        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

  MARGARET SAJIUN, as Personal Representative of the ESTATE OF
             JOSE ALBERTO SOTO SANTIAGO,
                          Appellant,

                                    v.

                         DANIEL HERNANDEZ,
                              Appellee.

                              No. 4D16-589

                            [August 23, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Jaimie   Goodman,       Judge;    L.T.   Case     No.
502012CA019229XXXXMB.

    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, LLP, West Palm Beach; Carlos A. Bodden and W. David
Bennett of Ellis, Ged & Bodden, P.A., Boca Raton; and Laurence U.L.
Chandler, Jr., Boca Raton, for appellant.

  Todd R. Ehrenreich and Noel F. Johnson of Weinberg, Wheeler,
Hudgins, Gunn & Dial, LLC, Miami, for appellee.

CIKLIN, J.

   After a wrongful death jury trial, the personal representative of the
decedent’s estate recovered nothing. She believes that certain improper
evidence resulted in the defense verdict, and she challenges several of
the trial court’s rulings. We find the trial court did not abuse the wide
and sound discretion afforded to trial judges in these types of evidentiary
rulings, and we affirm.

   This case arose from a collision between a motorcycle driven by the
decedent, Jose Alberto Soto Santiago (“motorcycle driver”), and a truck
driven by the defendant, Daniel Hernandez (“truck driver”), resulting in
the death of Santiago. During trial, the trial court permitted the
introduction of the following evidence over the plaintiff’s objection: 1)
witness testimony regarding the speed the decedent motorcycle driver
traveled on his motorcycle in the moments preceding the accident; 2)
evidence of the weight of the truck, which was used by the defense expert
to calculate the motorcycle’s speed at impact; and 3) statements the
motorcycle driver’s child made to a psychotherapist regarding an
argument between the decedent and his girlfriend shortly before the
accident.

   “A trial court has wide discretion in determining the admissibility of
evidence, and, absent an abuse of discretion, the trial court’s ruling on
evidentiary matters will not be overturned.” Kellner v. David, 140 So. 3d
1042, 1046 (Fla. 5th DCA 2014) (citation omitted). “The trial court’s
discretion, however, is limited by the rules of evidence.” Wyatt v. State,
183 So. 3d 1081, 1084 (Fla. 4th DCA 2015). “[A] trial court’s decision
does not constitute an abuse of discretion ‘unless no reasonable person
would take the view adopted by the trial court.’” McCray v. State, 71 So.
3d 848, 862 (Fla. 2011) (quoting Peede v. State, 955 So. 2d 480, 489 (Fla.
2007)). Stated another way, “[i]f reasonable men could differ as to the
propriety of the action taken by the trial court, then the action is not
unreasonable and there can be no finding of an abuse of discretion.”
Bass v. City of Pembroke Pines, 991 So. 2d 1008, 1011 (Fla. 4th DCA
2008) (citation omitted). We review each of the challenged evidentiary
issues in turn, applying this limited—and very well established—scope of
review.

                Testimony Regarding Speed of Motorcycle

    Before trial, the plaintiff moved in limine to exclude the testimony of
three witnesses the defense had listed but who did not actually see the
accident, arguing that their testimony was not relevant, and that if it
was, any probative value was substantially outweighed by the prejudicial
effect of the testimony. The trial court deferred ruling on one witness,
and denied the motion without prejudice with respect to the other
witnesses.

   One of the witnesses testified at trial that he had operated
motorcycles since 1980. Based on his familiarity with motorcycles, he
could tell the difference between the sounds emitted by the engines of a
Japanese motorcycle and a Harley Davidson. A Harley Davidson engine
has a distinct sound which has been patented.

   Shortly before the accident, the witness was sitting in his backyard. A
fence blocked his view of the street, but he heard the sound of a
motorcycle engine. Defense counsel asked the witness what he heard,
and he responded, “A motorcycle traveling at a high rate of speed, revved
up.” The court denied plaintiff’s motion for mistrial. During a voir dire

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of the witness, he explained that his testimony was based on his years of
experience with hearing motorcycles, and that he did not have any
specialized training in the sounds of motorcycle engines. The court ruled
that the witness may “say based on what he heard and based on his
familiarity with the motorcycles that it was going at a high rate of speed,”
but that he may not “speculate or guess what the speed was.” The
witness then testified that he had previously heard “a Japanese
motorcycle rev its engine real high . . . [Y]ou can hear him going through
his gears. And when it’s revving really loud . . ., that means [it is]
traveling at a high rate of speed.” He equated that sound to the sound
he heard the day of the accident. The witness testified that shortly after
he heard the sound of a motorcycle revving its engine, he heard a
“popping” noise, as if the motor shut off. He went to investigate and
observed that a Japanese motorcycle had been involved in an accident.

