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TABLE OF CONTENTS

Pages

Table'of Citations . . . . . . . . . . . . . . . . ii-iii

Points on Appeal . . . . . . . . . . . . . . . . . iv

Statement of the Facts and Case . . . . . . . . . . 1-2

Summary of Argument . . . . . . . . . . . . . . . . 2-3

Argument :

I . THE OPINION CONFLICTS WITH FLORIDA CASELAWAND STATUTES WHICH HOLD THAT FLORIDA STATUTE§ 90.408 ONLY APPLIES TO ADMISSION OFEVIDENCE OF OFFERS OF SETTLEMENT, AND NOT TOQUESTIONS WHICH MAKE NO REFERENCE TO AN OFFEROF SETTLEMENT . . . . . . . . . . . . . . . . 3-6

II. THE FIFTH DISTRICT'S OPINION CONFLICTS WITHNUMEROUS FLORIDA CASES WHICH HOLD THAT A PARTYMAY DELVE INTO AND EXPOSE AN EXPERT WITNESS'FINANCIAL INTEREST, MOTIVE, OR BIAS, IN A CASE.THE OPINION ALSO CONFLICTS WITH FLORIDA CASELAWWHICH HOLDS THAT A COURT MAY TAKE JUDICIALNOTICE OF FACTS IN A DISTRICT COURT OPINION . 6-10

Conclusion . . . . . . . . . . . . . . . . . . . . 10-11

Certification of Type . . . . . . . . . . . . . . . 12-13

Certificate of Service . . . . . . . . . . . . . . 12-13

Certificate of Email to Court . . . . . . . . . . . 13

Appendix . . . . . . . . . . . . . . . . . . . . . A1-17.

-1-

LAW OFFICES RICHARD A. SHERMAN, P. A.

SUITE 3O2, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 •TEL. (954) 525 - 5885

TABLE OF CITATIONS

Pages

Alford v. State, 47 Fla. 1, 36 So. 436 (1904) . . . 9

Allstate Insurance Company v. Boecher,733 So. 2d 993 (Fla. 1999) . . . . . . . . . . . . 2, 8, 10

Bankers Trust Company v. Basciano, 960 So. 2d 773(Fla. 5° DCA 2007) . . . . . . . . . . . . . . . . 2, 3, 5, 6

Charles B. Pitts Real Estate, Inc. v. Hater,602 So. 2d 961 (Fla. 2"d DCA 1992) . . . . . . . ' 2, 3

Citizens Property Insurance Corporation v. Ashe,50 So. 3d 645 (Fla. 1" DCA 2011) . . . . . . . . . 2, 3, 6

Frantz v. Golebiewski, 407 So. 2d 283, 285(Fla. 3* DCA 1981) . . . . . . . . . . . . . . . 8-9

Levin v. Ethan Allen, Inc., 823 So. 2d 132(Fla. 4th DCA 2002) . . . . . . . . . . . . . . . . 2, 3, 6

Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930) . . 9

Nucci v. Nucci, 987 So. 2d 135 (Fla. 2"° DCA 2008) 1, 9

Padula v. Fonseca, 199 So. 2d 358 (Fla. 1941) . . . 9

Rease v. Anheuser-Busch, Inc., 644 So. 2d 1383(Fla. 1* DCA 1994) . . . . . . . . . . . . . . . . 2, 3, 6Sea Cabin, Inc. v. Scott, Buck, Royce & Harris,P.A., 496 So. 2d 163 (Fla. 4° DCA 1986) . . . . . 2, 3, 5

SCI Funeral Services of Florida, Inc. v. Henry,839 So. 2d 792 (Fla. 3" DCA 2003) . . . . . . . . 2, 3

State Farm Mutual Automobile Insurance Company v.German, 12 So. 3d 1286 (Fla. 5* DCA 2009) . . . . 8

Telfair v. State, 56 Fla. 104, 47 So. 863 (1908) . 9

The Florida Bar v. Gwynn, 94 So. 3d 425 (Fla. 2012) 3, 7, 8

The Florida Bar v. Tobkin, 944 So. 2d 219(Fla. 2006) . . . . . . . . . . . . . . . . . . . . 2-3, 7

REFERENCES

Fla, Stat. § 90.408 . . . . . . . . . . . . . . . . 3, 4, 5

-11-


SUITE 302. 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 . TEL. (954) 525 - 5885

TABLE OF CITATIONS (Continued)

Pages

REFERENCES (Continued)

Fla. Stat. § 90.201 (2005) . . . . . . . . . . . . 6, 7

Fla. Stat. § 90.202 (2005) . . . . . . . . . . . . 7

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SUITE 302, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 •TEL. (954) 525 - 5885

POINTS ON APPEAL

I. THE OPINION CONFLICTS WITH FLORIDACASELAW AND STATUTES WHICH HOLD THATFLORIDA STATUTE § 90.408 ONLY APPLIES TOADMISSION OF EVIDENCE OF OFFERS OFSETTLEMENT, AND NOT TO QUESTIONS WHICHMAKE NO REFERENCE TO AN OFFER OFSETTLEMENT.

II. THE FIFTH DISTRICT'S OPINION CONFLICTSWITH NUMEROUS FLORIDA CASES WHICH HOLDTHAT A PARTY MAY DELVE INTO AND EXPOSEAN EXPERT WITNESS' FINANCIAL INTEREST,MOTIVE, OR BIAS, IN A CASE. THE OPINIONALSO CONFLICTS WITH FLORIDA CASELAWWHICH HOLDS THAT A COURT MAY TAKEJUDICIAL NOTICE OF FACTS IN A DISTRICTCOURT OPINION.

-1v-


SUITE 302, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 •TEL. (954} 525 - 5885

STATEMENT OF THE FACTS AND CASE

The Plaintiff was injured in two accidents approximately two

months apart and attempted to settle the earlier of the two

accidents by way of an Offer of Settlement.

At trial, counsel for the Defendant without divulging the

existence of an Offer to Settle asked the Plaintiff questions

about statements he had made about his prior injuries, without

any reference to any Offer of Settlement.

