MARTA MAKLAKIEWICZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RENATA MAKLAKIEWICZ, APPELLANT,
v.
GERALD BERTON, APPELLEE
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In a wrongful death action arising from a pedestrian-vehicle collision, the appellate court reversed the trial court's judgment because the trial court abused its discretion by allowing the sole defense expert witness (a police officer) to present opinions based primarily on inadmissible hearsay evidence rather than his own observations.
The trial court abused its discretion in permitting Officer Delano to serve as a conduit for inadmissible hearsay evidence. Although expert witnesses may rely on inadmissible evidence that is reasonably relied upon in their field, they may not serve merely as a conduit to present inadmissible evidence to the jury, particularly when the expert cannot render an opinion with finality without relying on that hearsay evidence.
[1] An expert witness may not serve merely as a conduit for the presentation of inadmissible evidence to the jury.
[2] An expert witness's opinion based exclusively upon inadmissible facts or data is generally impermissible.
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Join FLexlaw to unlock all legal intelligence“Although an expert witness is entitled to render an opinion premised on inadmissible evidence when the facts and data are the type reasonably relied on by experts on the subject, the witness may not serve merely as a conduit for the presentation of inadmissible evidence.”
Establishes the fundamental rule distinguishing permissible reliance on inadmissible evidence from impermissible use of expert as a conduit
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Join FLexlaw to unlock all legal intelligenceRenata Maklakiewicz was struck by Gerald Berton's automobile while crossing the street. The central dispute at trial concerned whether Renata was cros…
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BASKIN, Judge.
Plaintiff appeals a final judgment in a wrongful death action. We reverse.
Marta Maklakiewicz, as personal representative of the estate of her deceased mother, Renata Maklakiewicz [plaintiff], sued Gerald Berton, seeking damages for Renata’s wrongful death caused by Berton’s negligent operation of his automobile. Berton’s car struck Renata as she was crossing the street. The main issue at trial was whether Renata was crossing the street from the east or from the west in order to establish whether Ber-ton had adequate time to see her and react.
Plaintiff filed a motion in limine seeking to limit the testimony of defense witness Officer Keith Delano who had investigated the accident. Plaintiff asserted that the basis for the officer’s conclusions would be inadmissible hearsay accounts of the incident: the alleged observations of a homeless person who was never found for deposition or trial testimony, and the conclusions of the medical examiner who was not deposed and did not testify. The court permitted the officer to testify and present his conclusions as an accident reconstruction expert. The jury found Berton forty-five percent negligent, Renata fifty-five percent negligent, and awarded plaintiff $150,000. The court entered judgment accordingly. The court denied plaintiffs motion for a new trial.
We reverse the final judgment on the issue of liability because we hold that the trial court abused its discretion in permitting the sole defense expert witness, the police officer, to convey to the jury inadmissible hearsay statements.
“Although an expert witness is entitled to render an opinion premised on inadmissible evidence when the facts and data are the type reasonably relied on by experts on the subject, the witness may not serve merely as a conduit for the presentation of inadmissible evidence.” Smithson v. V.M.S. Realty, Inc., 536 So. 2d 260, 261-262 (Fla. 3d DCA 1988) (citations omitted); Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430, 432 (Fla. 2d DCA 1989); Sikes v. Seaboard Coast Line R. Co., 429 So. 2d 1216 (Fla. 1st DCA), review denied, 440 So. 2d 353 (Fla.1983). The record demonstrates that Officer Delano’s testimony served solely as a conduit for inadmissible hearsay: the officer physically inspected the accident scene but testified that he would be unable to render an opinion with finality without relying on the hearsay statements. Hence, his conclusion as an expert was based on the inadmissible evidence. Section 90.704, Florida Statutes (1993), does not “typically permit an expert to render an opinion exclusively upon inadmissible facts or data.” Riggins, 545 So. 2d at 432.
Moreover, the presentation of the inadmissible evidence before the jury through the testimony of the officer as an accident reconstruction expert unfairly prejudiced the plaintiff and misled the jury by giving the inadmissible evidence the expert’s imprimatur of approval and reliability. Riggins. Thus, the opinion’s prejudicial effect outweighed any arguable probative value of the evidence, and should have been excluded.
Based on the foregoing reasoning, the judgment is reversed as to liability, and the cause remanded for a new trial on this issue.
Reversed and remanded.
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Carratelli v. State, 832 So. 2d 850 (Fla. 4th DCA 2002)…ariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989) is misplaced. The essence of Riggins is that section 90.704 “does not ‘typically permit an expert to render an opinion exclusively upon inadmissible facts or data.’ ” Maklakiewicz v. Berton, 652 So. 2d 1208, 1209 (Fla. 3d DCA 1995) (emphasis added) (quoting Riggins, 545 So. 2d at 432); see Bender v. State, 472 So. 2d 1370, 1371 (Fla. 3d DCA 1985) (observing [*862] that “the hearsay rule poses no obstacle to expert testimony premised, in part ... upon t…
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Linn v. Basil D. Fossum, M.D., 946 So. 2d 1032 (Fla. 2006)…h other experts in his field because “[a]ny probative value would be ‘substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury ... ’ § 90.403, Fla. Stat.”) (alteration in original); Maklakiewicz v. Berton, 652 So. 2d 1208, 1209 (Fla. 3d DCA 1995) (“[T]he presentation of the inadmissible evidence before the jury through the testimony of the officer as an accident reconstruction expert unfairly prejudiced the plaintiff and misled the jury by giving the inadmissible evi…
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Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997)…fteen visits between that date and 11/25 — or correction 1/15/96- (Emphasis added). Under section 90.704, an expert is generally permitted to express opinions which are based, at least in part, upon inadmissible information. Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 3d DCA 1995); Department of Corrections v. Williams, 549 So. 2d 1071 (Fla. 5th DCA 1989); Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989); Smithson v. VMS Realty, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988); Hungerford v. Ma…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sikes v. Seaboard Coast Line R.R. Co., 429 So. 2d 1216 (Fla. 1st DCA 1983)
- Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989)
- Smithson v. V.M.S. Realty, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988)