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Maria Andreaus, et al. v. Impact Pest Management, Inc., Case No. 2D14-1688 (2nd DCA)

In Andreaus, the Second District reversed a final judgment entered in favor the defendants. The plaintiff suffered injuries when she slipped and fell as she exited an elevator at the defendant condominium. She and her husband filed suit against the condominium association as well as the pest control company who they alleged had sprayed pesticide on the tile floor outside the elevator, where she fell. Before trial, the court excluded any mention in the plaintiff's medical records that she slipped on spilled water. There was no witness who could testify about who made those statements, and the plaintiff denied making them. The plaintiff's counsel therefore redacted those statements from the approximately 1,500 pages of medical records. The redacted medical records were admitted into evidence at trial.

During the defense's closing, defense counsel asked the trial court if he could comment on a portion of the medical records that mentioned the plaintiff had slipped on spilled water, but which had mistakenly not been redacted. No evidence had otherwise been admitted suggesting the presence of any substance other than pesticide, and the plaintiff's counsel was unaware of the mistake in the medical record redactions. The trial court ruled that the defense counsel may disclose that portion of the medical record to the jury, which he did, calling into question the credability of the plaintiff. The jury returned a verdict for the defense.

On appeal, the Second District found there was "no question" the trial court had abused its discretion and allowed inadmissible evidence to go to the jury, which was "extremely" prejudicial to the plaintiff's case. The court noted that the statements about the cause of the fall, the source of which was unknown and the plaintiff denied making, were inadmissible hearsay. The court cited to Visconti v. Hollywood Rental Serv., for the proposition that statements relating to the cause of the fall are not statements made for the purpose of medical diagnosis or treatment and are therefore not admissible under section 90.803(4). That the plaintiff's counsel mistakenly introduced the medical records without those references redacted did not change the fact that the references were inadmissible hearsay, and the only argument that they were admissible was that they had mistakenly been left in the record.

The Second District further noted that the unredacted references were devastating to the plaintiff's case. Until defense counsel mentioned those references from the medical record, the only question for the jury was whether the plaintiff had slipped on pesticide or whether no substance caused her to slip. The inadmissible evidence inappropriately inserted another possible cause, spilled water, into the central query of the case. And, worse, the defense counsel suggested that the plaintiff had been lying throughout the case by hiding the true cause of the accident. The failure to redact those references was a clerical mistake that could have been corrected before the jury's mind was tainted by the inadmissible reference. Accordingly, the Second District reversed.


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