The jury returned a Verdict favorable to the Defendant. On

appeal, the Fifth District Court of Appeal held that it was

reversible error to ask questions the Plaintiff had made about

injuries in the first accident which parallel statements from a

settlement offer, without mentioning a settlement offer.

Additionally, at trial, the Plaintiff's expert, Dr. Nucci,

testified by way of his deposition that his income from his

practice is not solely derived from Letters of Protection. Near

the close of trial, the court took judicial notice of the opinion

in Dr. Nucci's divorce case, Nucci v. Nucci, 987 So. 2d 135 (Fla.

2"4 DCA 2008), in which the court found that "Dr. Nucci is a

successful surgeon with a lucrative practice limited to patients

in personal injury litigation. His fees are paid from the

litigation proceeds pursuant to Letters of Protection from the

patients' personal injury attorneys."

The Fifth District Court of appeal held that it is

reversible error to take judicial notice of facts contained in a

District Court opinion. In doing so, the court held facts of the

-1-



Nucci opinion were hearsay and could not be used to impeach Dr.

Nucci.

SUMMARY OF ARGUMENT

The attorney for the Defendant did not make any reference to

any Offer of Settlement at trial but only asked the Plaintiff if

he had taken the position he was injured in the first accident,

and the Court of Appeal held this violated the statute against

mentioning or presenting evidence of settlement offers.

The decision in the present case conflicts with the cases of

Charles B. Pitts Real Estate, Inc. v. Hater, 602 So. 2d 961 (Fla.

2°d DCA 1992); see, Sea Cabin, Inc. v. Scott, Buck, Royce &

Harris, P.A., 496 So. 2d 163 (Fla. 4th DCA 1986); Levin v. Ethan

Allen, Inc., 823 So. 2d 132 (Fla. 4th DCA 2002); Bankers Trust

Company v. Basciano, 960 So. 2d 773 (Fla. 5th DCA 2007) ; SCI

Funeral Services of Florida, Inc. v. Henry, 839 So. 2d 792 (Fla.

3'd DCA 2003) ; Rease v. Anheuser-Busch, Inc. , 644 So. 2d 1383

(Fla. 1"' DCA 1994) ; Citizens Property Insurance Corporation v.

Ashe, 50 So. 3d 645 (Fla. 1"" DCA 2011), which hold that

§ 90.408, Fla. Stat. governs the admission of evidence related to

of fers of settlement . The Court in the present case held this

statute applied even though there was no reference to any offers

of settlement.

The opinion also conflicts with Allstate Insurance Company

v. Boecher, 733 So. 2d 993 (Fla. 1999); which holds that an

expert may be impeached by lack of candor or veracity, financial

interest, motive, or bias; and with The Florida Bar v. Tobkin,

-2-


SUITE 302, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 •TEL. (954) 525 -5885

944 So. 2d 219 (Fla. 2006) and The Florida Bar v. Gwynn, 94 So.

3d 425 (Fla. 2012), which hold that under the rules of evidence,

a court may take judicial notice of the facts contained in an

Opinion of a District Court.

ARGUMENT

I . THE OPINION CONFLICTS WITH FLORIDACASELAW AND STATUTES WHICH HOLD THATFLORIDA STATUTE § 90.408 ONLY APPLIES TOADMISSION OF EVIDENCE OF OFFERS OFSETTLEMENT, AND NOT TO QUESTIONS WHICHMAKE NO REFERENCE TO AN OFFER OFSETTLEMENT.

The court's opinion conflicts with numerous Florida cases

which hold that Fla. Stat. § 90.408 governs the admission of

evidence. Charles B. Pitts Real Estate, Inc. v. Hater, 602 So.

2d 961 (Fla. 2°d DCA 1992) ; see, Sea Cabin, Inc. v. Scott, Buck,

. Royce & Harris, P.A., 496 So. 2d 163 (Fla. 4th DCA 1986); Levin

v. Ethan Allen, Inc., 823 So. 2d 132 (Fla. 4th DCA 2002); Bankers

Trust Company v. Basciano, 960 So. 2d 773 (Fla. 5th DCA 2007) ;

SCI Funeral Services of Florida, Inc. v. Henry, 839 So. 2d 792

(Fla. 3 d DCA 2003); Rease v. Anheuser-Busch, Inc., 644 So. 2d

1383 (Fla. 1** DCA 1994) ; and Citizens Property Insurance

Corporation v. Ashe, 50 So. 3d 645 (Fla. 1®t DCA 2011), these

cases all apply § 90.408, Fla. Stat., to the admissibility of

evidence, not to cross-examination questions that parallel

statements in an Offer of Settlement.

This also conflicts with the statutory language of Florida

-3-


SUITE 302, I777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 •TEL, (954) 525 - 5885

Statute § 90.408 which clearly indicates it is a rule concerning

the admissibility of evidence and does not address situations

where no evidence of Offers of Settlement are offered or

admitted.

In the present case, the basis for the court's reversal was

not the admission of evidence but a line of questioning by the

Defendant which neither referenced an Offer of Settlement nor

sought to admit an Offer of Settlement. In other words, the

court applied Fla. Stat. § 90.408 which is a rule governing the

admission of evidence to questions that do not reference a

settlement or settlement offer whatsoever. The basis for the

court's Opinion is that the Defendants' attorney used the

Plaintiffs' Offer of Settlement letter from an unrelated case as

a personal reference in forming the questions he asked the

Plaintiff on cross-examination. He did not specifically

reference the letter, or tell the jury about the letter or offer,

so the jury was completely unaware of the existence of an offer

to settle.

Florida Statute § 90.408 states:

Evidence of an offer to compromise a claimwhich was disputed as to validity or amount,as well as any relevant conduct or statementsmade in negotiations concerning a compromise,is inadmissible to prove liability or absenceof liability for the claim or its value.

Here, to the extent that the Opinion indicates that Florida

Statute § 90.408 extends beyond the mere admission of evidence

and precludes a party from questioning the other party concerning

-4-



his injury without any reference to a settlement or settlement

of fer or any attempt to admit the Letter, is in express and

direct conflict with Florida law, which holds that § 90.408 only

governs the admission of evidence.

