13 Fla. L. Weekly Supp. 236a

Insurance — Personal injury protection — Argument — Insurer’s opening statement summarizing treatment of insured by physicians other than plaintiff medical provider and stating that insured would testify that prior treatment did not help her was probably irrelevant, but did not constitute fundamental error — Plaintiff did not object to insurer’s comments, and treatment by other physicians was covered in testimony of insured and in testimony and report of insurer’s expert — Direct examination — Where provider did not object when examination of insured by insurer’s expert was characterized as independent examination in violation of motion in limine, and provider did not object to admission of expert’s report or seek to have phrase “independent medical examination” redacted from expert’s report, provider waived issue — Testimony of insurer’s expert that insured was referred to provider by her attorney, in contradiction to insured’s testimony that she met provider at store, was not so prejudicial as to deny provider fair trial where sole issue for jury was whether treatment by provider was medically necessary and provider did not preserve error — Further, any error was rendered harmless by trial court’s instruction not to consider issue of referral — Cross-examination — Limitation — No abuse of discretion in limiting cross-examination to exclude evidence that insurer’s expert brought disability lawsuit, sought to be introduced to impeach expert’s testimony that he continuously maintained active practice, where provider failed to proffer evidence into record and has not shown that lawsuit affected expert’s ability to maintain active practice — Settlement — No error in permitting insurer to question insured regarding settlement of uninsured motorist case with insurer and insured’s payment of provider’s bills where provider opened door by questioning insured about UM claim and fact that she personally paid provider’s bills because she found treatment helpful, and insurer merely clarified that insured received money from UM settlement to pay out-of-pocket payments to provider — Further, evidence of UM settlement was not prohibited where UM settlement was for bodily injury only and did not go to issue of whether provider’s treatment was medically necessary — Directed verdict — No error in failing to direct verdict in provider’s favor as to bill for initial visit which both provider and insurer’s expert testified was necessary for provider to determine future course of treatment where there is nothing in record to indicate provider moved for directed verdict, and there was evidence that treatment was not medically necessary — Closing argument — No abuse of discretion in denying motion for new trial based on unobjected-to comments in closing argument where alleged misconduct was not so pervasive as to deny fair trial — Provider cannot complain of prejudice from insurer’s remarks allegedly aimed to appeal to emotions of jury where provider made like comments — Negative impact arising from trial court’s reference in final jury charge to services provider “allegedly” provided was cured by curative instruction

LERNER CHIROPRACTIC, P.A., as assignee of VILMA FLORES, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-04-69. L.C. Case No. SCO-00-3251. November 16, 2005. Appeal from County Court for Orange County, Leon B. Cheek, III, Judge. Counsel: V. Rand Saltsgaver, Law Offices of V. Rand Saltsgaver, Orlando, for Appellant. Guy S. DiMartino and Karen M. Walker, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., for Appellee.

(Before MUNYON, BRONSON, and ROCHE, JJ.)

ORDER AFFIRMING THE LOWER COURT’S ORDER

(PER CURIAM.)Appellant Lerner Chiropractic, P.A. (“Lerner”), Plaintiff in the lower court, timely filed this appeal of the lower court’s final judgments entered in favor of State Farm Mutual Automobile Insurance Company (“State Farm”), Defendant below. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.

Factual and Procedural Background

On December 20, 1997, Vilma Flores (“Flores”) was injured in an automobile accident while riding as a passenger in a motor vehicle operated by her husband, Miguel Flores. At the time of the accident, Miguel Flores had an insurance policy (“the Policy”) with State Farm which provided personal injury protection (“PIP”) benefits in accordance with section 627.736, Florida Statutes. As a result of the accident, Flores sought medical treatment for injuries sustained related to the automobile accident under the Policy.

On October 5, 1998, ten months post accident, State Farm requested an insurance medical examination (“IME”) on Flores. The IME report found that Flores had reached “maximum medical improvement” from chiropractic care, and that further chiropractic treatment would not be beneficial to Flores. Based upon the IME report issued by State Farm’s medical examiner, Dr. David Guerriero, State Farm terminated Flores’ chiropractic benefits after November 15, 1998.

Notwithstanding the notice terminating chiropractic benefits by State Farm, Flores sought chiropractic treatment from Lerner on April 15, 1999. In return for treatment, Flores executed an assignment of benefits to Lerner. Lerner, as an assignee of Flores, sought payment from State Farm. On April 8, 2000, Lerner filed suit against State Farm to enforce the collection of PIP benefits for chiropractic care rendered to Flores from April 15, 1999, through August 27, 1999. The Complaint alleged that State Farm failed to pay PIP benefits under the insurance policy.

