Third District Court of Appeal
State of Florida
Opinion filed July 28, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0107
Lower Tribunal Nos. 20-0086 AP & 12-5879 CC
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United Automobile Insurance Company,
Appellant,
vs.
NB Sports Massage and Rehab Corp.,
a/a/o Daisy DePaula,
Appellee.
An Appeal from the County Court for Miami-Dade County, Lawrence
D. King, Judge.
Michael J. Neimand, for appellant.
Corredor & Husseini, P.A., and Maria E. Corredor; David B. Pakula,
P.A., and David B. Pakula (Pembroke Pines), for appellee.
Before LOGUE, SCALES, and LINDSEY, JJ.
LINDSEY, J.
United Automobile Insurance Company appeals a final judgment
entered after the county court directed a verdict in favor of NB Sports
Massage and Rehab Corp. for $1500.62 in benefits and $646.98 in
interest.1 Because the lower court did not permit United to lay a foundation
for the past recollection recorded hearsay exception, we reverse and remand
for further proceedings consistent with this opinion.
This appeal arises out of a claim for medical services under a personal
injury protection (“PIP”) policy of insurance, following an automobile
accident. NB Sports, as assignee of Daisy DePaula, the insured, sued
United for breach of contract for PIP benefits. The sole issue below was
whether the services NB Sports rendered to the insured after the
Independent Medical Examination (“IME”) cutoff date were related to the
subject accident and medically necessary. 2
On the day of trial, NB Sports moved to prevent United from reading
the deposition testimony of its medical expert, Dr. Michael Weinreb, who
1
This circuit court appeal was transferred to this Court in January 2021. See
Chapter 20-61, section 3, Laws of Florida (amending section 26.012(1) and
repealing section 924.08 to remove circuit court jurisdiction over the majority
of the appeals of county court orders or judgments and vesting jurisdiction of
those appeals in the district courts of appeal). Thus, we have jurisdiction.
2
To be entitled to benefits under a PIP policy of insurance, it must be shown
that the charges billed are reasonable, related, and medically necessary.
See § 627.736, Fla. Stat. (2020).
2
conducted the IME. NB Sports argued that Dr. Weinreb’s deposition
testimony, which read directly from the IME report, was inadmissible
because Dr. Weinreb did not remember the contents of the report, and the
report did not refresh his recollection. 3 NB Sports did not object to Dr.
Weinreb testifying at trial and suggested that he could testify regarding the
contents of the IME report if a proper foundation were laid. United argued
that although the IME report was hearsay, it was admissible as a past
recollection recorded. See § 90.803(5), Fla. Stat. (2020). 4
3
As this Court explained in K.E.A. v. State, 802 So. 2d 410, 411 (Fla. 3d
DCA 2001):
When a witness testifies that he or she has no
present recollection or memory of a fact, counsel
may show the witness a writing or other object in an
attempt to refresh the witness’ recollection. If, after
seeing the document or object, the witness’ memory
is jogged so that the witness has a present
recollection of the fact, the witness may testify to the
fact from his or her present memory. However, if the
witness does not have a present recollection of the
fact, the witness may not testify to the fact. It is the
witness’ testimony as to the substance of his
recollection which constitutes the evidence, when a
writing revives present recollection.
4
“The practice of refreshing the recollection of the witness must be
distinguished from past recollection recorded. When a witness's recollection
is refreshed by the use of a document or other item, the witness is testifying
from his or her own present memory and not the document. It is not
necessary in that situation to comply with section 90.803(5).” Charles W.
Ehrhardt, 1 Fla. Prac., Evidence § 803.5 (2021 ed.).
3
The lower court granted NB Sports’ motion to preclude Dr. Weinreb’s
deposition testimony, finding that the IME report did not refresh Dr.
Weinreb’s recollection and that an insufficient foundation had been laid to
satisfy the past recollection recorded hearsay exception. The court reserved
ruling on whether Dr. Weinreb could provide live witness testimony but stated
that the live testimony would have to meet the requirements for the past
recollection recorded hearsay exception.
At trial, NB Sports’ medical expert, Dr. Kevin Woods, testified that the
treatment was reasonable, related, and necessary. After NB Sports rested,
United sought to call Dr. Weinreb as a live witness to lay a proper foundation
for the IME report under the past recollection recorded exception to the
hearsay rule. Although NB Sports acknowledged that a proper foundation
might be laid for Dr. Weinreb to read the contents of the IME report, it argued
that it would be improper for Dr. Weinreb to take the stand because portions
of the IME report contained statements from the insured and were therefore
double hearsay. The lower court agreed with NB Sports, concluding that the
IME report is “a hearsay document, nothing changes that.”
United then sought to voir dire Dr. Weinreb to lay the required
foundation to allow him to read his report pursuant to the past recorded
recollection exception to the hearsay rule. The lower court denied this
4
request. Since United had no other witnesses to call in rebuttal to NB Sports’
case in chief, the court directed a verdict in favor of NB Sports. The lower
court then entered a final judgment, and United timely appealed.
A trial court’s decision to admit evidence is reviewed under the abuse
of discretion standard; however, that discretion is limited by the rules of
evidence. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008), as revised on
denial of reh’g (Sept. 25, 2008) (citations omitted). United argues that the
lower court abused its discretion when it completely precluded Dr. Weinreb
from testifying. We agree.
NB Sports initially objected to the introduction of Dr. Weinreb’s
deposition testimony because his recollection was not refreshed after seeing
the IME report. See Ehrhardt, supra, at § 613.1 (“[I]f the witness does not
have a present memory of the fact after seeing the document, the witness
may not testify to the fact.”). It is undisputed that Dr. Weinreb’s memory was
not refreshed. However, testimony regarding the IME report may be
admissible on another independent ground, specifically, the past recollection
recorded hearsay exception. See Garrett v. Morris Kirschman & Co., Inc.,
336 So. 2d 566, 569 (Fla. 1976) (“A writing may serve to jog a witness’
memory and also be admissible on some independent ground.”).
5
Section 90.803(5) sets forth the requirements for the past recollection
recorded hearsay exception:
(5) Recorded recollection.--A memorandum or
record concerning a matter about which a witness
once had knowledge, but now has insufficient
recollection to enable the witness to testify fully and
accurately, shown to have been made by the witness
when the matter was fresh in the witness's memory
and to reflect that knowledge correctly. A party may
read into evidence a memorandum or record when it
is admitted, but no such memorandum or record is
admissible as an exhibit unless offered by an
adverse party.
These requirements are usually established through the testimony of
the witness who made the prior record. See Polite v. State, 116 So. 3d 270,
275 (Fla. 2013); see also Ehrhardt, supra, at § 803.5. Here, however, the
lower court never permitted Dr. Weinreb to testify. We hold that this was
error. United should have been allowed to lay a proper foundation pursuant
to section 90.803(5). 5 As such, we reverse and remand for further
proceedings.
Reversed and remanded.
5
To the extent the IME report contains double hearsay, United should have
been allowed to lay a proper foundation under other exceptions to the
hearsay rule. See § 90.805 (“Hearsay within hearsay is not excluded under
s. 90.802, provided each part of the combined statements conforms with an
exception to the hearsay rule as provided in s. 90.803 or s. 90.804.”).
6