93 So. 3d 1076
Fla. Dist. Ct. App.2012Background
- Estate sues Tandem for wrongful death of Mrs. Gagnon, an Alzheimer’s patient with swallowing issues at Tandem’s facility.
- Tandem defended that death arose from an arrhythmia linked to Seroquel and Abilify, not choking.
- Tandem sought to admit an FDA advisory and black box warning about these drugs to support causation defenses.
- Trial included contested causation with competing medical experts and witnesses.
- Court admitted the FDA advisory under the public records exception and later excluded certain hearsay and sequestration issues.
- Ultimately the court reversed on the excluded testimony (new trial) and affirmed on other points.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of FDA advisory as public record | Estate: advisory is not admissible public record | Tandem: advisory falls within public records/public-office activities | Advisory admissible as public record (activities of the agency) |
| Exclusion of kitchen worker testimony about choking statements | Estate sought admission as party-admission and excited utterance | Samsoondar testimony was hearsay/unreliable | Error to exclude; remanded for new trial (harmlessness not shown) |
| Sequestration of survivors in courtroom | Survivors are real parties in interest and should be allowed in | Survivors are not parties under sequestration Rule; only personal representative exempt | Exclusion of other children affirmed; trial court not abusing discretion |
Key Cases Cited
- Thee v. Manor Pines Convalescent Ctr., Inc., 235 So.2d 64 (Fla. 4th DCA 1970) (admission of employee statement admissible as party admission)
- Keyes v. Tallahassee Mem’l Reg’l Med. Ctr., 579 So.2d 201 (Fla. 1st DCA 1991) (unidentified employee statements admissible under 90.803(18)(d) when reliable)
- Yearby v. Metropolitan Dade Cnty., 580 So.2d 186 (Fla. 3d DCA 1991) (admissions by party/agent need not be based on personal knowledge, reliability standard varies by context)
- Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527 (Fla. 2d DCA 1992) (admission by party’s agent admissible if within scope of employment)
- Scholz v. RDV Sports, Inc., 710 So.2d 618 (Fla. 5th DCA 1998) (admission by agent exception extends even without personal knowledge of declarant)
- Metropolitan Dade Cnty. v. Yearby, 580 So.2d 186 (Fla. 3d DCA 1991) (see Yearby above (duplicate listing))