It goes without saying that this statute is essentially a

rule of evidence which precludes the admission of evidence of

offers to compromise. Nothing in the statute indicates that it

governs the question of a witness with questions about positions

he has taken about his injury, where there is no attempt to

question the witness specifically about the existence of an offer

to compromise, to admit the letter into evidence, or even a

reference to a settlement.

All Florida cases addressing this issue have held that Fla.

Stat . § 90 . 40 8 governs the admission of evidence . For ins tance ,

in Sea Cabin, supra, the court held that § 90.408, Fla. Stat.

(1983) bars the receipt into evidence of offers to compromise.

See, Cabin at 164.

The Fifth District in Bankers Trust Company v. Basciano, 960

So. 2d 773 (Fla. 5th DCA 2007) again discussed the statute in the

terms of admissibility of evidence and not as a rule which

prohibits a party from asking questions which coincide with

statements made in an Offer of Settlement, where there was no

reference made to the Of fer of Settlement and no attempt to admit

it into evidence:

...Further, section 90.408 only excludesevidence of fered to prove "liability or

-5 -


SUtTE 302, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA, 33316 •TEL. (954) 525 - 5885

absence of liability for the claim or its. value." § 90.408, Fla. Stat. (1999). If the

evidence is offered for another purpose, theevidence is not barred by section 90.408 andwill be admissible if it is relevant to provea material fact or issue, subject to section90.403, Florida Statutes (1999). Wolowitz v.Thoroughbred Motors, Inc., 765 So.2d 920, 925(Fla. 2" DCA 2000) (Emphasis added).

Basciano, 780.

This was also the application of the rule in Ashe, supra:

Finally, Ashe's argument that evidenceof his request for flood insurance benefitsis inadmissible under section 90.408, FloridaStatutes, also fails, as that statuteprohibits consideration of evidence ofcompromise or settlement, and Ashe'sapplication for his flood policy limits wasnot a settlement offer. The statute onlyexcludes evidence of settlement discussionsbetween Ashe and Citizens, not Ashe and hisflood insurer. Ritter v. Ritter, 690 So.2d1372, 1376 (Fla. 2d DCA 1997) (Emphasisadded).

Ashe, 655.

See also, Levin, supra, and Rease, supra:

The Fifth District's ruling is in express and direct

conflict with Florida law and must be addressed by this Court.

II. THE FIFTH DISTRICT'S OPINION CONFLICTSWITH NUMEROUS FLORIDA CASES WHICH HOLDTHAT A PARTY MAY DELVE INTO AND EXPOSEAN EXPERT WITNESS' FINANCIAL INTEREST,MOTIVE, OR BIAS, IN A CASE. THE OPINIONALSO CONFLICTS WITH FLORIDA CASELAWWHICH HOLDS THAT A COURT MAY TAKEJUDICIAL NOTICE OF FACTS IN A DISTRICTCOURT OPINION.

Judicial Notice of Facts on Face of Opinion Allowed

Under Florida law and specifically Fla. Stats. § 90.201 and



§ 90.202, a court may take judicial notice of facts included in

an opinion. The Opinion in Rubrecht expressly and directly

conflicts with this statute and Florida caselaw by holding that a

court may not take judicial notice of the substance of another

Florida case.

A case which illustrates this rule of law is The Florida Bar

v. Tobkin, 944 So. 2d 219 (Fla. 2006) in which it was held that

even under a strict application of the rules of evidence

consideration of a District Court's Opinion is proper.

Furthermore, in The Florida Bar v. Gwynn, 94 So. 3d 425

(Fla. 2012), the Florida Supreme Court re-examined Tobkin, supra,

and again noted that even under a strict application of the

evidence rules, the facts contained in a District Court's Opinion

could be judicially noticed under § 90.201, Fla. Stat. (2005):

. The referee is correct in his assessmentof the Court's case law. The Court hasclearly held that a referee in a bar

- disciplinary proceeding can properly relyupon facts established in orders anddecisions of other tribunals to support hisor her findings of fact. In Florida Bar v.Tobkin, 944 So.2d 219, 223 (Fla.2006), the

respondent challenged the referee's findingof fact as to several counts on the basisthat the findings were based on the "hearsaylanguage included in the 'unauthenticated'opinion of the Fourth District in Rose v.Fiedler, 855 So.2d 122 (Fla. 4" DCA 2003)[quashed sub nom. Hussamy v. Rose, 916 So.2d785 (Fla. 2005)]." The court rejected thischallenge, explaining that because bardisciplinary proceedings are "quasi-judicialrather than civil or criminal, the referee isnot bound by the technical rules of evidence.Consequently, a referee has wide latitude toadmit or exclude evidence and may consider

-7-



any relevant evidence, including hearsay and. the trial transcript or judgment in a civil

proceeding." Tobkin, 944 So.2d at 224(citations omitted). The Court furtherexplained that even if the rules of evidencedid apply strictly in bar proceedings, thereferee's consideration of the opinion wouldhave been proper as a matter- - decisionallaw - - which, under Section 90.201, FloridaStatutes (2005), must be judicially noticed.Id. at 224.

Gwynn, 430.

Clearly, then because the Court held that even under strict

application of evidence rules courts may take judicial notice of

the facts contained in District Court Opinions, the Opinion in

Rubrecht v. Cone is in express and direct conflict with rulings

set forth by this Honorable Court. Because the court could take

judicial notice of the Opinion, the previous Opinion was properly

used to show bias and financial interset. Furthermore, the Fifth

District's Opinion effectively eviscerates the judicial notice

rule by saying that the substance of a Florida Court's opinion is

open to interpretation and cannot be judicially noticed. If the

substance cannot be judicially noticed, there is no point to the

statute. This Honorable Court should accept jurisdiction.