   Two other defense witnesses, a mother and daughter traveling
together, encountered the motorcycle and testified about their
observations. The daughter recalled that the “noise of [the] engine” drew
her attention to the motorcycle. The motorcycle was “go[ing] by really
fast” and “cutting off cars.” Within minutes of losing sight of the
motorcycle, she came upon the accident scene. The mother testified that
the motorcycle was “making a very zoom noise, you know, as in
accelerating very quickly,” that the motorcycle driver “sped off very
rapidly,” and that he was traveling at a “much higher” rate of speed than
the mother was driving, which was somewhere between 30 and 45 miles
per hour. She and her daughter were so startled by the motorcycle that
they commented to one another regarding “the noise, the speed, the
closeness to our car.” After the motorcycle passed her, it took between
thirty and ninety seconds before she came upon the accident scene.

   The parties’ experts disputed the speed the motorcycle was traveling.
The plaintiff’s accident reconstruction expert testified that the motorcycle
driver was traveling an average of fifty-five miles per hour, but going
about sixty miles per hour at the time of impact. The defense expert
opined that the motorcycle driver was going about ninety to ninety-five
miles per hour at the time he braked, but could have been going faster
before that point. He believed the motorcycle was going between eighty
and eighty-five miles per hour at impact.

   On appeal, the plaintiff argues that the three lay witnesses should not
have been permitted to testify regarding their perceptions of the
motorcycle’s operation because their observations before the accident did
not correlate to the operation of the motorcycle at the time of the
accident.

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    “As a general rule, the decision of whether to permit evidence of a
driver’s conduct at a point some distance from the scene of the accident
is left to the sound discretion of the trial judge.” Russ v. Iswarin, 429 So.
2d 1237, 1240 (Fla. 2d DCA 1983); see also Hill v. Sadler, 186 So. 2d 52,
55 (Fla. 2d DCA 1966) (“Whether evidence should be admitted tending to
show the rate of speed of a vehicle at a time and place other than that at
the instant of, or immediately prior to, the accident depends upon the
facts in the particular case, and rests largely in the discretion of the trial
Judge.”). Here, the mother and daughter testified as to the decedent’s
speed somewhere between thirty seconds (according to the mother) and
two minutes at most (according to the daughter) before the accident. The
other witness’s testimony indicates that he heard the motorcycle engine
revving up moments before the accident. The trial court’s determination
that the witnesses’ observations were close enough in time to the
accident to be relevant was within the trial court’s broad discretion. See
Russ, 429 So. 2d at 1240-41 (affirming exclusion of testimony regarding
erratic driving more than a mile from accident site and three or four
minutes before accident, but finding court erred in excluding testimony
about the driving pattern and speed only three blocks before the
accident); Baynard v. Liberman, 139 So. 2d 485, 487 (Fla. 2d DCA 1962)
(finding that witnesses’ testimony that defendant ran the two red lights
south of the intersection where the crash occurred was relevant).

   With respect to the witness who was sitting in his backyard, the
plaintiff also argues that the trial court erred in permitting the witness to
give what amounted to expert testimony when he testified that he could
determine the speed from the sound of the motorcycle. This court has
elaborated on lay witness opinion testimony:

         “Generally, a lay witness may not testify in terms of an
      inference or opinion, because it usurps the function of the
      jury. The jury’s function is to determine the credibility and
      weight of such testimony.” Floyd v. State, 569 So. 2d 1225,
      1231-32 (Fla. 1990) (citation omitted), cert. denied, 501 U.S.
      1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991). However,
      a lay witness is permitted to testify in the form of an opinion
      or inference as to what he perceived if two conditions are
      met:

      (1) The witness cannot readily, and with equal accuracy
          and adequacy, communicate what he has perceived to
          the trier of fact without testifying in terms of inferences
          or opinions and his use of inferences or opinions will not


                                      4
          mislead the trier of fact to the prejudice of the objecting
          party; and

      (2) The opinions and inferences do not require a special
          knowledge, skill, experience, or training.

      § 90.701, Fla. Stat. (1991). “Lay witness opinion testimony
      is admissible if it is within the ken of an intelligent person
      with a degree of experience.” Floyd, 569 So. 2d at 1232.