Both parties filed their motion in limine prior to trial. In Lerner’s motion in limine, it moved to refrain State Farm or its witnesses from commenting or referencing any detail of an “IME” as an “independent” medication examination.¹ On May 18, 2004, the case went to trial before a jury on the issue of whether the charges submitted by Lerner for services rendered from April 15, 1999, through August 27, 1999, for Flores were medically necessary. On May 21, 2004, the jury returned a verdict in favor of State Farm, finding that the services performed by Lerner were not medically necessary.

On June 15, 2004, Lerner filed its Motion for New Trial. On June 21, 2004, State Farm filed its Memorandum of Law in Opposition to Lerner’s Motion for New Trial. On July 12, 2004, the lower court entered a Final Judgment in favor of State Farm. On November 15, 2004, the lower court denied Lerner’s request for a new trial. This appeal ensued.

Standard of Review

Lerner seeks to have this Court grant it a new trial because there were cumulative, fundamental or reversible errors which deprived Lerner of a fair trial. However, most of the errors alleged by Lerner were not preserved at the trial court. The law is well-established that unpreserved error must amount to fundamental error to warrant a new trial. Clelentano v. Banker, 728 So. 2d 244 (Fla. 4th DCA 1998). While all fundamental error is harmful error, not all harmful error is fundamental. Garcia v. State, 910 So. 2d 788, n.5 (Fla. 2005).

Whether an error is fundamental is reviewed as a question of law subject to a de novo standard of review. Hasegawa v. Anderson, 742 So. 2d 504, 506 (Fla. 2d DCA 1999). An error is fundamental if the error was so extreme that it could not have been corrected if the complaining party had objected, and the error so damaged the fairness of the trial that it would undermine the public’s confidence in the judicial system. Id. To support a new trial on the grounds of unpreserved, fundamental error, the error must go to the foundation or merits of the case. State v. Osvath, 661 So. 2d 1252, 1254 (Fla. 3d DCA 1995).

Lerner also urges this Court to grant its motion for a directed verdict regarding the initial medical bill performed by Lerner. The standard of review for a matter of law is de novo. Cecile Resort Ltd. v. Hokanson, 729 So. 2d 446, 447 (Fla. 5th DCA 1999). A motion for a directed verdict is proper “when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” Id.

Discussion

In Lerner’s brief, it raises eight alleged errors during the trial which Lerner claims all resulted in fundamental errors warranting a new trial. State Farm, on the other hand, contends the errors alleged by Lerner were not properly preserved during the course of the trial, and further argues that they were evidentiary errors, not fundamental errors as asserted by Lerner. The record shows no objections were raised to six of the eight alleged errors; thus, most of the errors now claimed to have been made during the course of the trial were unpreserved. These errors will be addressed in turn.

The first alleged error by Lerner pertains to State Farm’s opening statement. During opening statement, counsel for State Farm told the jury that shortly after the motor vehicle accident, Flores went to see Dr. Vincent Preziosi, a chiropractic specialist, for 11 months; however, the treatment provided no relief for Flores. State Farm further stated that Flores received over 100 physical therapy modalities from Dr. Preziosi, which included 30 chiropractic adjustments, 27 treatments of electrical stimulation, 20 treatments of intersegmental traction, 12 treatments with hot packs, 2 treatments of massage, and 12 treatments of exercise therapy. In addition, State Farm summarized Flores’ treatment history with Dr. Augustine Joseph, Dr. Tom Winters, and Dr. Antonio Certo. Lerner maintains on appeal that the treatment by these physicians was not relevant to any issue at the trial. Since State Farm never bothered to put on testimony from any of the aforementioned physicians proves the opening statement was prejudicial to the jury and also in derogation of rule 4-3.4, Rules of Professional Conduct.

