STEVEN J. CHORZELEWSKI, MCCULLAGH LEASING, INC., A FLORIDA CORPORATION, AND PEPSI-COLA BOTTLING CO. OF FORT LAUDERDALE-PALM BEACH, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
NILSA I. DRUCKER, APPELLEE
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In a negligence action arising from a motor vehicle accident, plaintiff sought damages for post-traumatic stress syndrome allegedly caused by a collision with a Pepsi-Cola truck. The appellate court reversed a $650,000 jury verdict, finding that the trial court committed reversible error by improperly admitting medical treatise material during plaintiff's expert's direct examination and by excluding testimony regarding other stressful events in plaintiff's life.
The trial court erred in both respects. Medical treatises may be introduced only in cross-examination of expert witnesses under Florida Statute section 90.706, not during direct examination to bolster expert opinion. Additionally, when plaintiff claimed a stress-related disorder was solely caused by defendant's negligence, evidence of other stressors in plaintiff's life was relevant and material and should have been disclosed to the jury.
[1] A medical treatise may only be introduced during the cross-examination of an expert witness, not during direct examination to bolster the expert's opinion.
[2] A plaintiff seeking damages for a stress-related disorder allegedly caused by a defendant's negligence waives the psychiatrist-patient privilege regarding other stressors…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is clear that section 90.706, Florida Statutes (1987), permits introduction of a medical treatise only in cross examination of an expert witness.”
Establishes the controlling legal standard that medical treatises are limited to cross-examination use, not direct examination.
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Join FLexlaw to unlock all legal intelligenceNilsa Drucker was injured in a car accident involving a Pepsi-Cola truck driven by Chorzelewski and owned by McCullagh. The defendants admitted liabil…
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GUNTHER, Judge.
Nilsa Drucker, plaintiff below, brought a negligence action for injuries sustained when her car was involved in an accident with a Pepsi-Cola truck driven by defendant, Chorzelewski, owned by defendant, McCullagh, and leased to defendant, Pepsi-Cola. Plaintiff received no lasting physical injuries, but maintains she suffers from post traumatic stress syndrome as a result of the accident. The defendants admitted causing the accident, but denied that the accident was the legal cause of plaintiff's injuries. The jury awarded plaintiff $650,-000.00 in damages. We reverse and remand for a new trial.
In our view, the trial court erred in permitting plaintiff’s attorney to read textual material from a medical treatise to the plaintiff’s expert witness, and in permitting the expert witness to bolster his own opinion testimony by using the medical treatise during his direct examination. It is clear that section 90.706, Florida Statutes (1987), permits introduction of a medical treatise only in cross examination of an expert witness. See Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981).
Furthermore, because the plaintiff maintained she suffered from post traumatic stress syndrome as a result of the accident, the trial court erred in excluding testimony by the plaintiff’s treating psychiatrist about other stressful situations in the plaintiff’s life. Since the plaintiff waived her psychiatrist-patient privilege, the treating physician should have been permitted to reveal what the plaintiff told him about other stressful incidents involving her son and husband. Once the treating psychiatrist testified that the accident was more stressful than other situations in the plaintiff's life, the jury should have been given all pertinent facts about whatever stressors the plaintiff was enduring. In our view, since the plaintiff was seeking damages for a stress-related disorder which she claimed was solely caused by the defendant’s negligence, any other stressors were relevant and material and should have been revealed to the jury.
Accordingly, we reverse the jury verdict for plaintiff and remand for a new trial.
DELL, J., concurs.
STONE, J., dissents without opinion.
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Schwarz v. State, 695 So. 2d 452 (Fla. 4th DCA 1997)…pecialty. Defendant argues that allowing this permits experts to improperly bolster their own opinions. Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion. Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989), Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987), Tallahassee Memorial v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981). Nor are statements in a treatise admissible during the direct examination of an expert, Green v. Gold…
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Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997)…ng the cross-examination of an expert and cannot be used to bolster the credibility of an expert or to supplement an opinion of the expert which has already been formed. Green v. Goldberg, 630 So. 2d 606 (Fla. 4th DCA 1993); Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989); Quarrel v. Minervini, 510 So. 2d 977 (Fla. 3d DCA 1987), rev. denied, 519 So. 2d 987 (Fla.1988); Medina v. Variety Children’s Hospital, 438 So. 2d 138 (Fla. 3d DCA 1983); Tallahassee Memorial Regional Medical Center v. Mitchell,…
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Oken v. Williams, 23 So. 3d 140 (Fla. 1st DCA 2009)…Statutes (1991), authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed. Chorzelewski v. Drucker, 546 So. 2d 1118 (Fla. 4th DCA 1989); Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981). Section 90.706 does not allow statements in a learned treatise to be tised as substantive evidence since the treatise is hearsay if it…
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- Tallahassee Mem'l Reg'l Med. Ctr. & Fla. Patients' Comp. Fund v. Mitchell, 407 So. 2d 601 (Fla. 1st DCA 1981)