To: Re:

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At all material times, a contract existed between Peter Pierce and Danny Do Paint, Inc., which was owned and operated by Danny Pacheco and the subject matter of the contract was the painting of Peter Pierce’s house. The total contract price was to the tune of $10,000 which Peter paid. 

However, everything did not go as planned since, at the end, Peter informed Danny that he had been fired for breaching the various contractual terms to wit, the buying of a cheaper and poor quality paint, in breach of a contractual term that Danny was to settle for a higher quality that was long lasting, and second, Danny had painted a layer of the fresh paint on top of an old layer of paint without first ensuring that the entire room(s) had been pressure cleaned as per the market requirements, though this was an implied term of the contract, which would remove all the peeling hence ensure that the fresh layer of paint was painted on a cleaned surface. Further, Danny had missed a few days of work and cited that he had suffered a severe migraine.

What is most intriguing in this case is that, Peter relied on information that was passed to him by the paint manager a one Mr. Nicholas Thomson. On his part, the paint manager informed Peter that a one Walt, had informed him that Danny had settled for a cheaper and lesser quality paint because he wanted money to help his brother who had been involved in an accident, the paint manager also told Peter that Walt told him that Danny felt awful for all the misrepresentations but he had no other means of raising money. This testimony by the paint manager was admitted by the trial judge as evidence.

Further, Dr. Kaufman testified in court that Danny did make two doctor’s appointments, he further testified that Danny had gone to him since he had a headache, and the doctor prescribed to him a non-narcotic drug which would not impair his capacity to work or drive. Whilst Danny didn’t sign a medical release or authorize Dr. Kaufman to share information about his medical care, Dr. Kaufman testified that Danny had said that he couldn’t believe that he had messed with Peter’s house. This testimony was also allowed by the judge.


From the foregoing, two broad issues arise:

  1. Whether the statement by Mr. Nicholas, the paint manager, would be admitted as evidence for clearly, it was a hearsay statement?
  2. Whether the testimony by Dr. Kaufman on whatever Danny had said on messing with Peter’s house during the doctor’s appointment was privileged?


Under Section 90.801 of the Florida’s Evidence Code, it defines Hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Under section 90.802 of the Evidence Code, hearsay evidence is inadmissible. The court in the case of Bolin v State, 736 So.2d 1160, 1167 (Fla.1999) held that any testimony that is considered a hearsay is inadmissible in an adversarial criminal proceeding, hence asserting the wording of the Evidence code which expressly provides that such a testimony or evidence is admissible. This decision was cited with approval in the later decision of the court in the case of Burgess v. State No. SCOO-1724, 2002, where the court, while dealing with the issue of whether information contained in police reports was considered hearsay hence inadmissible, the court held that such reports were hearsay and did not fall under any of the exceptions to hearsay evidence, hence, hearsay evidence adduced as testimonies are inadmissible.

On the rules of privilege, the Evidence Code does not expressly provide for the Doctor-patient privilege, the closest there is, is the psychotherapist-patient privilege. Further, the Florida Statute of 1993 provides for the physician-patient privilege. The courts have also not been silent on this issue of doctor-patient privilege, the Supreme Court of Florida in the case of Acosta v. Richter 671 So. 2d 149 (1996) held that “the broad scope of section 455.241(2) of Florida Statutes (1993) provides an expansive physician patient privilege of confidentiality for the patient’s personal information with only limited, defined exceptions to the privilege for disclosure by a physician in a medical negligence action in order for a physician to defend him/herself.”


  1. On the first issue, the issue was whether the statement by the paint manager was lawfully admitted as evidence as it was hearsay. From the set of facts, it is beyond peradventure that the statements that were relied by Peter in firing Danny were made to him by the paint manager who had been told by somebody else by the name Walt, and this testimony was allowed by the trial court. From the code, and especially under section 90.801, the statements were made by another person who was not, under any circumstance subject to any examination before the court, at no point was Walt brought before the court for examination. From the cases that I have cited in the Rules section, it is the position of the court, deducing their authority and power from the Evidence Code, to disregard and therefore refuse to admit any hearsay evidence or testimony, this is the general rule, however, under the various exceptions provided for by the Code, one can, after a careful reading of the same, see that, no single exception merited the testimony made by the paint manager, hence, the position remains, the statement and testimony made by the paint manager is a hearsay, and should not have been allowed by the trial judge. So, in all honesty, the trial judge erred, both in fact and in law, in allowing the testimony made by the paint manager.
  2. On the issue of privileged information, section 455.241(2) of the Florida Statutes (1993) is couched in clear terms, the information was privileged and confidential, and it was not canvassed on the facts that the court had requested for the information from the doctor. Therefore, the judge also erred in law and in fact in admitting the statement made by Dr. Kaufman.


  1. From the law, and the analysis herein, the judge clearly erred in admitting the testimony of Mr. Nicholas Thompson for it failed, as I have shown, the test, as it was basically hearsay. Therefore, having been dissatisfied with the decision of the trial court in allowing the testimony of Mr. Nicholas, an appeal to this court is the available remedy at our disposal, since the judge erred in law and in fact in allowing the testimony, disregarding all the rules and case law on hearsay.
  2. As observed in One(1) above, the judge further erred in law and in fact  for the rules on privilege are clear, the statements were privileged, and the court had not requested for the statements, hence it was erroneous for the trial judge, to allow the testimony of Dr. Kaufman. From the foregoing, we have decided to make an appeal to the court of appeal, with the second prayer being the setting aside of the decision of the trial court in allowing the testimony of Dr. Kaufman.
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