Lerner did not object to State Farm’s comments during opening statement. Clearly, a timely or contemporaneous objection to any prejudicial remark by counsel is necessary for granting a new trial. See Gregory v. Seaboard Sys. Railroad, Inc., 484 So. 2d 35, 38 (Fla. 2d DCA 1986). However, there are two exceptions to the timely objection rule. They are: 1) if the error is so fundamental that it extinguishes a party’s right to a fair trial; and 2) if the conduct is so prejudicial that its influence pervades the trial by “gravely impairing a calm and dispassionate consideration of the evidence and the merits of the jury.” Id. at 38 (citations omitted). Nevertheless, the application of the fundamental exception rule is a matter of judicial discretion and should be used very guardedly on appeal. Id. See also Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005). In the present case, Flores testified that she saw these healthcare providers before she was treated by Dr. Erik Lerner. State Farm’s expert witness, Dr. Guerriero, also testified that he reviewed the records of these healthcare providers during his evaluation of Flores. Furthermore, Dr. Guerriero’s evaluation report which was admitted into evidence without objection at the trial contains discussions of Flores’ diagnosis by these healthcare providers. Therefore, the statement made by State Farm’s counsel, even if irrelevant, did not necessarily equate to fundamental error.

Lerner also argues it was improper for State Farm to tell the jury that Flores “had already testified” that the treatment by Dr. Lerner and Dr. Preziosi did not help her. Lerner timely objected and the objection was sustained. Thereafter, State Farm rephrased and stated “Mrs. Flores will testify that Dr. Preziosi’s care did not help her; Dr. Lerner’s care did not help her.” (emphasis added). Lerner contends that since Dr. Prezioso’s treatment was not an issue at trial, the statement was irrelevant. While the statement was probably irrelevant, it did not rise to the level of fundamental error as urged by Lerner. A review of the record shows that both parties covered Dr. Prezioso’s treatment during Flores’ testimony at the trial. Moreover, Dr. Guerriero’s evaluation report that was introduced into evidence contains a discussion of Dr. Prezioso’s treatment.

The second alleged error is directed to a violation of Lerner’s Motion in Limine. In particular, Lerner argues the trial court erred when it allowed State Farm’s adjuster, Lydia Lavasseur (“Lavasseur”), and Dr. Guerriero to continually testify during the trial that Flores’ examination was “independent,” in violation of Lerner’s Motion in Limine. Regulating the order of introduction of evidence, whether receiving or rejecting it, is within the discretion of the trial court, and such matter will not be interfered with by an appellate court unless an abuse of such discretion is shown. McMillan v. Reese, 61 Fla. 360, 364 (Fla. 1911). In addition, where improper testimony is given in an answer to a proper question, the remedy is to have the testimony be stricken from the record by the complaining party. Atlantic Coast Line R. Co. v. Shouse, 91 So. 90 (Fla. 1922).

In the instant case, Lerner did not once object, move to strike, or bring to the trial court’s attention during the testimony of its own witness or that of State Farm when the phrase “independent medical examination” was used during the trial, or when counsel for State Farm inadvertently characterized Dr. Guerriero’s examination as an “independent” evaluation during closing argument. In addition, Lerner neither objected to the admission of Dr. Guerriero’s medical evaluation reports nor sought to have the phrase “independent medical examination” redacted from the reports before they were published to the jury. It is axiomatic that a timely objection to any prejudicial remark by counsel is necessary for granting a new trial. Gregory, 484 So. 2d at 38. Lerner argues that regardless of whether there was an objection by Lerner, the trial judge had a duty to ensure Lerner received a fair trial. While it is a duty of the trial judge to step in to prohibit improper comments by counsel absent an objection by opposing counsel, Lerner’s duty to object during the trial is not alleviated. See Gregory, 484 So. 2d at 38.

Lerner cites Fischman v. Suen, 672 So. 2d 644 (Fla. 4th DCA 1996) for the proposition that a violation of a motion in limine by itself can constitute grounds for a new trial. However, Fischman is distinguishable upon its facts. In Fischman, Suen brought suit against Fischman for unpaid wages and rescission of the employment contract. Id. at 645. Suen contended that his decision to terminate employment with Fischman was justified because Fischman wanted him to engage in medical fraud. Id. Prior to trial, Fischman moved in limine to preclude Suen from stating anything about medical fraud. Id. In trial, Suen testified that one of the reasons for leaving the practice was because of medical fraud. Fischman timely objected. The trial court instructed the jury to disregard everything about medical fraud and denied Fischman’s motion for mistrial. Id. The jury returned a verdict in favor of Suen. The Fourth District, in remanding the case, held that since the credibility of the two doctors was central to the contract issues at trial, Suen’s violation of the pretrial order was egregious enough to warrant a new trial. Id. at 646.

Unlike Fischman, Lerner did not raise any objections or move for a mistrial when testimony was elicited, and thus, failed to preserve the record by timely object to the violation of the motion in limine. In addition, the record is devoid of any evidence that a pretrial order in limine was entered in this case. Furthermore, the record shows that Lerner used the phrase “independent opinion” several times during Dr. Guerriero’s cross examination. Thus, it appears that Lerner waived the issue by failing to bring the matter to the court’s attention at trial so the error could be corrected.

