Hearsay is information received from others that can’t be adequately substantiated first-hand. Such evidence is barred in both civil and criminal proceedings.
According to court records in Andreaus v. Impact Pest Management, 71-year-old plaintiff was reportedly injured when she slipped and fell as she exited the elevator at a condominium complex. She and her husband sued the association as well as the company contracted to do pest control for the association. The assertion was the foreign substance on which she slipped was pesticide, which had been sprayed on the tile floor just outside the elevator.
Before trial started, plaintiff filed a motion to exclude any mention on her own medical report indicating she slipped on water. It was true her medical records contained statements to that effect, but no one could pinpoint the source of those statements. Defense had no witness they could call to testify to that fact, nor could they even say who wrote them. Plaintiff denied having ever said anything like that.
Trial court decided the statements should not be admitted into evidence and granted plaintiff motion. Her attorneys then reviewed some 1,500 pages of medical records and made redactions that were consistent with the court’s decision. Those redacted versions of the records were then admitted into evidence in the slip-and-fall case.
The case went to trial. Shortly before closing argument, a defense attorney for the pest control company implied certain evidence presented by plaintiffs had been untruthful “in many respects.” Defense counsel then asked for a sidebar and pointed out two references in the medical records to a “spilling of water” and a “spill” had not been caught by the plaintiff’s legal team in their redaction efforts. Plaintiff attorneys did not realize their mistake, and there was no strong evidence introduced that might have suggested there was any other substance present on that floor other than pesticide.
Plaintiff attorneys indicated the error was clerical in nature and objected to any mention of water or a spill, considering such references had been previously deemed inadmissible as hearsay. They requested the opportunity to review the files again and make further redactions in line with the court’s previous order. Defense counsel argued the court should allow comment on the records as they were because they’d already been submitted as evidence.
Trial court sided with defense, stating that because it was already in evidence, plaintiffs would “have to live with it.”
Thus, these statements became a central issue in the case, with defense indicating plaintiff had not been truthful in failing to present the entire circumstance, and plaintiff counsel pointing out the reason it hadn’t been mentioned prior to closing arguments was that no one could say where that statement originated.
Jury returned a verdict favoring defendants.
On appeal, the 2nd DCA noted there was “no question” the trial court abused discretion in allowing the inadmissible evidence to be presented to a jury and further that the error was “extremely prejudicial” to plaintiff’s case. The appellate court further scolded defense attorneys for even asking to introduce evidence already deemed inadmissible.
This was further exacerbated by the fact there was no other evidence presented indicating any other substance was on the floor other than pesticide. Even worse, defense counsel was allowed to suggest plaintiff had been lying throughout the entire trial, when in fact there was no evidence to support the assertion a puddle of water could have caused the fall.
Therefore, the previous verdict was reversed and the case remanded for a new trial.
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Andreaus v. Impact Pest Management,Feb. 6, 2015, Fla 2nd DCA
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