         Opinion testimony of a lay witness is only permitted if it is
      based on what the witness has personally perceived. §
      90.701, Fla. Stat. (1991); Nationwide Mut. Fire Ins. Co. v.
      Vosburgh, 480 So. 2d 140 (Fla. 4th DCA 1985). Acceptable
      lay opinion testimony typically involves matters such as
      distance, time, size, weight, form and identity. Vosburgh,
      480 So. 2d at 143. Before lay opinion testimony can be
      properly admitted, a predicate must be laid in which the
      witness testifies as to the facts or perceptions upon which
      the opinion is based. Beck v. Gross, 499 So. 2d 886, 889
      (Fla. 2d DCA 1986), rev. dismissed by 503 So. 2d 327 (Fla.
      1987). “[B]efore one can render an opinion he must have
      had sufficient opportunity to observe the subject matter
      about which his opinion is rendered.” Albers v. Dasho, 355
      So. 2d 150, 153 (Fla. 4th DCA), cert. denied, 361 So. 2d 831
      (Fla. 1978).

Fino v. Nodine, 646 So. 2d 746, 748-49 (Fla. 4th DCA 1994) (alteration in
original) (footnote omitted); see also § 90.701, Fla. Stat. (2015).

   This court has recognized that a vehicle’s speed “is generally viewed
as a matter of common observation rather than expert opinion, and it is
well settled that any person of ordinary ability and intelligence having the
means or opportunity of observation is competent to testify to the rate of
speed of such a moving object.” Lewek v. State, 702 So. 2d 527, 532
(Fla. 4th DCA 1997) (citation omitted). The subtle twist in this case, of
course, is that the witness testified to a “high rate of speed” based on
sound rather than sight.

   Although the witness’s testimony was based on sound rather than
sight, his opinion was based on his personal ordinary experience hearing
the sounds that Japanese and non-Japanese motorcycle engines make
when a driver accelerates. The witness’s testimony was not based on a
methodology requiring something beyond everyday reasoning. That

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makes this case akin to L.L. v. State, 189 So. 3d 252, 259 (Fla. 3d DCA
2016) (finding no error in law enforcement officer’s lay opinion testimony
that substance was marijuana, where the opinion was based on officer’s
personal knowledge gleaned from his ordinary police experience and his
reasoning process did not involve a methodology beyond his ordinary
reasoning). To the extent that the plaintiff is arguing that witnesses
cannot testify about the significance of sounds they heard, this argument
is not consistent with the statute governing lay opinion testimony, which
permits a witness to testify as to what he has personally perceived. See §
90.701, Fla. Stat. (2015). The statute does not limit perception to visual
perception. Id. Indeed, in L.L., the officer’s opinion was based in part on
the odor of the substance. L.L., 189 So. 3d at 259-60 (“Officer Munecas’s
testimony was admissible lay opinion testimony under Section 90.701
because it was based on sufficient personal knowledge and his senses of
sight and smell . . . .”). We find that the trial court did not abuse its
broad discretion in permitting the witnesses’ testimony regarding the
speed of the motorcycle.

                             Evidence of Truck’s Weight

    Before trial, the defense arranged for the weighing of the truck driven
by the defendant truck driver during the accident. A receipt of the
weigh-in was made, reflecting the weight of the truck. Shortly before
trial, the defense noticed its intent to seek admission of the weight
receipt into evidence and filed an affidavit by the person who weighed the
truck, attesting to the creation of the receipt. 1 The plaintiff did not file
an objection. During trial, the weight receipt was admitted into evidence
over plaintiff’s “foundation” and “hearsay” objections. The defense expert
testified at trial that he used the weight of the truck in calculating the
speed the motorcycle was traveling.

1   Section 90.803(6)(c), Florida Statutes (2015), provides in pertinent part:

         A party intending to offer evidence [of a business record] by means
         of a certification or declaration shall serve reasonable written
         notice of that intention upon every other party and shall make the
         evidence available for inspection sufficiently in advance of its offer
         in evidence to provide to any other party a fair opportunity to
         challenge the admissibility of the evidence. . . . A motion opposing
         the admissibility of such evidence must be made by the opposing
         party and determined by the court before trial. A party’s failure to
         file such a motion before trial constitutes a waiver of objection to
         the evidence, but the court for good cause shown may grant relief
         from the waiver.


                                           6
    In her initial brief, the plaintiff argues that the weight receipt should
not have been admitted based on the affidavit, because the affidavit was
filed shortly before trial and the defense did not make the evidence
available for inspection, in violation of section 90.803(6)(c), Florida
Statutes. However, the defense provided notice of its intent to rely on the
affidavit in its “Trial Brief” 2 filing and thus complied with section
90.803(6)(c). The plaintiff waived any objection to admission of the
evidence by not filing an objection to the defendant’s notice.
Additionally, the plaintiff does not dispute that she was aware of the
weight receipt well before trial. We find that the plaintiff has not
established that the trial court abused its broad discretion in admitting
the weight receipt into evidence and permitting testimony based on the
weight receipt.

