Metropolitan Dade County v. Bermudez

• Decision Date: 20 December 1994
• Docket Number: No. 93-822,93-822
• Citation: 648 So.2d 197
• Parties: 20 Fla. L. Weekly D44 METROPOLITAN DADE COUNTY, Appellant, v. Guillermo BERMUDEZ, Appellee.
• Court: Florida District Court of Appeals

Page 197

648 So.2d 197

20 Fla. L. Weekly D44

METROPOLITAN DADE COUNTY, Appellant, v. Guillermo BERMUDEZ, Appellee.

No. 93-822.

District Court of Appeal of Florida,

First District.

Dec. 20, 1994.

Rehearing Denied Jan. 24, 1995.

Robert A. Ginsburg, Dade County Atty., John McInnis, Asst. County Atty., Dade County, Miami, for appellant.

Henry E. Fierro and Jay M. Levy, Miami, for appellee.

BENTON, Judge.

This workers' compensation case began with Guillermo Bermudez's claim for benefits on account of an automobile accident. Dade County, his employer, concedes the compensability of his injuries, but contends that it was entitled to reduce compensation benefits by twenty-five percent, because Mr. Bermudez was not wearing a seat belt at the time of the accident. The judge of compensation claims ruled against the County, finding that it did not prove this contention; but only after she ruled inadmissible two witnesses' expert opinions that Mr. Bermudez was not wearing a seat belt when the accident occurred. These witnesses were excluded on grounds that their testimony was based, at least in part, on examination of the accident vehicle, which the County sold for scrap before the hearing. We remand for a determination of whether the County willfully "destroyed" evidence or kept it from the claimant and for further proceedings as warranted.

The automobile accident occurred on October 13, 1990. Within minutes, Lieutenant Pierre Sada of the Dade County Fire Department, a paramedic, arrived at the accident scene. In providing emergency care to Mr. Bermudez and the car's other two occupants, he examined the accident vehicle and Mr. Bermudez to determine the "mechanism" of his injuries, because such information is often desired by emergency room physicians.

On November 6, 1990, the County hired Richard Christian, an accident reconstruction expert, and gave him access to the accident vehicle, of which it had taken custody. Mr. Christian submitted his report to the County, together with photographs of the vehicle, on November 13, 1990. The report concluded that Mr. Bermudez was not wearing a seat belt at the time of the accident.

Mr. Bermudez filed his claim for benefits on December 24, 1990. The claim for benefits acknowledges the County's assertion of the seat belt defense. On May 5, 1991, counsel for Mr. Bermudez filed a motion to produce the accident vehicle. The County responded on June 27, 1991, that the vehicle had been sold for scrap on May 7. But, at the merits hearing, documentary evidence and the testimony of a county employee made it appear that the vehicle may well have been in the County's possession until July 23, 1991. On this basis, the judge of compensation claims refused to allow Mr. Christian's testimony, his report, or any evidence developed from an examination of the accident vehicle.

The County then proffered Lt. Sada's testimony concerning both the nature and extent of Mr. Bermudez's injuries and the results of Lt. Sada's examination of the automobile at the scene. Lt. Sada was also of the opinion that Mr. Bermudez had not been wearing a seat belt during the collision. The County now urges that the exclusion of the testimony and the opinions of Mr. Christian and Lt. Sada effectively precluded it from asserting the seat belt defense, and that a sanction of this severity was not justified.

Unfair Surprise

Lt. Sada's testimony was excluded on the additional independent ground that the County had listed him as a witness whose testimony would be presented by deposition, instead of in person. His deposition was never taken. The amended final order concludes that the County would have obtained an unfair advantage if it had been allowed to "surprise" the claimant with Lt. Sada's testimony at hearing, after listing him as a deposition witness.

A trial judge has broad discretion ¹ in deciding whether to hear the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. See Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981). But exclusion is a drastic remedy which should be utilized only in appropriate circumstances. Aguila-Rojas v. City Management Group Corp., 606 So.2d 765 (Fla. 3d DCA 1992); Louisville Scrap Material Co. v. Petroleum Packers, Inc., 566 So.2d 277, 278 (Fla. 2d DCA 1990); Acquisition Corp. of America v. American Cast Iron Pipe Co., 543 So.2d 878, 881 (Fla. 4th DCA 1989). Of paramount concern is protecting litigants from prejudicial surprises coming too late to be countered with reasonable effort.