Defendant Allowed to Impeach Plaintiff's ExpertsWith Lack of Veracity, Bias, Motive, orFinancial Interest

The Opinion of the Fifth District is in express and direct

conflict with numerous Florida cases, including Allstate

Insurance Company v. Boecher, 733 So. 2d 993 (Fla. 1999); State

Farm Mutual Automobile Insurance Company v. German, 12 So. 3d

1286 (Fla. 5* DCA 2009); Frantz v. Golebiewski, 407 So. 2d 283,

-8-


SUITE 302, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 •TEL, (954) 525 - 5885

285 (Fla. 3 d DCA 1981); Padula v. Fonseca, 199 So. 2d 358 (Fla.

1941); Alford v. State, 47 Fla. 1, 36 So. 436 (1904); Nelson v.

State, 99 Fla. 1032, 128 So. 1 (1930); Telfair v. State, 56 Fla.

104, 47 So. 863 (1908), which all hold that a witness' bias,

motive, or financial interest in a case which could affect his or

her testimony and should be divulged to the jury.

The Fifth District in the present case held that the court's

statement to the jury taking judicial notice of a previous Second

District Opinion of Nucci v. Nucci, 987 So. 2d 135 (Fla. 2"d DCA

2008) was impermissible hearsay, and could not be used to impeach

Dr. Nucci as evidence of bias, motive, or veracity.

In his deposition which was shown at trial, Dr. Nucci was

asked whether 100% of his income comes from Letters of

Protection, which he stated was not true (Opinion, p. 11). Near

. the end of trial, the court took judicial notice of Dr. Nucci's

divorce case, in which the Second District found that Dr. Nucci's

practice is limited to patients involved in personal injury

litigation, and that his fees are paid from Letters of

Protection. The defendant had this information judicially

noticed to impeach Dr. Nucci, showing that there were

inconsistencies between his testimony in the present case and a

previous finding of an appellate court, so that the jury could

infer that Dr. Nucci was not being candid and had financial

motive to alter his opinion. In other words, this statement was

being offered for the truth of the matter asserted, that Dr.

Nucci makes 100% of his money off of Letters of Protection, and



to show there was an inconsistency between his testimony in the

present case and a finding by a court of law. The Court of

Appeal outright rejected this contention without explanation, and

instead addressed the issue of whether the court could take

judicial notice of a previous court's finding of fact. This is

not hearsay because it is not being offered only for the truth of

the matter asserted so that it was properly noticed by the court.

As the Supreme Court said:

The information sought here would revealhow often the expert testified on Allstate'sbehalf and how much money the expert madefrom its relationship with Allstate. Theinformation sought in this case does not justlead to the discovery of admissibleinformation. The information requested isdirectly relevant to a party's efforts todemonstrate to the jury the witness's bias(Emphasis added) .

Boecher, 997.

- CONCLUSION

The decision is the present case is in express and direct

conflict with numerous cases cited in this Brief.

-10-


SUITE 3O2, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 33316 •TEL. (954) 525 -5885

Law Of f ices ofRICHARD A. SHERMAN, P.A.Richard A. Sherman, Sr., EsquireJames W. Sherman, EsquireSuite 3021777 South Andrews AvenueFort Lauderdale, FL 33316PH: (954) 525-5885 - BrowardFAX: (954) 764-7807

and

Jeffrey W. Pearson, EsquireClearwater, FL

By:Ri hard A. S er n, Sr.

Email: [email protected]

-11-



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing was emailed this 20th day of November , 2012 to:

Timothy F. Prugh, EsquirePRUGH & ASSOCIATES, P.A.1009 West Platt StreetTampa, FL 33606Email: [email protected]

Jeffrey W. Pearson, Esquire13577 Feather Sound DriveSuite 390Clearwater, FL 33760Email: [email protected]

Daniel A. Martinez, EsquireLaw Office of CALLAHAN & MARTINEZ, LLC2935 First Avenue NorthSecond FloorSt. Petersburg, FL 33713Email: [email protected]

Kristin A. Norse, EsquireStuart C. Markman, EsquireRobert W. Ritsch, EsquireKYNES, MARKMAN & FELMAN, P.A.Post Office Box 3396Tampa, FL 33601-3396

. Email: [email protected]@[email protected]

Hinda Klein, EsquireKasey L. Prato, EsquireCONROY, SIMBERG, GANON, KREVANS,

ABEL, LURVEY, MORROW & SCHEFER, P.A.3440 Hollywood BouelvardSecond FloorHollywood, FL 33021Email: [email protected]

[email protected]

CERTIFICATION OF TYPE

It is hereby certified that the size and type used in this

Brief is 12 point Courier, a font that is not proportionately

-12-



s

spaced.

CERTIFICATE OF EMAIL TO COURT

It is hereby certified that a copy of the Brief has been

emailed to the Court.

Law Of f ices ofRICHARD A. SHERMAN, P.A.Richard A. Sherman, Sr., EsquireJames W. Sherman, EsquireSuite 3021777 South Andrews AvenueFort Lauderdale, FL 33316PH: (954) 525-5885 - BrowardFAX: (954) 764-7807

and

Jeffrey W. Pearson, EsquireClearwater, FL

By:Rich rd A. S e man, Sr.

JWS/mn

--13-



INDEX TO PETITIONERS' APPENDIX

Pages

Opinion dated August 10, 2012 . . . . . . . . . . . Al-16

Order denying Rehearing, dated September 18, 2012 . A17 .



IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT JULY TERM 2012

BERNARDRUBRECHTANDCARYNRUBRECHT,

Appellant,

v. Case No. 5D10-1894

CONE DISTRIBUTING, INC., ANDNICOLE JEAN RADANK,

Appellee.

/

Opinion filed August 10, 2012

Appeal from the Circuit Courtfor Marion County,Brian Lambert, Judge.

Kristin A. Norse, Stuart C. Markman andRobert W. Ritsch, of Kynes, Markman &Feldman, P.A., Tampa, for Appellant.

- Kasey L. Prato and Hinda Klein, ofConroy, Simberg, Ganon, Krevans, Abel,Lurvey, Morrow & Schefer, P.A.,Hollywood, for Appellee.

GRIFFIN, J.

