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Lorri Zelaznik, et al. v. Denise Isensee, Case No. 2D12-2590 (2nd DCA)

In Zelaznik, the Second DCA affirmed a final judgment entered in favor of the plaintiff after a jury trial. The plaintiff’s claim arose after an automobile accident in which Zelaznik rear ended the plaintiff. Prior to trial, Zelaznik admitted liability but contested whether the accident was the cause of the plaintiff’s injuries. On appeal, Zelaznik contested three evidentiary rulings.

Zelaznik first argued that the trial court erred in limiting the testimony of her expert witness, Michael Foley, M.D. Dr. Foley, a board-certified physician in diagnostic radiology, was to testify that his reading of an MRI taken of the plaintiff twenty-one days after the accident led him to conclude that the plaintiff suffered from degenerative changes of the discs rather than a permanent injury suffered as the result of the accident. Dr. Foley’s opinion was based on his experience, which indicated that some physical manifestation – such as swelling, bleeding or some other sign of trauma – would be seen in an MRI taken within a short period of time following an injury. Dr. Foley testified that disc abnormalities without other physical signs indicates a chronic condition rather than an injury brought on by sudden trauma.

The plaintiff sought to exclude Dr. Foley’s testimony under Fla. Stat. 90.705 (2011) arguing that Dr. Foley did not present any medical literature supporting his theory that the absence from an MRI of signs of swelling, edema, or hemorrhaging indicates that no trauma had taken place. The trial court agreed with the plaintiff, and ruled that Dr. Foley’s testimony could not include any opinion as to the significance of the absence of swelling, edema, or hemorrhage from the MRI. The Second DCA ruled this was error. The application version of Fla. Stat. 90.705(2) provided that the opinions and inferences of an expert are inadmissible if the opposing party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion. The Second DCA ruled that Dr. Foley’s experience provided a sufficient basis to support Dr. Foley’s opinion. Nonetheless, the Second DCA found that the error was harmless. The court noted that for an error to be harmful, it must be reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed. In considering that question, the Second DCA noted that the plaintiff’s surgeon testified that he found a torn ligament during surgery that would have been too small to show up on the earlier MRI. Although Dr. Foley’s testimony was precluded, the theory Dr. Foley was to testify to was nonetheless presented to the jury through other experts. The court therefore ruled that it was not reasonably probable that the jury would have returned a different verdict had they heard the testimony of Dr. Foley.

Second, Zelaznik argued that the trial court erred in limiting the testimony of the investigating officer, who had no independent memory of the accident and his memory was not refreshed by reading his accident report. The Second DCA determined that any potential error by the trial court was harmless, given that the plaintiff herself testified that after the accident she moved around the scene, got in and out of her car and went back and forth to the defendant’s car.

Lastly, Zelaznik argued that the trial court erred in allowing a fifteen-minute video of excerpts from the plaintiff’s surgery to be shown to the jury. The test for admissibility of photographic evidence is relevancy rather than necessity. Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. The trial court noted that the video was not particularly gruesome, and the operating physician testified that the video would aid in his explanation of the surgery. The video also lasted fifteen minutes, whereas the surgery lasted one hour and forty minutes. The Second DCA determined that the trial court had not abused its discretion in allowing the video. The Second DCA therefore affirmed the final judgment.


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