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Client Update – Florida Torts

September 17, 2020
By: John Bond Atkinson, Tiffany A. Bustamante, and Isabel R. Jolicoeur

We hope this Client Update finds you in good health and positive spirits. As we enter the next phase of life under COVID-19, Atkinson, P.A. remains dedicated and available to advise, address, and support your legal concerns.

As always, we will continue to keep you appraised of new issues emerging in the insurance industry and look forward to sharing time with you as we navigate this new normal together. Below are recent, impactful Florida decisions concerning tort claims, we felt may be of interest.


Roberto Aguila and D.E. Pool Tech, LLC, v. Marjorie Frederic, etc., 45 Fla. L. Weekly D2043a (Fla. 3d DCA August 26, 2020).
The Third District Court of Appeals held that where defendant was the driver of vehicle which killed pedestrian, it was a departure from essential requirements of law to compel disclosure of information regarding defendant’s possession and use of a mobile telephone during the time of the crash because the order to compel places defendant under compulsion to incriminate himself in an active criminal investigation in violation of Fifth Amendment privilege against self-incrimination.

Sompun Ruchimora v. Bernice Grullon, 45 Fla. L. Weekly D1675a (Fla. 3d DCA July 15, 2020)
The Third District Court of Appeals concluded that the trial court did not abuse discretion in allowing inference and argument regarding inconsistent statements as to referral to chiropractor for purpose of challenging plaintiff’s credibility because the plaintiff opened door for defendant to challenge plaintiff’s statement that she was referred to chiropractor by hospital.

Shantell Kimberly Emmitt v. First Transit, Inc. d/b/a Trolley 606, 45 Fla. L. Weekly D1745 (Fla. 4th DCA July 22, 2020).
The Fourth District Court of Appeals reasoned that the trial court erred in granting a new trial after concluding that it had improperly denied admission of a medical record containing a statement attributed to plaintiff indicating that the cause of her fall was that the trolley she was riding jolted, which differed from plaintiff’s complaint and trial testimony.

The 4th DCA reasoned that the trial court properly excluded the statement at trial because defendant never sought to admit it as a party admission exception to the hearsay rule. Therefore, defendant’s substantive rights were not violated by exclusion of medical record because the defendant insisted that the jury be read a stipulation in which the parties agreed that there was no evidence that plaintiff fell because the trolley jolted. The 4th DCA concluded that defendant cannot contend on appeal that plaintiff’s statement in the medical record should have been admissible as substantive evidence because the trial court made no erroneous evidentiary rulings during trial, it was error to grant a new trial on that basis.


Roberto Aguila and D.E. Pool Tech, LLC, v. Marjorie Frederic, etc., 45 Fla. L. Weekly D2043a (Fla. 3d DCA August 26, 2020).

In late 2019, Mr. Roberto Aguila (“Mr. Aguila”), while driving a motor vehicle owned by his employer, D.E. Pool Tech, LLC, struck and killed a pedestrian, Rodel Frederic (“Mr. Frederic”) who was traversing a crosswalk. The North Miami Police Department’s traffic homicide investigation continues to remain unresolved.

Marjorie Frederic, the daughter and personal representative of the Estate of her father, Mr. Frederic (the “Estate”), filed a lawsuit for wrongful death against both Mr. Aguila and D.E. Pool Tech, LLC. During discovery, the Estate requested, in the form of interrogatories, if Mr. Aguila had a cellular phone in the vehicle at the time of the crash, and if so, with which carrier. The interrogatories further requested production of cellular telephone logs for the hour surrounding the crash, including all incoming and outgoing calls, emails, and text messages. Mr. Aguila objected to the discovery, asserting his Fifth Amendment privilege against self-incrimination. The trial court overruled Mr. Aguila’s objections and ordered disclosure of the mobile device number and carrier, as well as the production of the telephone log spanning the sixty minutes surrounding the accident. Mr. Aguila appealed.

The Third District Court of Appeal reasoned that compliance with the trial court’s order compelling the disclosure of the telephone number, carrier information, and compendium of data evidencing devise usage requires a concession as to the authenticity of any responsive records. Therefore, the trial court order compels testimonial communication because the compelled disclosures may well “furnish a link in the chain of evidence” necessary to establish Mr. Aguila’s criminal culpability. Maness v. Meyers, 419 U.S. 449 (1975).