This appeal arises from a June 3, 2008, automobile accident in which a pick-up

truck driven by Bernard Rubrecht ["Rubrecht"] was rear-ended by an SUV which, in

turn, had been rear-ended by a Cone Distributing, Inc. ["Cone"] truck driven by Cone's

employee, Nicole Jean Radank ["Radank"]. Rubrecht, and his wife, Caryn Rubrecht,

appeal a final judgment which awarded Rubrecht $20,000 in damages, consisting of

$15,000 in past medical expenses and $5,000 for future medical expenses. His wife

took nothing.

After the verdict, Rubrecht filed a motion for an additur or, in the alternative, a

motion for a new trial. He asserted that the damages awarded by the jury bore no

relationship to the evidence presented during the trial, and requested that the trial court

enter a verdict for past medical expenses in the amount of $414,554.92, and future

medical expenses in the amount of $500,000. Alternatively, Rubrecht requested that

the trial court grant a new trial on the issue of damages. On the same day, Rubrecht

filed a motion for new trial, arguing that the verdict was against the manifest weight of

the evidence. He also asserted that the trial court had erred by allowing the defense to

impeach him using the contents of an offer of settlement letter his attorney had

presented for an automobile accident that occurred approximately one month before the

one at issue in the trial, and by publishing to the jury a portion of an appellate opinion in

the divorce case of Rubrecht's expert witness.

The trial court entered its order denying Rubrecht's motions. As to the first

evidentiary issue, the court concluded that it was proper to admit into evidence in the

trial of the second rear-end collision the statements his attorney had made in offering to

settle the first case. As for the second issue -- publishing portions of the appellate

opinion issued in the dissolution of marriage of Rubrecht's expert witness -- the court did

not defend the ruling, but said that any error could not have been harmful. We conclude

that both evidentiary rulings constitute reversible error.

The settlement issue arose because, approximately one month before the June

3, 2008, rear-end accident involving Cone, Rubrecht had been involved in another

2

accident in which Rubrecht's truck was rear-ended by another vehicle. The trial court

allowed defense counsel to impeach Rubrecht by questioning him about statements

made in a settlement offer letter that was written by his attorney with respect to the May

accident. The at-fault driver in that case had insurance of only $10,000, and the

settlement letter concluded by offering to settle for the $10,000 policy limits. The

following exchange about the settlement took place during Rubrecht's cross-

exa mination:

Q. Good morning, Mr. Rubrecht.

A. Good morning.

Q. All right. I've got a little bit left and then we'll wrap itup. We've heard testimony in this trial about the impact ofthe first accident and the second accident. I want to followup a little bit on that.

A. Okay.

Q. Have you, sir, after the second accident, taken theposition that, in fact, you would have future medical lossesas a result of the first accident for the rest of your life at

. 3,000 dollars a year or 99,000 dollars, total?

A. Yes, sir, through my attorney.

Q. With respect to the first accident versus the secondaccident, have you, sir, taken the position that it is certainthat your injuries from the first accident and the necessaryfuture medical treatment from that first accident would causeyou to sustain substantial economic losses in the future?

A. Can you say that again, please?

Q. Yeah. Did you take the position after the secondaccident - -

A. Okay.

3

Q. Let me ask it this way. Did you take the followingposition after the second accident with respect to the firstaccident: That it is certain that your injuries and thenecessary future medical treatment will cause you to sustainsubstantial economic losses in the future?

A. Yes, sir.

Q. Did you take the following position after the secondaccident with respect to the first accident: If your economiclosses were based on a work life of 19 years at a minimumof four dollars an hour, your future wage losses wouldexceed 158,000 dollars as a result of the first accident?

A. Yes, sir.

Q. After the second accident, did you take the followingposition with respect to the first accident: As a result of theMay accident, you will need to seek a new vocation, onewhere you are not driving many hours?

A. I'm not sure.

Q. After the second accident - -

- A. Okay.

Q. - - but with respect to the first accident, did you takethe following position: That the driving aggravates your neckand low back, and currently the reason why you areundergoing surgery with Dr. Nucci?

A. Yes.

Defense counsel did not offer the settlement letter in evidence, but each of the

foregoing "positions" inquired about by defense counsel came verbatim from the offer of

settlement letter.

On re-direct, Rubrecht testified in part that he was hurt in the first accident, that

the second accident made him worse, that his medical bills had gone up as a result of

the second accident, and that he presently was not able to work at all. When asked

why the second accident made his condition "a lot worse," Rubrecht explained:

I'm not a doctor, but I think the first accident helped me getworse from the second accident. You know what I mean? Itwas sort of intertwined.

If I wouldn't have had the first accident, I wouldn't have gotas hurt as much as the second accident; but, you know, it'sa chicken and an egg kind of thing.

Rubrecht contends that the trial court, in allowing defense counsel to cross-examine him

concerning statements made by his attorney in an effort to negotiate a settlement of his

claim arising out of the first accident, violated section 90.408, Florida Statutes.

Section 90.408, Florida Statutes (2010),' provides:

Evidence of an offer to compromise a claim which wasdisputed as to validity or amount, as well as any relevantconduct or statements made in negotiations concerning acompromise, is inadmissible to prove liability or absence ofliability for the claim or its value.

Appellees counter that their interrogation was not within the limitations of section 90.408

because the settlement negotiations in the first case did not involve the claim in the

second case. Moreover, defense counsel did not introduce the demand letter into

evidence and did not reference the settlement. They assert that, because Rubrecht

took the position in the settlement demand letter for the first accident that his injuries

and damages were caused by the first accident, but took the position during the trial of

the second accident that his injuries and damages were either completely attributable to

the second accident or, alternatively, could not be apportioned between the two

' Section 90.408, Florida Statutes, was enacted in 1976. Ch. 76-237, § 1, at 562,Laws of Fla.

5

accidents, it was proper for defense counsel to impeach Rubrecht with his prior

inconsistent position.