The third alleged error occurred when Dr. Guerriero testified that Flores was referred by her attorney to see Dr. Lerner, contradicting Flores’ earlier testimony that she met Dr. Lerner at a Winn-Dixie store. Lerner argues that Dr. Guerriero’s testimony was prejudicial and cites Burt v. Gov’t Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992) as support. In Burt, the plaintiffs, husband and wife, petitioned the court for a writ of certiorari to quash an order compelling the wife to answer question on whether her attorney referred her to a particular physician. Id. The Second District granted the petition and held that contents of confidential communication between attorney and client are privileged and not discoverable. Id. Unlike Burt, State Farm did not compel Flores to disclose contents of her confidential communication with her attorney. At the trial, Dr. Guerriero testified that he had no independent recollection of what transpired during his examination of Flores, and therefore, was permitted to testify from his report. Dr. Guerriero read into the record a portion of his report which documented his conversation with Flores. In this conversation, Flores told Dr. Guerriero that her attorney sent her to see Dr. Lerner.

Under the facts of this case, the single improper remark was not so prejudicial as to deny Lerner a fair trial because the sole issue before the jury was whether the treatment by Lerner from April 15, 1999, through August 27, 1999, was medically necessary. Additionally, when Dr. Guerriero made the statement, Lerner did not object, move to strike, or preserve the error by moving for a mistrial. See Hasegawa, 742 So. 2d at 504 (finding that when a court finds a comment improper and sustains a party’s objection, the complaining party must move for a mistrial to preserve the objection on appeal). (citation omitted). Here, the trial court, on its own, called a sidebar. Following a sidebar conference, the trial court instructed the jury that “whether or not Mrs. Flores was referred to a chiropractic doctor or other treating person by an attorney is totally irrelevant to these proceedings.” In the present case, any error in admitting evidence was rendered harmless by the trial court’s instruction directing the jury not to consider it. See Hendry v. Ellis, 64 Fla. 306 (Fla. 1912).

The fourth alleged error is directed to the refusal by the trial court to allow Lerner to impeach the credibility of State Farm’s sole medical expert, Dr. Guerriero, during cross examination. The law is well-settled that “[i]t is within the reasonable discretion of the Court to regulate and control the extent of cross examination of a witness and this discretion will not be disturbed unless it has been abused or substantial harm has been done to the complaining party.” Seminole Shell Co. v. Clearwater Flying Co., Inc., 156 So. 2d 543, 544 (Fla. 2d DCA 1963). (citations omitted). See also Warner v. Caldwell, 354 So. 2d 91 (Fla. 3d DCA 1977) (stating that evidentiary ruling concerning the admission and/or exclusion of evidence during the course of the trial is subject to an abuse of discretion standard of review). However, there can be no finding of an abuse of discretion if, under the circumstances, reasonable people could differ as to the propriety of the action taken by the trial court. Smith v. Brown, 525 So. 2d 868 (Fla. 1988); Shearon v. Sullivan, 821 So. 2d 1222 (Fla. 1st DCA 2002).

At the trial, Dr. Guerriero testified that he has been in active practice since 1988, and further stated that over his fourteen years of practice he has always treated patients. Lerner attempted to impeach Dr. Guerriero regarding a disability lawsuit he filed, and asked if he had personally brought an action against an insurance company. State Farm timely objected and the trial court sustained the objection. Lerner argues that Dr. Guerriero’s disability lawsuit was contrary to his sworn testimony that he has continuously maintained an active practice as required under section 627.736(7), Florida Statutes.² Lerner, therefore, contends that the trial court erred by not permitting it to impeach Dr. Guerriero by bringing in an original court file regarding a lawsuit with Lincoln National over disability and loss of business income benefits. However, Lerner’s argument is not supported by the evidence in the record. The record fails to disclose the impeachment material was proffered to the lower court.

