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Florida Third DCA reverses defense verdict in wrongful death case, finds that even assuming police detective’s testimony constituted expert testimony, trial court committed reversible error in allowing him to testify as to hearsay statement from another officer

On January 27, 2021, in Dayes, etc., v. Werner Enterprises, Inc. et al., No. 3D19-1920, the Florida Third DCA reversed a defense judgment in a wrongful death case due to the trial court’s erroneous admission of inadmissible hearsay evidence at trial.  The decedent was killed at work when a tractor-trailer backed over him.  In the subsequent wrongful death trial against the owner of the tractor-trailer and his employee, the trial court allowed the defendants to read to the jury the deposition of a police detective who testified that another officer told him the decedent had an earbud in his ear when lying on the ground after the accident. This testimony addressed a key issue in the case involving whether the decedent should have heard a horn that the driver allegedly sounded as he reversed the tractor-trailer. The Third DCA assumed, but did not decide, that the police detective was testifying as an expert on this point and quoted from Fla. Evid. Code § 90.704 regarding expert testimony that “[f]acts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” The Third DCA also quoted from Linn v. Fossum, 946 So. 2d 1032, 1037–38 (Fla.  2006) for the proposition that “Florida courts have routinely recognized that an expert’s testimony “may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.”  The Third DCA was particularly concerned about the trustworthiness of the hearsay statement because according to quotations in the record from the deposition of the police sergeant who allegedly made the out-of-court statement, he himself could not recall whether the decedent had an earbud in his ear after the accident or whether he (the police sergeant) made a statement to that effect to the police detective. The Third DCA concluded that even if the police detective was testifying as an expert, admission of this hearsay was error.  Noting that the Florida Supreme Court has held that error is harmless only when the beneficiary of the error demonstrates “there is no reasonable possibility that the error contributed to the verdict,” see Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256–57 (Fla. 2014), the Third DCA additionally concluded that the error was not harmless and reversed and remanded for a new trial.