We start with the proposition that, in Florida, "settlements or offers of settlement

have never been considered admissions against interest binding on the parties making

them." Mortg. Guar. /ns. Corp. v. Stewart, 427 So. 2d 776, 780 (Fla. 3d DCA 1983); see

also Sullivan v. Ga/ske, 917 So. 2d 412, 414 (Fla. 2d DCA 2006) ("Because parties

often make offers to settle for economic reasons, an offer is not treated like an

admission of liability and would be of marginal relevance to the issues at trial. This

evidence is also excluded to encourage settlement discussions.").

The first question is whether evidence of statements made during settlement

negotiations is inadmissible to prove liability or the absence of liability or the value of a

claim in the lawsuit other than the one in which the offer was made. In Rease v.

Anheuser-Busch, /nc., 644 So. 2d 1383, 1388 (Fla. 1st DCA 1994), the First District

Court of Appeal discussed section 90.408, Florida Statutes, and said that "[a]

fundamental premise for the application of this [statutory) rule is that the offer to

compromise must relate to the claim disputed in the lawsuit."

Here positions taken by Rubrecht's counsel in negotiating settlement of the claim

for the first accident are related to the claim at issue in this lawsuit because a key issue

was whether Rubrecht's claim for damages could be apportioned between the two

accidents. When defense counsel was allowed to question Rubrecht about the

statements by Rubrecht's counsel, the purpose of which was to obtain the $10,000

policy limits settlement of the first accident, Rubrecht's position in this case that his

damages were attributable to the second accident, or that damages could not be

6

apportioned between the two accidents, was directly affected. See generally City of

Coral Gables v. Jordan, 186 So. 2d 60, 62 (Fla. 3d DCA 1966).

Rubrecht relles upon Sea Cabin, /nc. v. Scott, Burk, Royce & Harris, P.A., 496

So. 2d 163 (Fla. 4th DCA 1986), and Charles 8. Pitts Real Estate, /nc. v. Hater, 602 So.

2d 961 (Fla. 2d DCA 1992), for the proposition that section 90.408 is applicable to

settlements with different parties if the claim is related. In Sea Cabin, the Fourth District

Court of Appeal found that "it was error for the trial court to admit a letter from

appellants' counsel to another party suggesting that the other party was responsible for

appellants' damages and proposing a settlement of appellants' claim against that party."

496 So. 2d at 164. It explained that "[i]n addition to the fact that the letter was not

authored by appellants, Section 90.408, Florida Statutes (1983) bars the receipt into

evidence of offers to compromise," and that it "ha[d] ruled that this bar applies to

settlement offers made to third parties as well as parties to the litigation." /d.

In Hater, after a real estate sales transaction failed to close, the real estate

brokers brought suit against the sellers based upon allegations that they were entitled to

a $400,000 brokerage fee under the terms of the real estate sales contract. 602 So. 2d

at 962-63. Under the terms of the real estate sales contract, the brokers were to

receive a $400,000 brokerage fee at the time of closing; however, in the event that the

transaction did not close, the brokers would still receive the $400,000 if the failure to

close was due to the sellers' failure to perform, but would only receive 50% of the

deposit, $2,500, if the failure to close was due to the buyer's failure to perform. /d. at

962. The case went to trial, and "[t]he jury determined that the transaction had not

7

closed due to the failure of [the buyer] to perform and, accordingly, awarded the Brokers

only $2,500." id. at 963.

On appeal, the brokers argued that the trial court had erred by prohibiting

evidence of a settlement in a lawsuit between the sellers and buyer for specific

performance of the real estate sales contract, wherein the parties stipulated to dismissal

of the lawsuit, and the sellers paid the buyer "$540,000 for the settlement and received

an assignment of the buyers' rights, if any, under the agreement to sell." /d. at 963.

The Second District Court of Appeal found that the trial court did not abuse its discretion

in prohibiting evidence of the settlement, explaining that "[a]Ithough the settlement in the

case between the [sellers] and [buyer] was not an offer or [of] settlement in [the case

under review], it was a settlement of a closely related issue in the earlier case," and that

"[i]t [was] quite analogous to a settlement with a codefendant." /d.

The Second District concluded that the brokers "ha[d] not demonstrated that the

settlement had any probative value that was not substantially outweighed by the danger

of unfair prejudice or confusion." /d. It noted:

We have not overlooked the possibility that a settlement ofthis sort could "color" the testimony of the settling parties inthe subsequent lawsuit and that the settlement mightbecome admissible on an issue of credibility. In this case,the critical witnesses from [the buyer] had been deposed inat least one of the lawsuits before the settlement. One of thekey witnesses from [the buyer] had given the Brokers alengthy affidavit to support their motion for summaryjudgment in this case long before the settlement. Thus, theBrokers did not establish in the trial court that this settlementfit within any conceivable exception to the general ruleagainstadmissibility.

Id.

8

Appellees distinguish Sea Cabin because the letter offering to settle was

admitted into evidence in that case, but, here, the demand letter offering to settle the

claim for the first accident was not admitted into evidence. This is a distinction without a

difference. Under section 90.408, in addition to evidence of an offer to settle, evidence

of statements made during settlement negotiations is inadmissible to prove liability or

the absence of liability or the value of a claim. See Benoit, /nc. v. Dist. Bd. of Trustees

of St. Johns River Cmty. Co//. of Fla., 463 So. 2d 1260, 1261 (Fla. 5th DCA 1984)

(agreeing with Atwater v. Gulf Maintenance & Supply, 424 So. 2d 135 (Fla. 1st DCA

1982), that "any part of a letter offering a settlement between the parties is barred by

section 90.408;" "[t]he old common law rule was that statements of independent facts

made in an offer to compromise were admissible;" "[t]his section alters the common law

rule by giving greater protection to the offeror, thus furthering the public policy of this

state which favors amicable settlement of disputes and avoidance of litigation"

(footnotes omitted)).