Since rulings on evidentiary matters are within the sound discretion of the trial court, no error may be predicated on the exclusion of evidence unless its substance was made known to the court by offer of proof. Connell v. Guardianship of Connell, 476 So. 2d 1381, 1382 (Fla. 1st DCA 1985). (citations omitted). Thus, when a trial court makes a ruling to exclude admission of certain evidence, the party seeking to introduce the evidence must proffer evidence into the record; otherwise, the appellate court cannot determine the propriety of the excluding evidence. See § 90.104(1)(b), Fla. Stat. (2005); O’Shea v. O’Shea, 585 So. 2d 405 (Fla. 1st DCA 1991) (stating if the complaining party fails to make a proffer in the lower court, an appellate court cannot determine if the exclusion of the evidence was prejudicial). See also Green v. Hood, 120 So. 2d 223, 226 (Fla. 2d DCA 1960) (holding “[w]here the court has sustained an objection to a question asked of a witness, the party against whom the ruling was made should make a proffer of the testimony so that the trial and appellate courts may be enabled to determine its competency”). (citation omitted).

In the present case, the trial court sustained State Farm’s objection and Lerner failed to proffer the impeachment evidence for appellate review. The bench conference was inaudible to the court reporter, and thus, the record does not contain a transcript of the bench conference that led to the trial court’s ruling. Additionally, Lerner has not shown that Dr. Guerriero’s lawsuit has affected his ability to maintain an active practice. On the contrary, Dr. Guerriero testified that he devotes approximately twenty percent of his practice to performing clinical evaluations for insurance companies, another twenty percent to teaching, and the remainder of the practice to taking care of patients at his office. Therefore, it does not appear that the trial court erred or abused its discretion in excluding the evidence.

The fifth alleged error occurred when the trial court permitted State Farm to inquire Flores regarding her settlement in the uninsured motorist (“UM”) case with State Farm. Lerner contends the testimony regarding the settlement between State Farm and Flores in her UM case as well as the payments made by Flores for Lerner’s bills was completely irrelevant and prejudicial to Lerner. Lerner points out that placing such evidence before the jury is prohibited under section 90.408, Florida Statutes. Section 90.408(1), Florida Statutes, states evidence of an offer to compromise a claim “is inadmissible to prove liability or absence of liability for the claim or its value.” § 90.408, Fla. Stat. (2005).

A review of the record shows that Lerner opened the door to this issue during the testimony of Flores by questioning Flores about her UM claim with State Farm, and therefore, cannot complain about an error for which it is responsible for making. See Gupton v. Village Key & Saw Shop, 656 So. 2d 475, 478 (Fla. 1995). Specifically, Lerner asked Flores, “[c]ould you tell me, did you have to make an uninsured motorist claim under your policy to State Farm for injuries that you and your family sustained in this automobile accident?” Lerner also elicited testimony from Flores to show that she thought the services provided by Lerner were helpful because she paid for them out of her own pocket when she discovered Lerner’s bills were not being paid. In rebuttal, State Farm clarified Flores’ earlier testimony to show Flores received money from her UM settlement to pay for the out-of-pocket treatment with Lerner. The following testimony transpired on Flores’ cross examination:

Q. And we’re not here today because of your injuries that were sustained in the accident. You’re not here seeking compensation from that, are you?

A. No.

Q. That’s because you already received compensation for those injuries?

A. Yes.

Q. And part of that compensation was payment for future medical treatment, was it not?

Whereupon, counsel for Lerner objected as beyond the scope of direct examination, followed by argument outside the presence of the jury. During the bench conference, the lower court articulated its rationale in allowing Flores’ UM case to come in as evidence:

I’m [the court] going to tell you, it [the settlement] has no relevancy for any purpose other than to show that when she [Flores] testified, that she paid the doctor [Dr. Lerner] out of her own pocket. Their claim is that she was reimbursed for that through her [UM] settlement from the insurance company [State Farm] for past and future medical damages. Since you brought it out, they can bring up and show that she got money from other sources to pay those bills.

(emphasis added). Upon the jury’s return, State Farm did not continue questioning Flores about her UM claim. Instead, State Farm asked Flores the following:

Q. Mrs. Flores, you testified earlier that you didn’t receive any notice that State Farm was going to terminate your benefits in November 1998, is that correct?

A. Yes, we did. My attorney told me that there was more to finish off the case.

Q. Can you explain that, please?

A. That when we closed and settled the case, that the money received would finish and close that case.

Lerner cites to City of Coral Gables v. Jordan, 186 So. 2d 60 (Fla. 3d DCA 1966), aff’d, 191 So. 2d 38 (Fla. 5th DCA 1966) and Benoit, Inc. v. Dist. Bd. of Trustees of St. Johns River Community College of Fl., 463 So. 2d 1260 (Fla. 5th DCA 1985) for the proposition that submission of evidence of settlement is prejudicial error. However, the facts of the cases cited by Lerner in support of its position are dissimilar to the facts in this case. In Coral Gables, 186 So. 2d at 61, Jordan sustained fatal injuries while riding as a passenger in a motor scooter operated by Bell. Jordan’s estate brought a wrongful death action against Coral Gables for negligence of the city’s police officer in directing traffic. Id. At the trial, Bell testified as a witness and was asked about a prior settlement with Coral Gables as a result of the accident. The Third District held that is was reversible error to admit into evidence regarding Bell’s settlement because it suggested that Coral Gables was also negligent, and thus, liable for the accident which resulted in Jordan’s death. Id. at 63.

