14 Fla. L. Weekly Supp. 1095b
Insurance — Personal injury protection — Verdict form — Abuse of discretion to use verdict form that did not require jury to find treatment provided was reasonable in addition to finding treatment was necessary and related to accident where form was inconsistent with jury instructions — Jurors — Challenge — Cause — Where there was reasonable doubt that juror challenged for cause could render impartial decision because juror’s answers regarding objectivity toward insurance companies were equivocal and conditional, trial court erred in failing to strike juror — Discovery — Expert witnesses — Failure to disclose — Where pretrial order required parties to disclose witnesses, trial court abused its discretion by allowing undisclosed expert witness to testify to prejudice of insurer — Remanded for new proceeding
MGA INSURANCE COMPANY, Appellant, v. ADVANCED CHIROPRACTIC & REHABILITATION CENTER, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-251 AP. September 11, 2007. An Appeal from the County Court for Miami-Dade County. Counsel: Douglass H. Stein, for appellant. Stuart B. Yanofsky and Rita M. Baez, for appellee.
(Before STUART M. SIMONS, GISELA CARDONNE ELY, and JOEL H. BROWN, JJ.)
(Stuart M. Simons, J.) This case is an appeal from a final judgment entered against MGA Insurance Company (MGA), in favor of Advanced Chiropractic & Rehabilitation Center (Advanced), a health care provider who performed chiropractic services on a patient with MGA insurance. The services performed were allegedly necessitated by injuries received in a motor vehicle accident covered by the patient’s personal injury protection insurance with MGA. Advanced did not timely file an answer brief in this case, and as a result, it was precluded from participating in oral argument. We reverse based upon a verdict form that was inconsistent with the jury instructions, the failure to strike a particular juror for cause, and the testimony of an undisclosed witness.
The first reason for reversal in the instant case is the content of the verdict form. A medical provider is required to prove not only that the amount it charged for an insured person’s treatment was reasonable, (an issue on which the trial court granted a directed verdict in the instant case) but also that the treatment itself was reasonable. See Progressive American Ins. Co. v. Millennium Diagnostic Imaging Center, Inc., 14 Fla. L. Weekly Supp. 424a (Fla. 11th Cir. Ct. Feb. 12, 2007). In the instant case, the trial court did instruct the jury that Advanced was required to prove that the treatment which it provided to the insured was reasonable.1 However, the verdict form did not include the reasonableness-of-treatment requirement. Instead, the verdict form asked only “Were the medical services and treatment provided to [the insured by Advanced] after September 2, 2003 necessary and related to the automobile accident of July 7, 2003?” Despite a trial court’s discretion in determining the content of a verdict form, such a determination is reversible on appeal when the form is reasonably calculated to confuse or mislead a jury. See CDS Holdings I, Inc. v. Corporation Co. of Miami, 944 So. 2d 440, 442 (Fla. 3d DCA 2007) (explaining that the use of a verdict form which is reasonably calculated to confuse or mislead a jury results in a miscarriage of justice and prejudicial error); Triana v. Fi-Shock, Inc., 763 So. 2d 454, 457-58 (Fla. 3d DCA 2000) (same); Rucker v. Garlock, Inc., 672 So. 2d 100, 101 (Fla. 3d DCA 1996) (same). In order to avoid confusing or misleading a jury, a verdict form should parallel the trial court’s instruction on the law and not give any of the issues in the case undue prominence. Guess, 889 So. 2d at 845; Botte v. Pomeroy, 497 So. 2d 1275, 1280 (Fla. 4th DCA 1986). Otherwise, “[t]here is great potential for the jury to be misled into following the verdict form rather than following the jury instruction.” Triple R. Paving, 744 So. 2d at 57 (quoting Firmani v. Grant, 681 So. 2d 869, 870 (Fla. 5th DCA 1996)). As such, when a verdict form is inconsistent with the jury instructions given, and is therefore confusing and misleading, reversal is required. Triple R. Paving, 744 So. 2d at 57; Warth v. State Farm Fire and Cas. Co., 695 So. 2d at 908. See also First Nat. Bank of Lake Park v. Gay, 694 So. 2d 784, 788 (Fla. 4th DCA 1997) (when a verdict form could have misled the jury, it is an abuse of discretion).
