King v. Auto Supply of Jupiter, Inc.
31 FLW D137
JCC denied admissibility of surveillance films because of violations of rules governing pre-trial practice and procedures by employer/carrier. The surveillance films were then shown to the treating physician who determined that the claimant was not in need of attendant care. Based upon the doctor’s opinion after reviewing the surveillance records that were not admitted into evidence, the JCC denied the claim for attendant care.
Section 90.704, Florida Statutes, authorizes the reception into evidence of an expert’s opinion, even though the facts or data underpinning the opinion may be inadmissible, if the expert can reasonably rely on those facts or data. To a large extent, the answer to the question of the expert’s opinion admissibility depends on the trustworthiness of the information supporting the opinion. If the source of the information relied upon by the expert is inherently untrustworthy, the medical expert’s opinion may be substantially compromised by his reliance on such information.
The trustworthiness of the information relied upon by the medical expert in this case was dependent on whether the information relied upon fit within the business records provisions of Section 90.803(6), Florida Statutes. The foundational elements of proof for the admission of documents into evidence under this section compels a showing that the business records were: 1) made at or near the time of the event; 2) by or from information transmitted by a person with knowledge; 3) kept in the course of a regularly conducted business activity; and 4) it was the regular practice of that business to make such records.
Court determined that the surveillance films/reports would have been admissible in this instance even though the person who actually performed the surveillance did not testify. The owner/president/records custodian of the investigative service testified. Upon qualification, court determined that such records custodian could authenticate the surveillance report and provide a basis for its admissibility. The surveillance report was admissible into evidence as a business record without the testimony of the actual individual who performed the surveillance.