The County listed Lt. Sada as a potential witness more than eight months before the merits hearing. The claimant had ample time for discovery in preparation for Lt. Sada's testimony, whether elicited on deposition or at hearing. In eight months' time, moreover, as the claimant should have been aware, a witness' schedule may change so that he can appear at the hearing, even though it originally appeared that he would be unavailable. The claimant's counsel was free to inquire of opposing counsel about this possibility.

Lt. Sada's testimony was nevertheless ruled inadmissible because he was called to testify at hearing, instead of on deposition. Any genuine prejudice to Mr. Bermudez could have been cured by a continuance or by some other means short of the exclusion of Lt. Sada's critical testimony. "The sanctions provisions for discovery violations are intended to effect compliance [or compensate for an advantage gained by a violation] not to punish." Hanna v. Industrial Labor Service, Inc., 636 So.2d 773, 776 (Fla. 1st DCA 1994). That Lt. Sada was listed as a "deposition witness" was not grounds to exclude his testimony at hearing.

The judge of compensation claims also excluded Mr. Bermudez's treating physician, Dr. Page, from testifying, because the County sought to add him to its witness list a little less than two weeks prior to the merits hearing. We cannot say the exclusion of the testimony of Dr. Page was error, see generally Alsobrook v. State Div. of Retirement, 600 So.2d 1173 (Fla. 1st DCA 1992), even though, in other circumstances, notice almost two weeks ahead of trial or hearing might preclude excluding a witness. It was within the discretion of the judge of compensation claims to deny this addition to the County's witness list, which came eight months after it should have been included in the pretrial stipulation, particularly where the County could offer no good explanation for its failure timely to disclose a witness who had been known to the County since the date of the accident. See Metropolitan Dade County v. Sperling, 599 So.2d 209, 210 (Fla. 3d DCA 1992); Binger.

Unavailability of Evidence

The record is clear that the County sold the accident vehicle before the claimant's counsel examined it. The County's records indicate that the vehicle was still in the County's possession when it denied the claimant's request for production. If the records are accurate, the net effect of this misrepresentation was to deprive Mr. Bermudez of the opportunity to examine the vehicle, just as if it had actually been destroyed prior to his request for production.

In the amended final order, the judge of compensation claims denounced the County's "lack of a true effort to locate and preserve the vehicle in question, which they had already evaluated"; found that the County had "by neglect or design" made material misrepresentations to the claimant and his attorney; and concluded that the proper remedy was to exclude the testimony of Lt. Sada and Mr. Christian.

What sanctions are appropriate when a party fails to preserve evidence in its custody depends on the willfulness or bad faith, if any, of the party responsible for the loss of the evidence, the extent of prejudice suffered by the other party or parties, and what is required to cure the prejudice. See Federal Ins. Co. v. Allister Mfg. Co., 622 So.2d 1348, 1350-52 (Fla. 4th DCA 1993); Rockwell Int'l Corp. v. Menzies, 561 So.2d 677, 679-80 (Fla. 3d DCA 1990); Hirsch v. General Motors Corp., 266 N.J.Super. 222, 628 A.2d 1108, 1127-29 (1993).

Intentional destruction of evidence will almost invariably warrant imposition of sanctions against the offending party. Even dismissal of a claim or defense may be appropriate where there has been willful or malicious destruction of relevant evidence, see Alexander v. National Farmers Org., 687 F.2d 1173, 1205 (8th Cir.1982); Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 365 (D.Mass.1991); Allister Mfg. Co., 622 So.2d at 1351-52, but less drastic measures are ordinarily appropriate where relevant evidence was inadvertently destroyed. See Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987) (rebuttable presumptions used to shift burden of production and/or proof concerning contents of lost medical records); Headley, 141 F.R.D. at 365 (exclusion of expert evidence); Allister Mfg. Co., 622 So.2d at 1352 (exclusion of expert testimony and/or use of inferences favorable to prejudiced party); Hirsch, 628 A.2d at 1129-30 (exclusion of expert evidence).

After the County had gained exclusive possession of the wrecked automobile, it retained Mr. Christian to perform an expert evaluation of the car and a reconstruction of the accident. Mr. Christian's report, submitted on November 13, 1991, led the County to assert the seat belt defense. The County knew or should have known when it received the report, if not before, that the vehicle was material evidence which it had a duty to preserve. County of Solano v. Delancy, 264 Cal.Rptr. 721, 729-30 (Cal.Ct.App.1989) (ordered not published); Hirsch, 628 A.2d at 1122-24.

Exclusion of expert testimony based on an examination of evidence which a party has taken custody of but subsequently loses is ordinarily appropriate, where it appears that the party offering the evidence and responsible for the loss knew, or reasonably should have known, that the evidence was material to pending or impending...