Third District Court of Appeal
State of Florida
Opinion filed January 27, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1920
Lower Tribunal No. 17-18241
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Gail Johnson Dayes, etc.,
Appellant,
vs.
Werner Enterprises, Inc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Antonio
Arzola, Judge.
Falk, Waas, Hernandez & Solomon, P.A., and Glenn P. Falk; Russo
Appellate Firm, P.A., and Elizabeth K. Russo and Paulo R. Lima, for
appellant.
The Brownlee Law Firm, P.A., and Michael M. Brownlee (Orlando), for
appellees.
Before LOGUE, SCALES and LINDSEY, JJ.
LOGUE, J.
In this wrongful death case, Gail Johnson Dayes, the personal
representative of the estate of her husband Harold Dayes, appeals a final
judgment entered after a jury trial. Dayes was killed at work when a tractor-
trailer backed over him. Mrs. Dayes sued Werner Enterprises, Inc., the owner
of the tractor-trailer, and its employee, Vincent Minott, the driver (hereinafter,
collectively “the Defendants”). Among other things, Mrs. Dayes contends the
trial court erred in allowing the Defendants to read to the jury the deposition
of a police detective who testified that another officer told him Dayes had an
earbud in his ear when lying on the ground after the accident. We reverse
because this testimony constituted inadmissible hearsay and the
Defendants, as the beneficiaries of the error, have not met their high burden
of establishing “there is no reasonable possibility that the error contributed
to the verdict.” Special v. W. Boca Med. Ctr.,
160 So. 3d 1251, 1256–57 (Fla.
2014).
FACTS
The accident happened one morning around eight at a Coca-Cola
distribution center in Broward County, Florida in 2017. Harold Dayes was a
63-year-old security guard working for a third-party contractor named
Securitas Security Services USA. He was tasked with logging tractor-trailers
out of the distribution center. Dayes would check the load of a trailer and affix
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a seal to its doors before the trailer left the property. He had been working
this job for approximately one month before his death. The tractor-trailer that
killed him was owned by another third-party contractor named Werner
Enterprises, Inc. and driven by its employee, Vincent Minott.
The trial got off to a rocky start in voir dire when the Defendants asked
a juror “Could you imagine how you’d feel if somebody told you [that] you
killed someone and you don’t think it’s your fault? Do you think there’s pain
and suffering on both sides of this equation?” The trial court sustained an
objection but denied a mistrial. The Defendants, however, returned to this
theme in their opening (“Mr. Minott . . . lives this day every day. Particularly
on Sundays because he remembers having conversations with Mr. Dayes
about watching football . . . And so it particularly hits him on Sundays . . . .
We’re going to ask you to avoid making this tragedy worse . . . .”). The trial
court again denied a mistrial.
During the trial, it was undisputed that in the moments before the
accident, Minott drove a tractor-trailer out of a warehouse bay. He realized
the truck was empty, got out of the cab, and showed Dayes the paperwork
and the number on his trailer. They agreed the empty trailer had to be
returned to the warehouse. At this point, the parties presented competing
narratives. The Plaintiff contended that Minott walked quickly back to the cab,
3
rejected the longer, but safer option of driving forward to return to the bay,
and negligently backed up without taking basic precautions like first locating
Dayes and ensuring he was not behind the trailer, even if this involved getting
out of the truck again.
The Defendants contended that Minott told Dayes he intended to return
the empty tractor-trailer by backing up. Minott walked back to the cab,
climbed in, carefully checked his mirrors, could reasonably assume Dayes
had gone back into his office, had no reason to think Dayes would have
moved to the blind spot behind the trailer, twice honked his horn, and slowly
backed up at a rate that allowed Dayes ample latitude to step clear if Dayes
had been paying attention.
Much of the Plaintiff’s case was devoted to attacking alleged
inconsistencies in the driver’s version of events. One potential inconsistency
concerned whether Minott actually sounded his horn. For example, the one
independent witness to the accident did not hear the driver sound the truck
horn; that witness, however, was using a loud pressure cleaner at the time.