Appellees contend that under Hater, evidence of Rubrecht's prior positions was

admissible as an exception to the general rule of inadmissibility because it was offered

for purposes of impeaching Rubrecht's credibility. There is language in Hater that does

suggest that evidence of a settlement might be admissible for purposes of impeaching a

settling party's testimony, but in Hater, the court appeared to reference a situation

where a settlement might include an agreement or other means to "color" a settling

party's case. This does not apply here. Here, Rubrecht's counsel's task in attempting

to settle the May 2, 2008, accident claim was to offer the most compelling case and the

most persuasive argument why the insurer in the first suit ought to tender the $10,000

9

policy limits. That is precisely the kind of negotiation the statute is designed to protect.

See Saleeby v. Rocky Elson Constr., 3 So. 3d 1078, 1081-82 (Fla. 2009), (trial court

erred by admitting evidence that a previous defendant, a truss-manufactunng company,

had settled out of the lawsuit where the basis for admission of the evidence was

impeachment of the testimony of the President of the truss manufacturing company).

The purpose of the statute is to allow counsel to communicate freely in an effort

to settle litigation without the risk that any statement made will be used against his

clients. By their nature, such communications have limited probative value. Because

the evidence of positions taken in negotiating settlement of the claim for the first

accident suggested that Rubrecht's damages were largely attributable to the first

accident, and because the issue of apportioning damages between the two accidents

was disputed in this case, the positions taken by Rubrecht's counsel in negotiating

settlement of the claim for the first accident were inadmissible. The admission of

evidence of the positions taken by Rubrecht's counsel in negotiating settlement of the

claim for the first accident was inherently and highly prejudicial with respect to the

disputed issue of apportionment of damages between the two accidents. Its admission,

therefore, constituted reversible error. See Saleeby, 3 So. 3d at 1085.

We also agree with Rubrecht that the trial court reversibly erred by taking judicial

notice of statements in Nucci v. Nucci, 987 So. 2d 135 (Fla. 2d DCA 2008), in order to

discredit his key witness, Dr. Robert Nucci, M.D.

Prior to the start of the trial, the trial court addressed Rubrecht's motion in limine,

which included a request to exclude any argument or testimony that Dr. Nucci had

stated in his divorce action that a large percentage of his practice was based upon

10

letters of protection. Prior to trial, Dr. Nucci's video deposition had been taken. The

following exchange occurred during the deposition, on cross-examination:

Q. Okay. Doctor, again, my name is Jeff Pearson. Irepresent the defendants. You accepted this casewith a letter of protection, did you not?

A. That is true.

Q. Okay. And, realistically, you don't get paid unlessthere's a recovery connected with the letter ofprotection; is that correct?

[RUBRECHT'S COUNSEL]: Which I object to.

A. Well, I can't really say on Mr. Rubrecht. I mean, he's,of course, responsible for his bills. I offered him thecourtesy of not to ask him for payment until his legalmatter is done, but i expect him to pay his bill, ofcourse.

Q. Is it true that a hundred percent of your income comesfrom letters of protection?

[RUBRECHT'S COUNSEL]: Objection.

[DR. NUCCI'S COUNSEL]: I'm going to object aswell.

[DEFENSE COUNSEL]: Okay.

A. Well, that's not true.

Q. Okay. Have your firm - - has your firm or has anyoneon behalf of you or anyone that you know added upyour letters of protection in the last five years?

[DR. NUCCI'S COUNSEL]: I'm going to object, andI'm going to move for a protective order and - - just sothat maybe we cure this objection, sir, I would remindyou that Dr. Nucci is a treater and not an expert.

[DEFENSE COUNSEL]: Okay. I'm not asking for anexpert opinion on that. I think that question wasstraight forward.

11

[DR. NUCCI'S COUNSEL]: Okay. Well,impermissible discovery, and I'm instructing my clientnot to answer.

[DEFENSE COUNSEL]: Okay. We'll certify that andtake it up with the court.

Dr. Nucci's deposition was read at trial. Prior to the close of evidence, the trial

court heard lengthy argument from the parties regarding the issue of whether two

sentences from the Second District Court of Appeal's opinion in Dr. Nucci's divorce case

should be published to the jury. The sentences at issue were the following:

Dr. Nucci is a successful surgeon with a lucrative practicelimited to patients involved in personal injury litigation. Hisfees are paid from the litigation proceeds pursuant to lettersof protection from the patients' personal injury attorneys.

Nucci, 987 So. 2d at 136. Defense counsel conceded that he was at fault for not having

filed a motion to compel Dr. Nucci's testimony after he was instructed by his counsel not

, to answer questions on the topic of the letters of protection during his deposition. He

informed the trial court that, in an effort to cure the defense's oversight, the defense was

requesting that the trial court take judicial notice of the statements in the Second

District's opinion.

Rubrecht's counsel objected to publication of this passage to the jury. He argued

that it was not competent evidence, lacked probative value and was not of any use as

impeachment because it did not conflict with Dr. Nucci's testimony. Defense counsel

argued:

But to get to the heart of your argument, I think it goes to theweight, not the admissibility. And i do not intend to say "100percent." i intend to say precisely what's in that opinion. Iwill probably have it in front of me to read it to make sure idon't get it wrong.

12

But it gets down to the heart of what you're talking about,which is this is not just a small percentage, but this is at leasta significant percentage of his livelihood. And it just goesstraight to bias. So my response is it goes to weight, notadmissibility.

At the close of evidence, the trial court "took judicial notice" of the statements in the

Nucci opinion as follows:

The Defendants have asked that I take judicial notice of abrief portion of a - - of the following information out of anopinion from the Second District Court of Appeal calledNucci, N-u-c-c-i, v. Nucci. That's Dr. Nucci you've heardabout earlier.

Okay. This is a part of the opinion in the Nucci divorce casefrom the appellate court that reads as follows:

"Dr. Nucci is a successful surgeon with a lucrative practicelimited to patients involved in personal injury litigation,"period. "His fees are paid from the litigation proceedspursuant to letters of protection from the patients' personalinjury attorneys," period. That's the end of the judicial notice.

Immediately thereafter, the defense rested.