Likewise, in Benoit, 463 So. 2d at 1260, St. Johns brought suit against Benoit for construction of a defective roof using the Benoit roofing system. The issue in the case was whether Benoit had a duty to warn users not to combine its system with asbestos felts. Id. at 1261. At the trial, St. Johns introduced into evidence a letter on which Benoit stated that it did not recommend the use of asbestos felts with its tapered foam system. Id. The jury returned a verdict in favor of St. Johns. Id. The Fifth District held that it was reversible error to admit Benoit’s letter into evidence because it was an offer to settle between the parties and went directly to the issue of liability. Id.

A fundamental premise for the application of the rule to prohibit admission of an offer to compromise a claim is that the offer must relate to the claim disputed in the lawsuit. Rease v. AnHeuser-Busch, Inc., 644 So. 2d 1383 (Fla. 1st DCA 1994). Unlike the cases cited by Lerner, Flores’ UM settlement did not go to the issue of liability as prohibited under section 90.408, Florida Statutes. Flores’s UM claim with State Farm was for bodily injury only. If this evidence was prejudicial, it was prejudicial only in the sense that it contradicted Flores’ allegations of having to pay out-of-pocket for services rendered by Lerner after August 27, 1999. The record does not support Lerner’s assertion that the questions and testimony about Flores’ UM case suggest that Lerner’s bills at issue, from April 15, 1999, through August 27, 1999, had already been paid by State Farm or by Flores. At the trial, Flores advanced testimony that she paid for out-of-pocket services with Lerner after she received notice³ that State Farm was denying her PIP benefits. Dr. Lerner testified that he continued to treat Flores for approximately three months after August 27, 1999, with the understanding that Flores would be solely responsible to pay for her own care. Dr. Lerner also testified that Flores paid a total of $250.00 towards her bill during that time. Therefore, evidence that Flores may have received a settlement for bodily injury did not affect Lerner’s case at trial, i.e., whether or not Lerner’s treatment was medically necessary.

The sixth alleged error occurred when the trial court failed to enter a directed verdict in favor of Lerner on the initial medical bill of April 15, 1999. Lerner argues that both Dr. Lerner and Dr. Guerriero testified that it was necessary for Lerner to have conducted the initial visit to determine Flores’s future course of care. In support of its assertion, Lerner cites to Active Spine Centers, LLC. v. United Auto. Ins. Co., 10 Fla. L. Weekly Supp. 1024a (Fla. Dade Cty. Ct. 2003); and Optima Health & Rehab. v. Health Auto. Ins. Co., 11 Fla. L. Weekly Supp. 146a (Fla. Dade Cty. Ct. 2003). However, the instant case is distinguishable from those cited by Lerner. In each of those decisions, the medical provider moved for a directed verdict in the lower court. Additionally, the insurer in each of those cases failed to present any evidence to rebut or discredit testimony of medical provider’s expert that treatment was medically necessary.

Unlike the authorities cited by Lerner, there is nothing in the record establishing that Lerner ever moved for a directed verdict on the initial medical bill. In addition, State Farm proffered expert testimony by Dr. Guerriero at the trial to counter Dr. Lerner’s testimony that the treatment was medically necessary. In particular, the IME report presented into evidence by State Farm indicates Flores had already received “maximum therapeutic benefit” from chiropractic medicine and any further chiropractic care would not reasonable or medically necessary. Furthermore, Flores gave conflicting testimony at the trial when asked if Lerner’s treatment was helping her to relieve her pain. During direct examination, Flores testified that despite having received treatment from Lerner, she was still in pain when she stopped treatment. When further asked if she was getting better, Flores replied that the hydrocortisone shots provided by Dr. Certo helped the most with her pain. On cross examination, when inquired if the treatment from Lerner helped her condition, Flores responded, “[n]o. Not Really.” However, on a follow-up question, Flores stated the treatment from Lerner did help relieve her pain. Based upon the evidence presented, it cannot be said that the trial court erred in not granting a directed verdict in favor of Lerner.

