DARRYL ELLIS, APPELLANT,
v.
BRUCE WEISBROT, D.D.S., APPELLEE
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In this dental malpractice case, Ellis appeals a jury verdict finding no negligence. The appellate court reversed because the trial court erroneously admitted evidence that a co-defendant had been dismissed from the lawsuit, violating Florida Statute § 768.041, which prohibits informing juries of settlements or dismissals of defendants.
The trial court committed clear error by admitting testimony about Dr. Kirsner's prior status as a defendant. Florida Statute § 768.041 prohibits informing juries that a witness was a prior defendant, and such evidence cannot be admitted even to attack the witness's credibility. Reversal is required.
[1] A trial court errs by admitting evidence of a witness's prior status as a defendant in the lawsuit and the dismissal of the claim against them.
[2] Florida Statutes prohibit informing the jury that a witness was a prior defendant, regardless of whether the dismissal resulted from a release, settlement, or court order…
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Join FLexlaw to unlock all legal intelligence“The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.”
The statutory prohibition at the heart of the reversal, establishing that evidence of a defendant's dismissal cannot be presented to the jury.
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Join FLexlaw to unlock all legal intelligenceEllis sued Jefferson Stores, Inc., and Drs. Kirsner and Weisbrot for dental malpractice. On the morning of trial, Ellis dismissed Dr. Kirsner with pre…
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PER CURIAM.
Darryl Ellis appeals from a final judgment entered on a jury verdict finding no negligence in a dental malpractice action. For the following reason, we reverse.
Ellis sued Jefferson Stores, Inc., and Drs. Kirsner and Weisbrot for dental malpractice. On the morning of trial, Ellis voluntarily dismissed Dr. Kirsner in exchange for a waiver of costs and fees. Although the record is not clear on this point, Ellis states on appeal that the dismissal was with prejudice. During cross-examination of Dr. Kirsner, counsel for Dr. Weisbrot asked the following question over Ellis’s objection: “Dr. Kirsner, isn’t it true you were just dismissed as a defendant from this case yesterday by the plaintiff?” Dr. Kirsner answered, “That is correct.” Ellis moved for a mistrial; the trial court later denied his motion. The following day, during continuing cross-examination of Dr. Kirsner, Dr. Weisbrot’s attorney, over Ellis’s repeated objections, continually referred to Dr. Kirsner’s former status as a defendant in the lawsuit.
The trial court erred in admitting evidence of Dr. Kirsner’s prior status as a defendant in the lawsuit and dismissal of the claim against him. “The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.” § 768.041, Florida Statutes (1987). Section 768.041 prohibits informing the jury that a witness was a prior defendant, whether the party was dismissed by release or settlement or by court order. Ashby Div. of Consol. Aluminum v. Dobkin, 458 So. 2d 335 (Fla. 3d DCA 1984); Green v. Ed Ricke & Sons, Inc., 438 So. 2d 25 (Fla. 3d DCA 1983), approved, 468 So. 2d 908 (Fla. 1985); Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982); City of Coral Gables v. Jordan, 186 So. 2d 60 (Fla. 3d DCA), aff'd, 191 So. 2d 38 (Fla.1966). A dismissal with prejudice is tantamount to a release. Eason v. Lau, 369 So. 2d 600 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1365 (Fla.1979).
Admission of such testimony, even to attack the former defendant’s credibility, is clear error and requires reversal. Ashby, 458 So. 2d at 337; City of Coral Gables, 186 So. 2d at 63.
Reversed and remanded for a new trial.
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Saleeby v. Rocky Elson Constr., Inc., 3 So. 3d 1078 (Fla. 2009)…to prove a witness’s bias or prejudice. Accordingly, I would approve the Fourth District’s decision in Saleeby v. Rocky Elson Construction, Inc., 965 So. 2d 211 (Fla. 4th DCA 2007), and disapprove the Third District’s decision in Ellis v. Weisbrot, 550 So. 2d 15 (Fla. 3d DCA 1989). Thus, I respectfully dissent. WELLS, J., concurs. . The similar federal evidentiary rule explains that the prohibition against admitting evidence of compromises or offers to compromise when offered to prove liability does not p…1 / 4
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Regla Hernandez v. State Farm Fire & Cas. Co., 700 So. 2d 451 (Fla. 4th DCA 1997)…cross-examination that she had been sued by her passenger in connection with this accident. We find this testimony could reasonably have inflamed the jury and/or led it to conclude that Hernandez was the cause of the accident. See Ellis v. Weisbrot, 550 So. 2d 15 (Fla. 3d DCA 1989)(hold-ing that a jury may not be informed that a witness was a prior defendant, even if settlement had occurred); Taylor Imported Motors, Inc. v. Armstrong, 391 So. 2d 786 (Fla. 4th DCA 1980)(holding, in a negligence action involvi…
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Rowe v. Lawrence Leichter, M.D., 561 So. 2d 647 (Fla. 4th DCA 1990)…ose of these provisions is to implement public policy in favor of settlement and avoidance of litigation. Cenvill Communities, Inc. v. Patti, 458 So. 2d 778 (Fla. 4th DCA 1984), pet. for rev. denied, 467 So. 2d 1000 (Fla.1985). In Ellis v. Weisbrot, 550 So. 2d 15 (Fla. 3d DCA 1989), the court held that a voluntary dismissal with prejudice of a defendant came within section 768.041. The Ellis court held that it was reversible error to allow a dentist-witness to be questioned about his former status as a defen…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- ED Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)
- Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982)
- City OF Coral Gables v. Jordan, 186 So. 2d 60 (Fla. 3d DCA 1966)
- Ashby Div. OF Consol. Aluminum Corp. v. Dobkin, 458 So. 2d 335 (Fla. 3d DCA 1984)
- Janet v. Jordan and Janet V. Jordan as Administratrix of the Estate of John Ellison Jordan, 191 So. 2d 38 (Fla. 1966)
- Green v. ED Ricke & Sons, Inc., 438 So. 2d 25 (Fla. 3d DCA 1983)
- Eason v. LAU, 369 So. 2d 600 (Fla. 1st DCA 1978)