used solely for impeachment are not admissible."
(Order, n.1 below).
constrained to reverse the order granting a new trial and
reinstate the final judgment. Although a motion in limine was
filed before trial by Mr. Daou to exclude as inadmissible
hearsay at trial "all patient statements, narratives,
and oral histories" regarding the accident, there was no
definitive written or transcribed ruling granting the motion.
After colloquy and argument of counsel regarding the pretrial
motion, the trial court denied the motion for the time being,
directing counsel to provide "the precise statements
that we're referring to before you offer them in."
trial, Ms. Kratz's counsel vigorously cross-examined Mr.
Daou about statements he made regarding his alleged injuries
(1) in the emergency room where he was taken after the
incident, (2) to medical staff he consulted later regarding
treatment and worker's compensation, and (3) in his sworn
answers to interrogatories. These questions and answers were
completed, with some seven pages of trial transcript
thereafter, before Mr. Daou's trial counsel made an
objection, "this is motion limine [sic], improper
further colloquy by counsel for the parties and consideration
of case law, the trial court overruled the objection,
concluding that the questions were not directed to causation
of the accident but instead "to impeach and to determine
the credibility of the witness." Concerned regarding the
way the questioning was being conducted, however, the trial
court instructed Ms. Kratz's counsel "to preface
your questioning by making it clear that you're referring
to medical records," and that "these aren't
necessarily sworn statements." Thereafter, an
independent medical examiner, Dr. Sher, testified regarding
his examination of Mr. Daou, and defense counsel questioned
him regarding Mr. Daou's initial statements regarding the
accident and his alleged injuries.
the trial resumed the following day, Mr. Daou's counsel
moved for a mistrial based on opposing counsel's
cross-examination and apparent references to the medical
records and statements attributed to Mr. Daou. The trial
court observed that the objections were raised belatedly but
heard argument on the motion before denying it. The court
noted that the questions at issue "were permitted
pursuant to our discussions both pre-trial and at
sidebar." Mr. Daou's counsel did not seek to
preclude Ms. Kratz's counsel from referring further
(during closing argument) to the cross-examinations at issue,
and her counsel did make such references during his closing,
with no objection interposed.
the defense verdict, Mr. Daou filed a timely motion for new
trial which was ...