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Florida Third DCA rules that trial court erred in not allowing defense expert to lay foundation for reading to jury passages from IME report as past recollection recorded

On July 28, 2021, in United Automobile Insurance Company v. NB Sports Massage and Rehab Corp., No. 3D21-0107, the Florida Third DCA reversed a trial court’s directed verdict entered in favor of the plaintiff medical provider plaintiff in a personal injury protection (“PIP”) insurance lawsuit brought against the defendant insurance company. The trial court had denied the defendant insurance company the right to read to the jury portions of the deposition testimony of its medical expert, who had performed a medical examination of the plaintiff. The portions of the deposition testimony sought to be admitted and in dispute were passages in which the expert read directly from his previously prepared medical examination report. The defendant argued unsuccessfully to the trial court that although the IME report was hearsay, it was admissible as a past recollection recorded under § 90.803(5), Fla. Stat. (2020). The Third DCA concluded that the trial court erred by not allowing the expert to testify and lay the foundation under § 90.305, which would have required him to testify that he once had knowledge of the contents of the report, but now has insufficient recollection to enable him to testify fully and accurately, and that the report was made by him when the matter was fresh in his memory and it reflects his knowledge correctly.