Florence SMITHSON, Appellant,
v.
V.M.S. REALTY, INC., Appellee.
District Court of Appeal of Florida, Third District.
*261 Stephen Cahen; Joseph C. Segor, Miami, for appellant.
Kubicki, Bradley, Draper, Gallagher & McGrane and Betsy Gallagher, Miami, for appellee.
Before SCHWARTZ, C.J., BASKIN, J., and JOSEPH P. McNULTY, Associate Judge.
BASKIN, Judge.
Florence Smithson's husband, a manager at the Kendall Mall theatre, was robbed and murdered while attempting to make a deposit in the night depository of a bank located in the Kendall Mall. Appellant Smithson instituted a wrongful death action against V.M.S. Realty, Inc., owner of the Kendall Mall. After a five-day trial, the jury entered a verdict in favor of VMS. Mrs. Smithson appeals from the adverse final judgment. She raises several points; one merits reversal.
Mrs. Smithson argues that the trial court erred in permitting defendant to use an expert witness as a conduit for the introduction of inadmissible and prejudicial hearsay testimony. VMS responds that the expert witness was entitled to rely on inadmissible evidence as the basis for his opinion.[1]
A review of the record convinces us that the trial court erred in permitting the introduction of incompetent testimony. Although an expert witness is entitled to render an opinion premised on inadmissible evidence when the facts and data are the type reasonably relied on by experts on the subject, Bender v. State,
The purpose of expert testimony is to "assist the trier of fact in understanding the evidence or in determining a fact in issue ... .," § 90.702, Fla. Stat. (1985), but "expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought." Husky Indus., Inc. v. Black,
Furthermore, although the court repeatedly and emphatically informed defense counsel that testimony as to Mr. Smithson's resistance to the robbery was not admissible, the court permitted defense counsel to question the expert witness concerning whether Mr. Smithson complied with the company directive to accede to robbers' demands. The expert responded, "No." That answer was tantamount to evidence that Mr. Smithson resisted the robbery, a matter the trial court stated was not at issue. The prejudicial nature of the testimony was not cured by the court's instruction that a victim "is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments... ." See Simmons v. Baptist Hosp. of Miami, Inc.,
Our resolution of this issue renders the remaining issues moot.
Reversed and remanded for a new trial.
NOTES
Notes
[1] VMS incorrectly contends that this issue was not preserved for review. At trial, appellant's counsel objected to the expert's testimony as hearsay in a motion in limine and during the expert's testimony. The court denied the motion and overruled counsel's objections. Counsel's actions preserved the issue for review. § 90.104(1)(a), (2), Fla. Stat. (1985); see Simmons v. Baptist Hosp. of Miami, Inc.,
[2] Appellant has not raised the possibility of bias in their statements. See Dallas & Mavis Forwarding Co. v. Stegall,