As an initial matter, while the parties assert that the statements from the Nucci

opinion were admitted for purposes of impeaching Dr. Nucci, the nature of the

impeachment is unclear. The defendants appear to have wanted to use this language

in Nucci's divorce to impeach him on the subject of whether all (or 100%) of his income

derived from letters of protection. Rubrecht is correct that it was not viable for such a

purpose. The court, on the other hand, appeared to have allowed the statements from

the Nucci opinion to show a motive why Dr. Nucci might falsely testify about the extent

of injury and its causation, namely that his interest in getting paid through proceeds from

litigation might have biased him to falsely give testimony favorable to Rubrecht.

13

in taking judicial notice of the statements in the Nucci opinion, the trial court did

not say whether they were being admitted under section 90.201 or section 90.202,

Florida Statutes, although, prior to reading from the Nucci opinion, while hearing

argument from the parties, the trial court referenced section 90.201. Relying upon

Dufour v. State, 69 So. 3d 235 (Fla. 2011) and BDO Seidman, LLP v. Banco Espirito

Santo int'/, 38 So. 3d 874 (Fla. 3d DCA 2010), Rubrecht contends that the trial court

erred by taking judicial notice of the statements in the Nucci opinion.

In Dufour, one of the issues addressed by the Florida Supreme Court was

whether a postconviction court had erred by taking judicial notice of a "2002

postconviction proceeding and certain letters within the court file." 69 So. 3d at 253.

The Court said that while a court may take judicial notice of court records under section

90.202(6), Florida Statues, "the fact that a record may be judicially noticed does not

render all that is in the record admissible." /d. It further provided:

Thus, while the court may take judicial notice of documentsin a court file that were properly placed there, this notice

. would not make the contents of the documents admissible ifthey were subject to challenge, such as when a document isprotected by privilege or constituted hearsay. In addition,taking judicial notice of an entire prior proceeding may beexpeditious for the current proceedings, but it does not allowthe substance of the underlying materials to be entered intoevidence without compliance with the rules of evidence.

/d. at 254.

In BDO Seidman, the Third District Court of Appeal found that a "bankruptcy

order was not a proper subject of judicial notice, nor properly admissible evidence"

where "[t]he trial court [had taken] the view that the facts determined by the bankruptcy

14

court were properly admissible in [the] case." 38 So. 3d at 880. In reaching its finding,

the Third District explained:

"inadmissible evidence does not become admissiblebecause it is included in a judicially noticed court file." TheFlorida Bar, Evidence in Florida § 2.12, at 2-7 (7th ed. 2008)."Although a trial court may take judicial notice of courtrecords, it does not follow that this provision permits thewholesale admission of all hearsay statements containedwithin those court records." Sto// v. State, 762 So. 2d 870,876 (Fla. 2000) (citation omitted). "[T]here has been a'seemingly widespread but mistaken notion that an item isjudicially noticeable merely because it is part of the "courtfile."'" /d. at 877 (citation omitted).

"A court judgment is hearsay 'to the extent that it is offered toprove the truth of the matters asserted in the judgment.'"United States v. Sine, 493 F.3d 1021, 1036 (9th Cir. 2007)(citation omitted). As to those matters, there must be anapplicable hearsay exception. Sto//, 762 So. 2d at 876; §90.805 (2009); see also Charles W. Ehrhardt, Ehrhardt'sFlorida Evidence § 204.2, at 85 & n. 5 (2009).

Under the Evidence Code, a request for judicial notice isalso subject to analysis under section 90.403, FloridaStatutes. See § 90.204, Fla. Stat. "[J]udicial findings of fact'present a rare case where, by virtue of their having beenmade by a judge, they would likely be given undue weight bythe jury, thus creating a serious danger of unfair prejudice.'"Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir. 1993); see alsoSecada v. Weinstein, 563 So. 2d 172, 173-74 (Fla. 3d DCA1990). . . .

/d.

Although the Appellees correctly point out that "[n]either case addresses a trial

court's decision to take judicial notice of a portion of an appellate opinion," we think the

many reasons why this excerpt from the Nucci divorce case is inadmissible in this case

should be obvious. Hearsay is the basic reason. An appellate opinion is a writing by a

judge that derives its substance from many sources. A statement made in the opinion

15

may be true only as far as evidence appears in that case; it may be an interpretation of

evidence. A statement made in an appellate opinion cannot substitute for proof of the

fact.

In the order denying the motion for new trial below, the trial judge himself did not

defend publication of the opinion to the jury, but merely remarked that it could not have

been harmful to Rubrecht's case. On appeal, Appellees have adopted a similar

approach. Dr. Nucci's testimony was critical to the plaintiff's case, however, and any

evidence purporting to impugn his credibility or demonstrate bias was harmful. No

doubt that was the very reason defense counsel labored so intently to convince the

judge to admit it. The effect of the passage was enhanced precisely because it was the

publication of a judicial opinion of an appellate court. The timing and manner of its

presentation to the jury as a sort of ex cathedra pronouncement at the close of evidence

gave emphasis to something entirely lacking in evidentiary value. The recitation of a

statement made in an appellate opinion in one case cannot substitute for the

presentation of evidence in another case. Under whatever standard for harmless error

may prevail in Florida,2 we cannot say this error was harmless. Appellant is entitled to a

new trial.

REVERSEDand REMANDED.

PALMER and TORPY, JJ., concur.

2 See generally Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011).

16

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

BERNARDRUBRECHTANDCARYNRUBRECHT,

Appellant,

v. CASE NO. 5D10-1894

CONE DISTRIBUTING,INC., AND NICOLE JEANRADANK,

Appellee.

DATF: September 18, 2012

BY ÒRDER OF THE COURT:

ORDERED that Appellee's Motion for Rehearing, filed August 27, 2012, is

denied.

I hereby certify that the foregoing is(a true copy of) the original Court order.

PAMELA R. MASTERS, CLERK

cc:

Hinda Klein Stuad C Markman Robert W.RitschDaniel Martinez Timothy F.Prugh Jeffrey PearsonKristin Norse Kasey L.Prato

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u ) · alford v. state, 47 fla. 1, 36 so. 436 (1904) ... nucci opinion were hearsay and could not...

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