Minott also said that at one point he honked the truck’s quieter “city horn”
and, at another point, the truck’s louder “air horn.” The Plaintiff’s attacks on
Minott’s testimony were sufficiently persistent that the trial court allowed the
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Defendants to bolster Minott’s testimony with a prior consistent statement, to
which the Plaintiff objected.
Given the attacks on Minott’s testimony, the question of why, if Minott
had sounded his horn, Dayes had ignored it, became a feature of the trial.
For example, the Defendants set up this question for the jury by asking their
own driver, Minott, whether he could understand why Dayes ignored the
horn:
Q. Can you think of any reason, based on how long
you’ve been around tractor trailers, why someone that
was anywhere near your vehicle wouldn’t have heard your
air horns?
A. I don’t know how -- how he didn’t hear. That’s the
reason why I honk it twice.
After posing the question, the Defendants answered it: Dayes was
wearing at least one earbud. Over the Plaintiff’s hearsay objection, the trial
court allowed the Defendants to read a portion of the deposition of Detective
Morales who conducted a traffic homicide investigation. In the disputed
testimony, Detective Morales testified that another officer, Sergeant Franks,
told him that Dayes had been wearing at least one earbud as he lay dying
on the ground after the accident:
Q. All right. Were you able to determine whether the
deceased was using any equipment, like a headset or a
cell phone or anything like that?
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A. There is a -- there is a comment in my report.
Sergeant Franks advised me he did have -- there was a
statement in my report. You can, I guess, get it from
Sergeant Franks -- did advice that he was . . . he did have
a Bluetooth-type headset. He described it as earbuds
which connect behind. And he advised me there was at
least one in the ear at the time when he was trying to
administer first aid. He could not tell if the other one was
in or out. He could not recall.
The Defendants’ expert testified at length regarding his opinion that the
use of earbuds by Dayes explained how Minott could sound the horn but
Dayes not heed it:
Q. Now, as a part of your analysis, have you
considered the impact that wearing earbuds would have
had on Mr. Dayes’s ability to hear the auditory cues that
were going on around him before the backing maneuvers
had begun?
A. Yes, sir.
Q. And what opinion have you developed with
respect to the use of air bud -- earbuds, I’m sorry.
A. So if Mr. Dayes was wearing an earbud, it would
reduce the amount of sound transmitted through that one
ear. So we know that earbuds were recorded as part of
his belongings and were reported as something that he
carried with him. However, we don’t know what those
earbuds are, but if they were being used, then within that
ear, it would reduce the amount of sound transmitted.
Q. Okay. And would that be true if he had them in
both ears or one ear? Help me understand that a little bit.
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A. So any ear that had an earbud within it, that ear
would experience a reduction in the amount of sound
transmitted.
Q. If we assume for a moment that Mr. Dayes had
an earbud in only one ear, how would that impact -- and
the other ear was empty, how would that impact his ability
to hear the various auditory cues going on before this
vehicle began its backing maneuver?
A. So that would reduce the sound in the one ear. It
would not affect the sound transmission through the other
unplugged ear.
Q. All right. And if he was wearing earbuds in both
ears, how would that impact his ability to hear the auditory
cues, assuming he wasn’t playing any music or had any
sort of input through those earbuds?
A. Assuming that both ears had earbuds in, it would
just be a global reduction in the sound transmission. So
everything would be softened.
Q. And if he had some sort of auditory -- either a
podcast or music playing through these earbuds, how
would that impact his ability to hear the auditory cues?
A. So in addition to the . . . dampening or reduction
of sound transmission from the external or sounds
produced by the truck, there would also be masking
created by anything being played on those -- through the
earbuds. So it would be masking or interference that
would help to hinder or provide a hindrance to his ability
to hear those sounds.
The Defendants’ expert even explained how Minott’s testimony that he
and Dayes had a conversation could be reconciled with Dayes having an
earbud in his ear:
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Q. Now, can people be wearing earbuds, take them
out to have a conversation with somebody, and then put
them back in when they go -- when they’re done having a
conversation? . . . Is that something that you’ve
experienced as a human factors scientist?
