Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Gonzalez
| Decision Date | 01 November 2012 |
| Docket Number | No. 3D11–1357.,3D11–1357. |
| Parties | MOUNT SINAI MEDICAL CENTER OF GREATER MIAMI, INC., etc., Appellant, v. Rosalia GONZALEZ, as Personal Representative of the Estate of Antonio Gonzalez, deceased, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Falk, Waas, Hernandez, Cortina, Solomon & Bonner and Norman M. Waas; Greenberg Traurig and Elliot H. Scherker and Julissa Rodriguez, Miami, for appellant.
Peter P. Sotolongo; Goldberg & Rosen and Judd Rosen; Joel S. Perwin, Miami, for appellee.
Before WELLS, C.J., and FERNANDEZ, J., and SCHWARTZ, Senior Judge.
Rosalia Gonzalez sued Mount Sinai hospital for the wrongful death of her husband, Antonio Gonzalez. She claimed that, as she and her husband descended steps at Mount Sinai's main bus stop, he fell and broke his hip, as a result of which he passed away a few weeks later. The jury returned a large verdict for the plaintiff, upon which judgment was entered after it was reduced by an uncontested remittitur. Because the plaintiff did not present competent evidence that her husband even fell on or down the steps—let alone that he did so because of their defective condition—rather than on the sidewalk adjacent to the bus stop, and thus failed to show that Mount Sinai's alleged negligence was a legal cause of the accident, we reverse.
The sum total of Mrs. Gonzalez's claim was that her husband was injured as a result of the hazardous condition of the hospital steps.1 The record, however, confirms the absence of probative evidence upon which the jury could have concluded that the accident took place on the steps and that, therefore, their condition was even related to the accident. Indeed, it shows just the opposite:
The only probative, direct testimony on the issue was that of driver Fausto Manzo, who was sitting in his bus, awaiting passengers. He testified that he saw the fall itself and that the Gonzalezes had already reached the sidewalk when it occurred. He stated:
Q. What were you doing when this incident happened?
A. Well, when the gentleman fell, I had pulled in at Mount Sinai and the passengers got off. The gentleman, I remember,he was coming down. Afterwards, he was on the sidewalk and he rushed to the bus and he fell [e.s.]. He was with his wife. I believe it was his wife.
....
Q. You said they came down. What did they come down?
A. Well they came down the steps. There were a couple of steps there.
Q. And they had competed [sic.] coming down the steps when you saw this gentleman fall down?
A. Yes, sir.
Q. Was he walking on the sidewalk?
A. Yes. When he fell down, he was on the sidewalk, sir [e.s.].
He confirmed this account in a call to his dispatcher immediately after the accident had occurred.2,3
On the “other side” of the issue, we find is only empty evidentiary space.
1. Her primary reliance is on her own testimony, which although it contains statements that support her claim, was on analysis, no more than speculative and conclusory and thus valueless. On direct examination, Mrs. Gonzalez admitted that she did not see her husband fall, but rather, after the fact, deduced what had occurred:
I was on the other one [step] already. But upon coming down I don't know what happened to him. I was looking at him. What I'm deducing from this is that he instead of stepping on the other step, went towards the sidewalk.
On cross examination, Mrs. Gonzalez stated that she was only speculating as to what had occurred:
Q. I was asking you before the break where your husband's feet were when he fell. You do not know where his feet were at the time that he tripped, correct?
A. I just saw that he was looking to balance himself or something. So then I quickly see him on the floor, so I was looking at him or his feet. ....
Q. Mrs. Gonzalez, even as we sit here today, you don't know why your husband fell, do you?
A. Well, I didn't see it, but I would imagine—I imagine that he—on that step, he didn't see it or he stepped on it, on the very edge of it and slipped [e.s.].Indeed, Mrs. Gonzalez confirmed that she returned to the scene of the accident the next day, just to try and figure out how the accident happened, stating “I went back there to see and to—how he fell and how it would have been.” Opposing counsel clarified:
Q. You just don't know. These are things that you're guessing at?
A. [Mrs. Gonzalez] Yes, I do suppose that because I was looking toward what I was doing. I wasn't looking at him.
This testimony falls directly under the holding in Gooding v. University Hospital Building, Inc., 445 So.2d 1015, 1018 (Fla.1984) (quoting Prosser, Law of Torts § 41) (footnotes omitted), that “[a] mere possibility of ... causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” See Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., 881 So.2d 565, 569 (Fla. 3d DCA 2004) ().
2. The plaintiff's reliance on her engineering expert is likewise misplaced. His testimony was arguably sufficient as to whether the steps were properly constructed, see, e.g., Millar v. Tropical Gables Corp., 99 So.2d 589, 590 (Fla. 3d DCA 1958) (), and, although with less certainty, whether those defects could be deemed the legal cause of Mr. Gonzalez's otherwise unexplained falling upon and down the steps. See Wong v. Crown Equip. Corp., 676 So.2d 981, 983 (Fla. 3d DCA 1996) (Schwartz, J. dissenting) (); Majeske v. Palm Beach Kennel Club, 117 So.2d 531, 533 (Fla. 2d DCA 1959) (); but see Wong, 676 So.2d at 983 ( ). His testimony on the key issue of causation, however, was decidedly not. He stated as follows:
My opinion is there's a high engineering probability that this was the cause of such a misstep. As long as that condition existed, it's a dangerous condition and the likely cause of missteps.
It is obvious that this testimony was not only well beyond the witness's supposed expertise but totally “conclusory in nature and ... unsupported by any discernible, factually-based chain of underlying reasoning.” Div. of Admin. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981) (). As Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957), explains:
It is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.
See Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050, 1056 (Fla. 3d DCA 2009) (); see, e.g., Cedars Med. Ctr., Inc. v. Ravelo, 738 So.2d 362, 369 (Fla. 3d DCA 1999) (); Rodriguez v. Pino, 634 So.2d 681, 686 (Fla. 3d DCA 1994) ( ).
3. Finally, the appellee points to the obviously hearsay (but unobjected to) contents of a treating physician's report in the hospital records apparently referring to the now deceased's account of the accident:
This is an 86–year–old male who was walking off the bus with his wife and then, after the third step, he caught the edge of his foot and was unable to get his balance, falling with severe pain and discomfort in his left hip. [e.s.]
Even putting aside the fact that no finding may be based even on unchallenged hearsay alone, see Rothe v. State, 76 So.3d 1010, 1011 (Fla. 1st DCA 2011) (); Perry v. Bradshaw, 43 So.3d 180, 181 (Fla. 4th DCA 2010) (); Velilla v. Williams Island, 705 So.2d 1044, 1045 (Fla. 3d DCA 1998) (), this evidence is also markedly deficient. This is because while the report says that the accident occurred as he was walking off the bus, the account was not only contrary to the established historical facts, but to the showing the plaintiff herself attempted to and was required to make: that the accident occurred as Mr. Gonzalez was going and fell down the steps as a result of their defective condition.
IV
All of this was confirmed by a partial summary judgment granted in the hospital's favor some eight months before trial, in which the trial court correctly concluded:
The Court makes the following findings of fact: 1) Decedent was 86 years of age at the time of fall; 2) Decedent had a history of 2...
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