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Bradley v. Brotman2/19/2003
ON MOTIONS FOR REHEARING
The motions for rehearing are hereby denied. We withdraw our previously issued opinion and substitute the following in its place.
We confront in this case the necessity to reverse a final judgment due to defense counsel's misconduct in the admission of evidence at trial. The trial court refused to grant plaintiff's request to exclude the evidence because plaintiff's counsel stipulated to the admission of the medical records in question. We conclude that there was no meeting of the minds as to a specific portion of the medical records, and the records should have been redacted to remove that portion regarding the doctor's opinion based upon surprise and prejudice. The trial court's refusal to redact this portion of the record was an abuse of discretion, requiring reversal for a new trial.
There are actually two different incidents involving attorney misconduct in this case. One does not require reversal. However, we detail both because at one point in the progress of this case the facts intersect.
In September 1996, Kelly Bradley, who was two years old at the time, was bitten on the lip by a dog belonging to appellee Brotman. Some weeks later her parents noticed her hair falling out. Through consultations and treatment with a number of physicians, she was diagnosed with alopecia areata, a skin disease resulting in hair loss on the scalp. Her parents ultimately filed suit against Brotman, and whether the dog bite and consequent stress could have caused or aggravated the alopecia became the main issue.
Bradley's counsel, Jon Krupnick, listed several doctors in his expert witness list for trial, including Dr. Bernhardt. Defense counsel, Reid Cocalis, moved to limit the list, and the trial court ordered the list reduced. Krupnick's amended list included only three physicians to testify on causation. Dr. Bernhardt was not on the list. When a subsequent settlement offer from Krupnick indicated that Dr. Bernhardt would have evidence to support the claim, Cocalis sought to speak to the doctor, whom he had not deposed. On May 23, 2000, just a few days before trial, Cocalis called Dr. Bernhardt without notice to Krupnick. Cocalis reminded the doctor that he had treated him in the past. He then told the doctor that he represented Brotman in this case. Cocalis asked the doctor, "off the record," if he was intending to testify regarding causation and the substance of that testimony. When Dr. Bernhardt told Cocalis to discuss the matter with Krupnick, Cocalis replied that he could not trust him. The doctor ended the call quickly and immediately called Krupnick.
Krupnick filed a motion to strike Brotman's pleadings as a result of the contact with Dr. Bernhardt, alleging that the conversation violated section 455.667(5), Florida Statutes (1999), which prevents any ex parte communication with a physician regarding a patient's condition. Because Bernhardt was a crucial witness and now would not testify, Krupnick argued a sanction should be imposed.
Brotman argued that regardless of Cocalis' conversations with Dr. Bernhardt, the doctor was not listed on the reduced expert list, and could not testify. Allowing him to do so at this late date would prejudice the defense. The court authorized Kelly Bradley's guardian ad litem to investigate the issue. After speaking with Dr. Bernhardt, the guardian reported that the contact was willful and that the doctor's trial testimony was tainted. At a second hearing on the day of trial, the court ultimately denied Krupnick's motion to strike the pleadings.
At the same time the incident with Dr. Bernhardt was being resolved, Cocalis issued two subpoenas duces tecum for
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