      Testimony Regarding Statements Made by Decedent’s Child to
                           Psychotherapist

   The plaintiff’s suit sought damages for “pain and suffering” on behalf
of the two children who survived the motorcycle driver. The trial court
entered an agreed order which granted the defense motion to compel
production of records from a psychotherapist who had treated one of the
children. Subsequently, the plaintiff listed the records as a trial exhibit.
In a joint trial exhibit list with objections filed by the parties, the plaintiff
indicated that she had no objection to the defense admitting the records
and deposition transcripts related to the child’s treatment.

   During trial, plaintiff’s counsel stated that she was no longer seeking
mental anguish damages and thus the psychotherapist privilege should
be reinstated. 3    Inexplicably, however, she requested the jury be
instructed on pain and suffering.         The trial court ruled that the
therapist’s records were admissible as the plaintiff sought an instruction
on pain and suffering.



2 It does not appear that the “Trial Brief” was filed in response to any order
entered by the trial court. In any event, the plaintiff does not argue on appeal
that the notice was defective based on the manner in which it was provided,
other than to complain that it was provided shortly before trial. On the record
before us, we are not able to find that the notice was not “reasonable” notice.
See § 90.803(6)(c), Fla. Stat.
3 As   discussed further below, the privilege does not apply insofar as
communications between a psychotherapist and the patient regarding the
patient’s mental or emotional condition are related to a patient’s claim or
defense in any proceeding.

                                       7
   During closing argument, the defense asserted that the child told his
therapist that he blamed his father’s girlfriend for the accident, because
she and the decedent argued before the decedent left the house, and that
the decedent drove recklessly because he was blowing off steam after the
argument. The jury was instructed on pain and suffering damages.

   The plaintiff argues that the trial court should have restored the
psychotherapist privilege once she withdrew the claim for pain and
suffering damages, as her other claims did not relate to mental injury.

   Section 90.503(2), Florida Statutes (2015), provides the following in
pertinent part:

      A patient has a privilege to refuse to disclose, and to prevent
      any     other    person     from     disclosing,   confidential
      communications or records made for the purpose of
      diagnosis or treatment of the patient’s mental or emotional
      condition . . . between the patient and the psychotherapist,
      or persons who are participating in the diagnosis or
      treatment under the direction of the psychotherapist. This
      privilege includes any diagnosis made, and advice given, by
      the psychotherapist in the course of that relationship.

The privilege may be claimed by, among other persons, the patient or the
patient’s attorney on the patient’s behalf. § 90.503(3)(a), Fla. Stat.
(2015). The statute further provides that the privilege does not apply to
“communications relevant to an issue of the mental or emotional
condition of the patient in any proceeding in which the patient relies
upon the condition as an element of his or her claim or defense.” §
90.503(4)(c), Fla. Stat. (2015).

   Section 90.507, Florida Statutes (2015), governs waiver of privileges
by voluntary disclosure and provides in pertinent part:

      A person who has a privilege against the disclosure of a
      confidential matter or communication waives the privilege if
      the person . . . consents to disclosure of, any significant part
      of the matter or communication.

   The waiver of the psychotherapist privilege is not irrevocable. See
Garbacik v. Wal-Mart Transp., LLC, 932 So. 2d 500, 503 (Fla. 5th DCA
2006); Sykes ex rel. Sykes v. St. Andrew’s Sch., 619 So. 2d 467, 469 (Fla.
4th DCA 1993). However, a revocation of a waiver will not reinstate the
privilege as to already disclosed information. See Bolin v. State, 793 So.

                                     8
2d 894, 898 (Fla. 2001) (recognizing that “information revealed after a
privilege is waived cannot be concealed by reinvoking the privilege”);
Hamilton v. Hamilton Steel Corp., 409 So. 2d 1111, 1114 (Fla. 4th DCA
1982) (“It is black letter law that once the privilege is waived, and the
horse out of the barn, it cannot be reinvoked.”).

   The parties do not dispute that the plaintiff initially put the son’s
mental condition at issue. Additionally, the record indicates that the
plaintiff did not actually withdraw the claim, as she requested a jury
instruction on pain and suffering. Even if the plaintiff withdrew the
claim in the midst of trial, this would not reinstate the privilege as to
records already disclosed. As such, the trial court did not abuse its
broad discretion in admitting the records and allowing testimony
regarding the records.

   We find that under the abuse of discretion standard of review, the
plaintiff has not established error, and we affirm.

   Affirmed.

TAYLOR and MAY, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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