Because Mr. Aguila cannot be compelled to bear witness against himself, the Third District Court of Appeal concluded that “the trial court’s order directing petitioner to reveal information regarding [his] cell phone violates petitioner’s Fifth Amendment rights, while [his] criminal case is pending, and constitutes a departure from the essential requirements of law from which petitioner has no adequate remedy on appeal,” Restrepo v. Carrera, 189 So. 3d 1033, 1034 (Fla. 3d DCA 2016), and granting the petition for certiorari and quashed the trial court order under review.

Sompun Ruchimora v. Bernice Grullon, 45 Fla. L. Weekly D1675a (Fla. 3d DCA July 15, 2020).

This personal injury case arose out of motor-vehicle accident, which occurred when Bernice Grullon (“Ms. Grullon”) was operating her vehicle and struck Sompun Ruchimora’s (“Ms. Ruchimora”) vehicle from behind traveling a low speed while the vehicles were exiting the highway. Because the trial court granted partial summary judgment in favor of Ms. Ruchimora finding Ms. Grullon liable, the jury proceeded to determine causation and damages. The jury found that even though the accident caused Ms. Ruchimora’s injuries, she did not suffer permanent injury, thus did not award Ms. Ruchimora pain and suffering damages. After being unsuccessful on a motion for a new trial, Ms. Ruchimora appealed.

On appeal, Ms. Ruchimora argued that the trial court abused its discretion in permitting Ms. Grullon to introduce into evidence interference and argument, which asserted a referral relationship between Ms. Ruchimora’s former attorney and Ms. Ruchimora’s chiropractor, in violation of the attorney-client privilege.

The Third District Court of Appeal reasoned that Ms. Rochimora opened the door for Ms. Grullon to challenge Ms. Rochimora’s credibility in the following instances: (1) during both their opening and closing arguments, Ms. Rochimora’s counsel asserted that the case is a credibility determination for the jury to decide; (2) on direct examination, Ms. Ruchimora’s counsel specifically asked their client who referred her to her chiropractor; and (3) during her case-in-chief, Ms. Ruchimora entered her chiropractor’s letter of protection into evidence, in which she admitted she was presented to her chiropractor from her attorney.

Ms. Ruchimora had testified in her deposition that the ER doctor had referred her to the chiropractor. However, the ER discharge report stated that Ms. Ruchimora had been told to follow up with her primary care provider within 1-2 days. notwithstanding the fact that Ms. Rochimora’s counsel knew that the ER records showed their client was not referred to the chiropractor by the ER doctor, they introduced that very subject in the direct examination of Ms. Ruchimora during her case-in-chief.

During Ms. Grullon’s case, counsel called Ms. Ruchimora to the stand and questioned her as follows:

[DEFENSE COUNSEL]: Didn’t you tell us that a day and a half ago, ma’am, that the hospital gave you the name and address of the chiropractor you went to see?
[DEFENSE COUNSEL]: So you were not sent by the hospital to the chiropractor. You were told to go see somebody else; correct?
[RUCHIMORA]: Someone told me to, but I don’t remember who.
[DEFENSE COUNSEL]: It wasn’t the hospital, like you tried to tell this jury, though; isn’t that true?
[RUCHIMORA]: I really not remember that.

The court reasoned that counsel for Ms. Grullon properly challenged Ms. Ruchimora’s above statement without directly asking her whether she was referred by her attorney, which would have been a violation of attorney-client privilege pursuant to Worley v. Central Florida Young Men’s Christian Association, Inc., 228 So. 3d 18, 20 (Fla. 2017).

The Third District Court of Appeals concluded the trial court did not abuse its discretion in allowing the inference and argument for the purpose of challenging Ms. Ruchimora’s credibility and affirmed the trial court’s decision.

Shantell Kimberly Emmitt v. First Transit, Inc. d/b/a Trolley 606, 45 Fla. L. Weekly D1745 (Fla. 4th DCA July 22, 2020).

Shantell Kimberly Emmitt (“Ms. Emmitt”) sued First Transit, Inc. d/b/a Trolley 606 (“Trolley 606”) for negligence, stating in the complaint that she fell off Trolley 606’s trolley because they had failed to properly clean, maintain, and inspect the trolley steps.

However, prior to filing suit, Ms. Emmitt alleged that she fell from the trolley because it “jolted” as she was exiting. During the presuit investigation, counsel for Trolley 606 provided Ms. Emmitt’s counsel surveillance video from the trolley showing that the trolley had completely stopped because she stepped off.

