11 Fla. L. Weekly Supp. 707a
Insurance — Personal injury protection — Evidence — Hearsay — Insurer’s medical expert properly testified that he reviewed medical records from insured’s two previous accidents after he prepared his report and his opinion that no additional medical care was needed for neck pain and head pressure that insured claimed as result of current accident was unchanged, but trial court erred in allowing expert to then testify that prior record indicated that insured suffered from neck pain and headaches after previous accidents — Reversed and remanded for new trial
VICKI FURER, Appellant, v. LIBERTY MUTUAL LIFE INSURANCE COMPANY, Appellee. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. 502002AP014356XXCCAY. June 8, 2004. Appeal from the County Court in and for Palm Beach County, Donald W. Hafele, Judge. Counsel: Diego C. Asencio, North Palm Beach, for Appellant. Janis Brustares Keyser, West Palm Beach, for Appellee.
(PER CURIAM.) Vicki Furer brought a PIP action against her insurer, Liberty Mutual Insurance Company, following a May 27, 2000 car accident. She appeals from an adverse jury verdict, contending that the trial court erred when it permitted Liberty’s expert witness to testify to the contents of unadmitted medical records from two prior accidents on direct examination. We agree and reverse.
Dr. Carl Salvati testified as Liberty’s examining expert witness. On direct examination, he testified that Furer complained of neck and head pressure that came and went and paresthesia. He opined that any additional treatment for those conditions would not be reasonable, necessary, or related to the May 27, 2000 accident. Over objection, he testified that Furer’s prior medical records indicate that she suffered from neck pain and headaches after the two previous accidents.
An expert witness may rely on hearsay in forming his opinion if it is the kind of hearsay relied on experts in the subject. §90.704, Fla. Stat. (2002); Ehrhardt, Florida Evidence §704.1, at 619 (2001). However, an expert may not serve as a conduit for placing inadmissible evidence before the jury. See Erwin v. Todd, 699 So. 2d 275 (Fla. 5th DCA 1997); Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 3d DCA 1995).
Examining Dr. Salvati’s testimony as a whole, it is clear that he served as a conduit for placing inadmissible hearsay evidence before the jury. In his report prepared prior to trial, he opined that no additional medical care was needed as a result of the May 27, 2000 accident. He had not reviewed the medical records from the prior accidents at the time. At trial, he properly testified that he had reviewed the prior records after he prepared his report and that his opinion was unchanged.1 However, Liberty’s counsel, over objection, then led Dr. Salvati to read and summarize the prior medical records for the jury, records not offered or admitted into evidence, without any effort to explain how those records related to his opinion. Clearly, the testimony was elicited to persuade the jury that Furer’s current complaints related to the prior accidents.
The final judgment in this matter is hereby REVERSED and this matter is REMANDED back to the trial court for a new trial to be conducted in a manner consistent with this opinion. If the trial court ultimately renders a final judgment in Appellant’s favor, the trial court is directed to award Appellant her requested attorney’s fees. See Fla. R. App. P. 9.400; Sabina v. Dahlia Corp., 678 So. 2d 822 (Fla. 2d DCA 1996). (BRUNSON, STERN, and MAASS, JJ., concur.)
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1Dr. Salvati had not examined the prior medical records before completing his report. Furer claims it was error to permit him to testify at trial that subsequent review of those records did not alter his opinion that the most recent accident did not require additional treatment, relying on Suarez-Burgos v. Morhaim, 745 So. 2d 368 (Fla. 4th DCA 2000). However, we could not locate in the record on appeal a demand from Furer under Rule 1.360 (b), Florida Rules of Civil Procedure. Consequently, she may not rely on the rule’s disclosure requirements. Further, the pre-trial order entered by the trial judge did not require disclosure of the basis for the expert’s opinion.
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