The seventh alleged error is directed to State Farm’s four comments during closing argument. The record establishes that Lerner did not raise objection to most of the alleged errors during closing argument by counsel for State Farm, nor did Lerner request a curative instruction or a mistrial during or at the close of such argument. However, Lerner did challenge various portions of State Farm’s closing argument by way of a motion for new trial, which was summarily denied by the trial court. Accordingly, we must determine whether the trial court abused its discretion in denying Lerner’s motion for new trial on the basis of allegedly improper, but unobjected-to, closing argument made by counsel for State Farm. Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1030 (Fla. 2000). In order to grant a new trial on appeal, the complaining party must demonstrate that: 1) the argument is improper; 2) the argument is harmful; 3) the argument is incurable; and 4) the argument so damaged fairness of trial that public’s interest in the system of justice requires new trial. Id. at 1028-30.

Lerner first asserts that State Farm grossly misstated the law and misled the jury by stating that “medically necessary” treatment is “treatment that is meant to get the patient better.” Lerner asserts that treatment does not have to target a cure, but rather can be purely palliative, citing Raymond D. Clites, D.C., P.A. v. Metropolitan Prop. & Cas. Ins. Co., 11 Fla. L. Weekly Supp. 115b (Fla. 13th Cir. Ct. 2003) as support. Lerner’s reliance on Clites is misplaced. In that case, the judge, not the jury, was the fact finder and made the determination after weighing the testimony and evidence that the billings by Clites were necessary, reasonable, and related to the accident. Id. In the present case, the jury weighed both Dr. Lerner’s and Dr. Guerriero’s testimony regarding palliative care, and determined that Lerner’s treatment was not medically necessary. See Derius v. Allstate Indemnity Co., 723 So. 2d 271, 274 (Fla. 4th DCA 1998) (stating that whether a given medical service is “necessary” under section 627.736(1)(a), Florida Statutes, is a factual issue to be resolved by the jury based on the evidence presented).

The record also shows both parties attempted to define the term “medical necessity.”⁴ In Lerner’s closing argument, it suggested a definition of “medical necessity” based on Dr. Lerner’s testimony. State Farm, likewise, adopted a definition of “medical necessity” based on Dr. Guerriero’s testimony. Specifically, Dr. Guerriero testified during the trial that Flores would not benefit from further palliative care since Flores’s condition got worse when he evaluated her again in July 1999, months after she had been treated by Lerner. Therefore, the jury reasonably concluded that Lerner’s treatment was not beneficial or medically necessary.

Next, Lerner argues that State Farm’s closing argument was prejudicial in that it made reference to matters or facts outside the record, in violation of rules 4-3.4 and 4-3.5, Rules of Professional Conduct. During closing argument, counsel for State Farm told the jury that Dr. Rory Evans performed an exam and rendered an opinion that was not presented to them. State Farm further stated that Dr. Evans rendered an opinion that no chiropractic care would be beneficial for Flores. Lerner objected and was overruled. Thereafter, the trial court instructed the jury as follows:

Ladies and gentlemen, I [the court] am certain that neither of our attorneys here today would ever misstate anything about the factual record of this case.

However, the determination of facts is exclusively your job and you are to rely on your own opinions and collective memories as to what the facts of this case are should there be a dispute between the attorneys over those facts.

(emphasis provided). We find State Farm’s statement improper and should not be made during closing argument. However, any error in allowing the admission of such statement by State Farm was harmless where the jury was told that any dispute concerning the facts of the case was for the jury to determine. Moreover, Lydia Levasseur (“Levasseur”), State Farm’s claim representative who handled Flores’ claim, testified that she requested two medical evaluations, one from a chiropractor and another from an orthopedic doctor. Levasseur stated that she relied upon the evaluation report from these two physicians to terminate Flores’ chiropractic and orthopedic benefits on November 15, 1998. Furthermore, the termination of benefits letter was admitted into evidence and published to the jury. Therefore, any prejudice it may have resulted from referencing Dr. Evans’ opinion during closing argument was not of the magnitude to deny Lerner a fair trial.

Lerner also alleges that State Farm’s comment about benefits being payable to Flores was improper because Flores had executed an assignment of benefits to Lerner. Specifically, counsel for State Farm told the jury that “benefits are payable to Vilma Flores” and “[w]hen benefits are given to someone else, that takes away the benefits available to Ms. Flores.” Lerner did not voice any objections to this portion of Lerner’s closing argument. While this evidence was probably irrelevant, it was not so extreme as to deny Flores a fair trial.

