Accident reconstructionists are expert witnesses who provide valuable information and analysis in car accident cases in both civil and criminal courtrooms across Florida. Recently, Frank Fore, an expert witness, was retained to investigate an accident where the victim died, and the State of Florida had already obtained a conviction against the other driver for driving while under the influence of alcohol (DUI) and for vehicular homicide. The case is pending in Palm Beach County, Florida.
In support of his opinion(s) defending the driver, the expert witness filed an affidavit in which he changed his findings after learning from the State of Florida’s expert that his conclusions based on black box data from the victim’s Toyota had been incorrectly drawn. According to court records, the expert immediately notified the defendant’s DUI lawyer that his opinions were wrong, but failed to amend his prior expert testimony (affidavit), informing neither the trial judge nor the State’s Attorney. Rather, he waited until his deposition was taken by the State’s Attorney to advise the others of his mistake.
The State’s attorney sought to hold the expert in civil contempt for his conduct, and the Palm Beach trial judge agreed, not only ordering that the expert be held in civil contempt but also imposing a compensatory fine. The trial judge found that Mr. Fore’s testimony was “materially false” and that his report had been prepared with “reckless indifference to its truth.” However, the Court failed to find that the expert’s conduct was intentional rather than merely reckless, nor that he was in violation of a specific court order. Additionally, it ordered that Mr. Fore pay a civil contempt fine of $6,667.70 to the State of Florida.
How a witness’s conduct is legally regulated and punished in Florida (as being in contempt in addition to subject to a fine) differs significantly from the rules controlling the conduct of a party in the litigation, in this case the defendant driver or State of Florida.
The contempt order and fine were appealed to the Florida’s 4th District Court of Appeal, which has jurisdiction over Palm Beach County trial courts. The appellate court reversed the judge’s sanctions and found that they were improperly ordered because the court had failed to find that Mr. Fore’s conduct was intentional.
A fatal deficiency in the civil contempt finding is that Fore did not intentionally violate a court order. Judges have the inherent power to punish those who fail to respect the Court and who violate given orders in the interest of a maintaining the “interests of orderly government.” In fact, Florida’s Supreme Court ruled in 1956 that civil contempt proceedings are appropriate when a “party” violates a decree. However, the case law clearly allows this only when there is a) a violation of a specific order and b) a finding that the violation was intentional and c) the sanction applies to parties, not witnesses.
I applaud the appellate court’s reversal of sanctions here. Even though the defendant had been convicted of a horrible crime, he is still entitled to a post-conviction defense, and case law such as this could be used and abused to discourage other witnesses from participating in both civil and criminal cases when their testimony could be used against them in contempt proceedings and subject them to fines or worse.
Expert witnesses have a constitutional right to free speech, due process, and access to the court; the clients they consult for have their very freedom at stake in criminal cases. In civil case—such as car accidents, slip and falls, medical malpractice, and accidents that occur on cruise ships—they have at stake their ability to obtain compensation for medical expenses, time lost from work, and pain and suffering. Accordingly, they need to rely upon experts to analyze, investigate, and testify on behalf of both parties freely and honestly, without fear that they could end up being held in contempt of court. Of course, this does not apply to parties and their lawyers, who have a much higher obligation and responsibility to conduct themselves ethically, honestly, and professionally.
Contacting a Miami Car Accident Lawyer
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1 Defense counsel paid the fine and is not an appellant, so we do not consider the propriety of the sanction as applied to him.
2A “longstanding principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (quoting Dade City. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999).