A. Yes.
The jury’s interest in this issue is evident by the fact that it asked the expert
a question about the horn. 1
Whether Minott sounded his horn was also a feature of the closing
arguments. The Plaintiff, for its part, accused Minott of “telling an inconsistent
story” about sounding his horn. In response, the Defendants made the
earbuds a theme in their closing argument. After noting Dayes ignored the
air horn, the Defendants asked rhetorically, “[Why] did he not hear it? Why?
Because of the earbud? Who knows?” Later, again noting Dayes did not
move out of the way of the truck even though Minott testified he honked his
air horn, “How did an air horn not prompt that, unless he’s got an earbud? I
don’t know. That’s for you all to decide.”
On the issue of liability and proximate cause, the first two questions on
the verdict form were: (1) “Was there negligence on the part of Vincent Minott
1
The jury asked, “Would duration of sound horn have made a difference for
audible cues?” The expert answered that the duration would not have made
a difference provided the horn sounded for at least a quarter of a tenth of a
second.
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which was a legal cause of the death of Harold Dayes? Yes or No. If your
answer to question 1 is NO, your verdict is for the defendants, and you
should not proceed further except to date and sign this verdict form . . . .”
and (2) “Was there negligence on the part of Harold Dayes which was a legal
cause of his death?” The jury answered “no” to the first question and did not
reach the second question. After the post-trial motions were denied, this
appeal followed.
ANALYSIS
Mrs. Dayes raises four issues on appeal. We address and decide only
one.2 Mrs. Dayes argues the trial court erred by admitting Detective
Morales’s testimony that Sergeant Franks said Dayes had an earbud in his
ear because this testimony was inadmissible hearsay.
The decision to admit evidence is reviewed under the abuse of
discretion standard. See Simmons v. State,
934 So. 2d 1100, 1116 (Fla.
2006) (“A trial court has wide discretion concerning the admissibility of
evidence and the range of subjects about which an expert can testify.”).
2
Among other things, Mrs. Dayes also appeals (1) the trial court’s refusal to
grant a mistrial after the Defendants’ appeal to the jury’s sympathy during
voir dire and opening statements; (2) the trial court’s decision to allow the
Defendants to bolster Minott’s testimony that he sounded the horn with a
prior consistent statement; and (3) the trial court’s refusal to grant a directed
verdict after allowing the Defendants to place the Plaintiff’s employer on the
verdict form as a Fabre defendant. We do not reach these other issues.
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“However, a ‘[trial] court’s discretion is limited by the evidence code and
applicable case law. A [trial] court’s erroneous interpretation of these
authorities is subject to de novo review.’” City of Miami v. Kho,
290 So. 3d
942, 944 (Fla. 3d DCA 2019) (quoting Bank of Am., N.A. v. Delgado,
166 So.
3d 857, 860 (Fla. 3d DCA 2015)).
Here, we assume, but do not decide, that Detective Morales was
testifying as an expert on this point. The Florida Evidence Code addresses
the extent to which an expert may testify to inadmissible facts that form the
basis of an expert opinion:
The facts or data upon which an expert bases an opinion
or inference may be those perceived by, or made known
to, the expert at or before the trial. If the facts or data are
of a type reasonably relied upon by experts in the subject
to support the opinion expressed, the facts or data need
not be admissible in evidence. Facts 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.
Fla. Evid. Code § 90.704 (emphasis added).
While an expert may undoubtedly rely on hearsay in rendering
opinions, “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.’” Linn v. Fossum,
946 So. 2d 1032, 1037–38 (Fla.
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2006) (quoting Erwin v. Todd,
699 So. 2d 275, 277 (Fla. 5th DCA 1997)).
The reason for this rule is obvious: “[w]hen an expert’s testimony acts as
a conduit for inadmissible hearsay, the evidence is presented to the jury
without affording the opposing party an opportunity to cross-examine and
impeach the source of the hearsay.”
