TRIAL COURT ERRONEOUSLY GRANTED A NEW TRIAL THINKING ONE OF ITS EVIDENTIARY RULINGS WAS WRONG, WHEN IT ACTUALLY WAS RIGHT
Emmitt v. First Transit, Inc. 45 Fla. L Weekly D1744 (Fla. 4th DCA July 22, 2020):
The plaintiff was injured falling off a trolley. Before filing suit, plaintiff asserted that the defendant’s trolley had “jolted” as she was exiting it. However, after the defendant provided surveillance video showing the trolley had completely stopped before plaintiff stepped off, when the plaintiff filed her suit, she alleged instead that she had fallen because the defendant had failed to properly clean, maintain, and inspect the steps of the trolley.
The court conducted a bifurcated trial, and plaintiff moved in limine to prohibit the defendant from using the plaintiff’s medical records to impeach the plaintiff about what caused her to fall. In one of those records, plaintiff told one of her doctors that as she was stepping off the trolley, the driver jerked the trolley and caused her to fall.
The defendant argued this hearsay statement was admissible under §90.803(4) as a statement for purpose of medical diagnosis or treatment. While the court rejected that argument, and would not allow the statement to be used as substantive evidence (without the doctor testifying that the statement was made for the purpose of diagnosis), it ruled it could be used for impeachment.
Near the end of trial, the parties stipulated—and the court read to the jury–that there was no allegation or evidence that a jolt caused the plaintiff to fall.
The jury reached a verdict for the plaintiff, finding the defendant 80% responsible and the plaintiff 20% responsible. The trial court granted defendant’s motion for new trial, reasoning that the defendant’s inability to establish that the plaintiff’s statement was admissible hearsay for the purposes of medical diagnosis or treatment or under the business record exception did not preclude the admissibility of the statement as an admission of a party. This was an argument that defendant made for the first time.
The Fourth District reversed. Pursuant to §90.104(1)(b), it is error for the trial court to grant a new trial, unless the trial judge concludes that a party’s substantial rights were adversely affected by the exclusion of the evidence (which the trial court did not find).
The court admonished that the defendant had conflated substantive evidence with impeachment evidence, and ruled that the trial court had properly allowed the inconsistent statement as impeachment to attack the plaintiff’s credibility.
In light of the stipulation that defendant insisted be read at trial, there was no evidence that the plaintiff fell because the trolley jolted, thereby making it inconsistent for the defendant to argue on appeal that the trial court’s refusal to admit that the plaintiff’s statement in the medical record as substantive evidence mattered or was error. Because there was no erroneous evidentiary ruling, it was error to grant the new trial, and the court reversed to reinstate jury’s verdict.