45 Fla. L. Weekly D2390b
Evidence — No error in trial court’s exclusion of insurance adjuster’s report — Report was protected work product, and plaintiff failed to establish applicable exception to prohibition against use of such materials at trial — No error in determination that work product privilege was not waived — No abuse of discretion in denying plaintiff’s request to be recalled to witness stand as a rebuttal witness — Damages — Setoff — Collateral source — Error to include in amount of collateral source set-off a bill paid by plaintiff
CLIFFORD JASON GREGORY, Appellant, v. KEY WEST WELDING AND FABRICATIONS, INC., et al., Appellees. 3rd District. Case No. 3D18-2419. L.T. Case No. 06-390-K. October 21, 2020. An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig, Judge. Counsel: Hugh Morgan; W. Sam Holland; Wasson & Associates, Chartered, and Roy D. Wasson, for appellant. Butler Weihmuller Katz Craig LLP, and Carol M. Rooney (Tampa), for appellees.
(Before EMAS, C.J., and HENDON and GORDO, JJ.)
(EMAS, C.J.) Clifford Jason Gregory appeals final judgment entered by the trial court following a trial, asserting the court made several errors which require a new trial. Upon review, and with one exception described below, we affirm the final judgment.
First, we find no error in the trial court’s exclusion of the insurance adjuster’s report, as it was protected work product and Gregory failed to establish an applicable exception to the prohibition against the use of such materials at trial. See Fla. R. Civ. P. 1.280(b)(4); Int’l House of Pancakes (IHOP) v. Robinson, 124 So. 3d 1004 (Fla. 4th DCA 2013). In addition, we agree with the trial court’s determination that there was no waiver of the work product privilege in this case. See Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Décor, Inc., 698 So. 2d 276, 278 (Fla. 3d DCA 1997).
We also find no abuse of discretion in the trial court’s decision to deny Gregory’s request to be recalled to the witness stand as a rebuttal witness. See Gutierrez v. Vargas, 239 So. 3d 615, 625 (Fla. 2018) (holding: “Courts should exercise their discretion to avoid the needless waste of time through unnecessary presentation of cumulative evidence.”)
Finally, we affirm the trial court’s order granting a collateral source set-off, with the exception of the $555.80 paid by Gregory to Sweet Bay Pharmacy, which was erroneously excluded by the trial court. The undisputed post-judgment evidence presented to the trial court established Gregory’s payment of the Sweet Bay Pharmacy bill in this amount, and thus, the trial court should have included that figure in its calculation of the amounts to be awarded in the final judgment. On remand, the final judgment should be amended to include that amount, reduced by the corresponding comparative negligence as determined by the jury’s verdict.
We affirm without discussion of the other points raised by Gregory in this appeal.
Affirmed in part, reversed in part and remanded for further proceedings.
