TORTS: NEGLIGENCE: PREMISES LIABILITY: SLIP AND FALL; CIVIL PROCEDURE: CLOSING ARGUMENT: PROFESSIONAL RESPONSIBILITY: GOTCHA TACTICS: EVIDENCE: MEDICAL RECORDS: STATEMENTS IN MEDICAL RECORDS THAT PLAINTIFF SLIPPED ON SPILLED WATER WERE INADMISSIBLE HEARSAY BECAUSE THE SOURCE OF THE STATEMENTS WAS UNKNOWN, AND THE PLAINTIFF DENIED MAKING THEM: TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO REDACT TWO REFERENCES TO WATER SPILL THAT PLAINTIFFS’ COUNSEL MISSED BEFORE THE RECORDS WERE ADMITTED IN EVIDENCE AND BY ALLOWING DEFENSE COUNSEL TO ARGUE THAT PLAINTIFF WAS DISHONEST BECAUSE SHE TESTIFIED THAT SHE SLIPPED ON SPRAYED INSECTICIDE: DEFENSE COUNSEL ENGAGED IN UNPROFESSIONAL, GOTCHA TACTICS AND UNDERMINED THE INTEGRITY OF THE JUDICIAL PROCESS

Andreaus v. Impact Pest Management, Inc., ___ So. 3d ___, 40 Fla. L. Weekly D357 (Fla. 2d DCA February 6, 2015)

The plaintiff alleged that she slipped and fell on insecticide that had been sprayed on the tile floor outside an elevator, but her medical records contained references to slipping and falling on spilled water. The trial court properly granted the plaintiffs’ motion in limine to exclude from evidence any statements about slipping on water because the source of the statements was unknown, and the plaintiff denied making them. Although plaintiffs’ counsel redacted most of the statements from the plaintiff’s 1,500 pages of medical records, he missed two of them before submitting the records in evidence. During closing argument, defense counsel suggested that the plaintiff was being dishonest with the jury and obtained the trial court’s permission to comment upon the two inadvertently unredacted statements in the medical records. The jury returned a defense verdict, but the appellate court reversed final judgment for the defendants. The statements were inadmissible hearsay. The inadvertent failure to redact them did not change this fact, and this clerical error could easily have been corrected before the statements were used to inflame the jury. The trial court erred, and defense counsel engaged in unprofessional, gotcha tactics and undermined the integrity of the adjudicative process.

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