Id. at 1038 (citing Gerber v. Iyengar,
725 So. 2d 1181, 1185 (Fla. 3d DCA 1998)).
The rule and its rationale apply with particular force here. The other
witnesses who saw Dayes on the ground either could not recall whether he
had an earbud in his ear or did not testify to it. While there was evidence that
Dayes had earbuds on his person, and Mrs. Dayes testified that he used
earbuds for work purposes, the only evidence that Dayes had an earbud in
his ear came from Detective Morales’s relating what Sergeant Franks told
him. However, according to quotations in the record from Sergeant Franks’s
own deposition, Franks himself could not recall whether or not Dayes had an
earbud in his ear after the accident and he could not recall making a
statement to that effect to Detective Morales. Thus, the result of allowing
Detective Morales to testify as to what Sergeant Franks allegedly saw is that
a “‘highly impeachable statement . . . was presented for the jury’s
consumption without affording . . . an opportunity to cross-examine.” Id.
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(quoting Gerber,
725 So. 2d at 1185).3 Even if Detective Morales was
testifying as an expert, admission of this hearsay was error.
Nor do we believe the error of admitting this hearsay was harmless.
The 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”:
As the appellate court evaluates whether the beneficiary
of the error has satisfied its burden, the court’s obligation
is to focus on the effect of the error on the trier-of-fact and
avoid engaging in an analysis that looks only to the result
in order to determine harmless error. Could the admission
of evidence that should have been excluded have
contributed to the verdict? Could the exclusion of
evidence that should have been admitted have
contributed to the verdict? Unless the beneficiary of the
error proves that there is no reasonable possibility that the
error contributed to the verdict, the error is harmful.
Special v. W. Boca Med. Ctr., 160 So. 3d at 1256–57 (emphasis added).
3
Alexander v. Penske Logistics, Inc.,
867 So. 2d 418, 421 (Fla. 3d DCA
2003), cited by the Defendants, does not bear on the issue before us.
Alexander held that the traffic report privilege under subsection 316.066(4),
Florida Statutes (2002), did not prevent a traffic homicide investigator from
testifying to an expert opinion he formed as part of his investigation because
he had given the party making the statement a warning under Miranda v.
Arizona,
384 U.S. 436 (1966). There is no discussion in Alexander whether
the statement was admissible, which is the issue before us. Perhaps there
was no discussion on this point because the party giving the statement was
a defendant in the lawsuit.
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The issue thus becomes whether the Defendants can prove there is
no reasonable possibility that the admission of the hearsay that Dayes had
an earbud in his ear contributed to the defense verdict. The Defendants
contend this burden is met because the earbuds were only relevant to the
issue of Dayes’s comparative negligence and the jury never reached that
issue because it found no negligence on the part of the Defendants. “What
Sergeant Franks said about the earbud,” the Defendants argue, “had nothing
to do with the question of whether Mr. Minott was negligent in his operation
of the truck.”
While the testimony that Dayes had an earbud in his ear was obviously
relevant to the issue of whether Dayes was comparatively negligent, it also
bore on the credibility of Minott’s version of events and therefore on the
question of whether Minott was negligent. A major dispute at trial concerned
whether Minott honked his horn before backing over Dayes. Three facts
supported an inference that he did not: (1) the only independent witness to
the accident did not hear the horn; (2) Dayes did not move to safety which
he most likely would have done if he had heard the truck’s horn; and (3)
Minott was inconsistent regarding which of the truck’s two horns he honked.
Among other things, the hearsay that Dayes had at least one earbud
in his ear provided the Defendants a ready way to reconcile Minott’s
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testimony that he honked the horn with the fact that Dayes did nothing to
heed the warning. The hearsay thus bolstered the Defendants’ case in chief
that they were not negligent. And the Defendants hammered on the earbuds
in their direct examination of their expert, their driver, and during their closing
argument. We must ask “[c]ould the admission of evidence that should have
been excluded have contributed to the verdict?” Special, 160 So. 3d at 1256–
57. In the facts of this case, quite clearly, it could have. For this reason, the
Defendants are unable to meet their burden to prove “there is no
reasonable possibility that the error contributed to the verdict” and we must
find “the error is harmful.” Id.
Reversed and remanded for new trial.
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