The matter proceeded to a jury trial, where the court granted Trolley 606’s request to bifurcate the issues of liability and damages. The parties agreed to a joint pretrial stipulation that Ms. Emmitt “fell while attempting to exit the rear doorway” of the trolley. At the start of trial, Ms. Emmitt’s counsel moved in limine to prohibit Trolley 606 from using the Ms. Emmitt’s medical records to impeach the plaintiff about what caused her to fall. The trial court rejected Ms. Emmitt’s argument when Trolley 606’s counsel explained that the portion of the medical record they wanted to use was the entry: “Patient states as she was stepping off, the driver jerked the trolley causing her to fall.” The defendant maintained the hearsay statement was admissible under Fla. Stat. § 90.803(4), as a statement for purposes of medical diagnosis or treatment.

When the jury was released for lunch, counsel for the parties agreed to a stipulation, which the trial court announced to the jury upon their return, which stated that “there is no allegation or evidence that a jolt caused the Plaintiff to fall.”

After the jury rendered its verdict finding Trolley 606 80% negligent and Ms. Emmitt 20% negligent, Trolley 606 moved for entry of judgment in accordance with its motion for directed verdict, or in the alternative, a motion for new trial. Among its arguments, Trolley 606 asserted the trial court erred by refusing to allow it to introduce the medical record showing Ms. Emmitt had previously stated she fell because the trolley jolted. Trolley 606 argued it should have been allowed to show that Ms. Emmitt gave multiple versions as to how she fell. After hearing the motion, the trial court ordered supplemental memoranda of law. In its supplemental memorandum, Trolley 606 argued for the first time that the trial court erred by not admitting Ms. Emmitt’s statement in the medical record as an admission by a party, citing Fla. Stat. § 90.803(18), and Ring Power Corp. v. Condado-Perez, 219 So. 3d 1028 (Fla. 2d DCA 2017). The trial court entered its order granting Trolley 606’s motion for new trial. Citing Ring, the trial court reasoned that the Trolley 606’s inability to establish at trial that Ms. Emmitt’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. As such, the trial court found that Trolley 606 was entitled to a new trial pursuant to Fla. Stat. § 90.104, due to the “exclusion” of the Ms. Emmitt’s statement. The trial court determined that the exclusion was “substantially prejudicial” to Trolley 606 where Ms. Emmitt’s statement that the driver jerked the trolley causing her to fall belied the allegations of her complaint and her trial testimony, and directly impacted the issue of causation. Ms. Emmitt gave notice of appeal.

The Third District Court of Appeal agreed that, as a matter of fact, the trial court did not preclude Trolley 606 from presenting Ms. Emmitt’s inconsistent statement, using proper evidentiary procedure. However, the court disagreed that the stipulation made the inconsistent statement irrelevant because the credibility of parties is always relevant. The court concluded that the trial court properly excluded the statement at trial because Trolley 606 never sought to admit it as a party admission exception to the hearsay rule. Additionally, the 3rd DCA concluded that Trolley 606 has taken a position on appeal inconsistent with its position at trial.

In its reasoning, the court noted that, for whatever tactical reason, Trolley 606 insisted that a stipulation be announced by the trial court to the jury. As insisted, the trial court announced: that there “is no allegation or evidence that a jolt caused the Plaintiff to fall.” (emphasis added). If there was no allegation to support a theory of liability because the trolley jolted, evidence of such causation was irrelevant. See Fla. Stat. § 90.401. More importantly, having insisted at trial that the jury be advised there was no evidence that Ms. Emmitt fell because the trolley jolted, Trolley 606 cannot inconsistently argue on appeal that the trial court erred by refusing to admit Ms. Emmitt’s statement in the medical record as substantive evidence. See Harper ex rel. Daley v. Toler, 884 So. 2d 1124, 1135 (Fla. 2d DCA 2004). Using the statement as substantive evidence would be proof that Ms. Emmitt did fall because the trolley jolted. Therefore, the 3rd DCA reversed the order granting a new trial with instructions for the trial court to reinstate the jury’s verdict.

Atkinson, P.A. is committed to providing you with sound guidance, representation, and defense in response to these complex legal issues and we will continue to monitor noteworthy cases.

Our office continues to remain open and all of our attorneys remain fully available to assist you. As needs arise, continue to contact us via telephone or e-mail. Should you need immediate assistant, please feel free to contact our partners directly.

Very truly yours,