Lerner further argues State Farm’s statement about the availability of future PIP benefits for Flores was totally irrelevant and prejudicial. As support, Lerner cites to State Farm v. Revuelta, 901 So. 2d 377 (Fla. 3d DCA 2005) for the proposition that it was fundamental error to allow the jury to hear testimony that the plaintiff did not have insurance to cover future medical expense. Lerner’s reliance on Revuelta is misguided. In Revuelta, the jury heard testimony during closing argument that plaintiffs’ family had been paying insurance premiums to State Farm for twenty years so they would be protected in the event they are involved in an accident. Id. at 379. The message conveyed to the jury was plaintiffs’ family’s entitlement to benefits based upon their long history of paying premiums to State Farm. The Third District held that such statement by counsel for the plaintiffs was clearly prejudicial because it asked the jury to call State Farm to account for failing to pay PIP benefits. Id. Unlike Revuelta, the instant case did not involve a lack of health insurance to cover future medical expense. To the contrary, State Farm presented evidence that Flores still has benefits available under her PIP policy to seek medically necessary treatment aside from chiropractic and orthopedic care. Thus, the alleged misconduct during State Farm’s closing argument did not so pervade the trial as to require a new trial, where Lerner did not object to remarks.

Lerner also contends the closing argument made by State Farm was deceptive since it aimed to appeal to the emotions of the jury. We disagree. The record discloses that it was Lerner who attempted to sway the jury’s emotions during closing statement. Specifically, Lerner tried to invoke the jury’s sympathy by stating the accident “wasn’t Flores’ fault” and Flores “did nothing to deserve to be put through the ringer.” Moreover, counsel for Lerner told the jury that Lerner’s treatment was medically necessary and gave Flores “hope” of recovery until State Farm cut off her benefits. Lerner repeated this message and told the jury that Flores was the road to recovery “when the rug was pulled out from her not once, but twice.” Therefore, Lerner cannot now complain that it was prejudiced by State Farm’s remarks when it also made comments that were aimed to appeal to the emotions of the jury.

The last alleged error occurred during the charge conference when the trial court referred to Lerner’s services as having been “allegedly” provided. It is apparent from the record that the trial court misspoke during the final jury charge. Lerner brought the matter to the lower court’s attention and the lower court immediately provided the jury with a curative instruction. Specifically, the trial court instructed the jury that their “determination is whether the medical services provided were medically necessary as in accordance with the instructions.” Even if the statement was in error, the negative impact of this statement was cured by the lower court’s curative instruction.

After reviewing the closing argument being challenged by Lerner, as well as the entire record in this case, we are unable to say that the trial court abused its discretion in denying Lerner’s motion for new trial, or that the verdict was against the manifest weight of the evidence. The alleged errors were so not prejudicial or pervasive that Lerner was denied the right to a fair trial. Any finding that they were would be an abuse of discretion. Additionally, we do not find the unpreserved errors rise to the level of fundamental error as contended by Lerner.

Appellant’s Motion for Appellate Attorney’s Fees

Lerner has timely filed motion seeking an award of appellate attorney’s fees pursuant to sections 627.428 and 627.736(8), Florida Statutes. Since Lerner is not the prevailing party on appeal, Lerner’s request for appellate attorney’s fees is DENIED.

Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the final judgment entered on July 12, 2004, is AFFIRMED.

It is further ORDERED AND ADJUDGED that the trial court’s order entered on November 15, 2004, denying Lerner’s Motion for New Trial is AFFIRMED.

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¹The record is unclear as to which portions of the parties’ motion in limine were granted in part and denied in part by the trial court since there was never an order entered on the trial court’s ruling.

²Section 627.736(7), Florida Statutes, states:

Active practice means that during the 3 years immediately preceding the date of the physical examination or review of the treatment records the physician must have devoted professional time to the active clinical practice of evaluation, diagnosis, or treatment of medical conditions or to the instruction of students in an accredited health professional school . . .

§ 627.736(7), Fla. Stat. (2005).

³In addition to this notice, Flores also received notice in November 1998 that State Farm was discontinuing her chiropractic benefits under the PIP policy issued by State Farm.

⁴The 1999 version of section 627.736, Florida Statutes, which was in effect at the time of this case, did not contain a definition of “medical necessity.” See § 627.736, Fla. Stat. (1999).

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