Challenges with Evidence

Not a workers' compensation case, but interesting contract litigation in the Florida panhandle resulted in an interesting appellate decision in Tarantola v. Henghold, 254 So. 2d 1110 (Fla.1st DCA 2018). This was one of those cases that was considered by the appellate court three times.
The first instance, Tarantola v. Henghold, 214 So. 3d 726, 726-27 (Fla. 1st DCA 2017), was an interesting issue regarding an action for a temporary preliminary injunction, to enforce a non-compete agreement entered between Dr. Henghold and Dr. Tarantola. On that issue, the Court concluded that the the judge's injunctive relief was overbroad. The contract between the two doctors prohibited Dr. Tarantola from "performing Mohs surgery . . . within a forty mile radius of" her former employer's office. The trial judge's injunction prohibited her from "practicing dermatological medicine" within that area.
Thereafter, Dr. Tarantola "put up a billboard and activated a website" for a clinic. Her former employer sought "civil contempt sanctions," which the trial court granted, imposing conditions. By complying with the trial judge's order, Dr. Tarantola avoided significant fines for contempt and sought review, Tarantola v. Henghold, 233 So. 3d 508, 509 (Fla. 1st DCA 2017). The appellate court quashed that order on the second review of the case, an example of an extraordinary writ for the appellate court to quash the trial judge's decision. See Writ Protection.
But, it is the third trip to the appellate court that is of potential interest to the world of workers' compensation This third review of the case was related to an evidentiary issue, one that might be litigated in workers' compensation. The fact that the case was reviewed three times, however, is illustrative that any litigation can become complex and expensive.
The path to the third appellate review came from Dr. Tarantola's eventual resulting motion to "terminate a temporary injunction," which the trial court denied. It concluded that the two year contract period was extended by the trial courts perceptions of her violation of the original agreement, by her "advertising or marketing activity." The appellate court reversed the trial judge again on this third review. It noted at the outset that "we are now over three years from the date of Dr. Tarantola’s resignation, with a temporary injunction still in place to enforce a two-year agreement not to compete."
There was some agreement between the parties as to some tolling of the two-year period. However, they disagreed regarding tolling during a period in which it was alleged "Dr. Tarantola was in further violation of the covenant not to compete . . . as a result of improper advertising through a website." The issue, essentially, was whether the website in question "constitutes ‘advertising or marketing activity.’" And, therefore the content of the website became a relevant issue. The trial court concluded that it was advertising, leading Dr. Tarantola to appeal. 
To reach that conclusion, the trial court relied upon "screenshots of the website as proof the website was in existence in May 2015." This was "date stamp(ed)" October 14, 2015, but Dr. Hengold alleged "the website was actually launched in May 2015." However, Dr. Hengold had no "evidence to support this." In an effort to support his argument regarding the publication date, Dr. Hengold directed the trial court "to May 2015 Facebook posts, which direct viewers to Dr. Tarantola’s website." Thus, perhaps indirect proof of the existence of that website. 
The Court noted that while the Facebook posts do indicate "a" website, they did not prove the existence of "the" website (that is the specific iteration with the objected to "advertising or marketing activity." That was certainly a complication in the evidence. 
More important, however, the Court noted that those screenshots "were not introduced into evidence, but were attached to pleadings." Attaching documents to a pleading (a petition, a motion, etc.) does not make those documents evidence, upon which a judge or jury can rely. Thus, the Court concluded that the findings based upon those Facebook screen shots were "based on mere speculation." As there was no evidence as to the existence of Facebook screen shots, "the trial court abused its discretion in its determination that the website existed in May 2015."
Substantively, the Court noted that "even if evidence of record supported that the website existed in May 2015," the content of that website "did not constitute improper advertising or marketing in violation of the non-compete agreement." The Court noted that the website information may have said she is “Mohs surgery and fellowship trained.” However, the information did "not advertise availability and performance of Mohs-related services in the restricted area." The Court explained that provision of biographical information was not the same as "advertising or marketing activity" as regards performing that type of care. 
The Court ended its analysis concluding that the non-compete period had concluded. And, it clarified that "this opinion should not be read as precluding Dr. Tarantola from argument that she was wrongfully enjoined from practicing general dermatology in the restricted geographical area." Therefore, it is possible that litigation continued in the matter after this third appellate review. 

The point for workers' compensation is clear. The content of various Internet sites may be seen as relevant to a party in a workers' compensation case. It might be a website of an employer, potential employer, physician, or others. Likewise what a party or service provider posts on social media may be seen as relevant on some dispute or controversy. A party seeking to prove the content of such Internet evidence may struggle with proving what some Internet source represented (the "what") and proving that it did so at some relevant time (the "when").

The "what" may require whomever want that evidence viewed to prove that their images (screenshots) are real. That is referred to as "authentication." There may be issues regarding whether the images are original or copies, which is called "the best evidence." And, finally, there may be issues about what the screenshots portray, and whether they are used to prove the truth of what they say (that the doctor is or is not certified for the Mohs services perhaps). That is a challenge governed by "hearsay." In all, it can be a complex and multi-faceted process to have a judge or jury consider documents or pictures. 
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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