In the instant case, the verdict form was inconsistent with the jury instructions because it did not require the jury to find that the treatment provided to the insured was reasonable, in addition to being necessary and related to the accident. By including two of the factors and not the third, the verdict form gave undue prominence to those factors. Because the verdict form differed from the jury instructions, there was great potential for the jury to have been misled into following the verdict form rather than the jury instructions. The failure to include the reasonableness factor on the verdict form was confusing and misleading and was an abuse of discretion, warranting reversal.
A second reason for reversal in the instant case is the failure to strike a particular juror for cause. During the jury selection process in the case, MGA moved to strike Juror Perry for cause. The trial court denied the request to strike the juror, so MGA used a preemptory challenge to strike him. MGA subsequently used its two remaining preemptory challenges on other jurors, and its request for additional preemptory challenges was denied. The test to determine juror competency is whether that juror can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and the instruction on the law given by the court. Lusk v. State, 446 So. 2d 1038 (Fla. 1984). A trial court’s determination of a juror’s competency is reversible if the determination constitutes manifest error, which occurs when the court refuses to excuse for cause a prospective juror who responds with equivocal or conditional answers that raise a reasonable doubt as to whether the prospect possesses the state of mind necessary to render an impartial decision. See Ivey v. State, 855 So. 2d 1169 (Fla. 5th DCA 2003); State v. Williams, 465 So. 2d 1229 (Fla. 1985); Brown v. State, 728 So. 2d 758, 759 (Fla. 3d DCA 1999).
In the instant case, we find that there was a reasonable doubt that Juror Perry could render an impartial decision because his answers regarding his objectivity toward insurance companies were equivocal and conditional. Specifically Juror Perry expressed a negative feeling toward insurance companies,2 and he indicated that he would be biased against insurance companies when it came to weighing conflicting testimony.3 Therefore, the trial court abused its discretion in refusing to strike Juror Perry for cause. Furthermore, MGA preserved its for-cause challenge against him. See, Mead v. State, 867 So. 2d 1215 (Fla. 3d DCA 2004); Argon v. State, 853 So. 2d 584 (Fla. 5th DCA 2003); James v. State, 731 So. 2d 781 (Fla. 3d DCA 1999). Accordingly, the failure to strike Juror Perry for cause also warrants reversal.
The final reason for reversing is that the trial court allowed an undisclosed expert witness to testify, to the prejudice of MGA. Prior to trial, the court had entered an order stating that the parties must furnish witness lists to each other no later than thirty days prior to the pre-jury conference, and that no witness not on the list would be permitted to testify. Advanced listed the insured’s treating chiropractor as a witness,4 but immediately prior to jury selection in the case, Advanced moved, over MGA’s objection, to substitute the treating chiropractor with another chiropractor from the office. The trial court allowed the substitution, and the substitute witness testified at trial.5
When a pretrial order requires the parties to disclose their witnesses, and a party has failed to disclose a witness in violation of that order, the trial court’s discretion in deciding whether to allow that undisclosed witness to testify should be guided largely by a determination as to whether the use of the undisclosed witness will prejudice or surprise the objecting party. Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). In the instant case, MGA was prejudiced by the use of the substitute witness who was not disclosed until immediately before the trial began. MGA had no opportunity to depose her or to investigate and discover information relevant for impeachment, such as previous testimony she may have given, statements she may have made or publications she may have authored. It had no opportunity to investigate her background that would be relevant to her credibility as an expert, and it was not provided with her curriculum vitae. This lack of an opportunity to find out about the substitute witness prior to her testimony caused MGA to be unprepared in its cross-examination of her and caused it prejudice. See Capital Bank v. G & J Investments Corp., 68 So. 2d 534, 535 (Fla. 3d DCA 1985).6 If the trial court was concerned about the prejudice that Advanced would have suffered if the substitute witness had been excluded altogether, it could have continued the case in order for MGA to have a sufficient opportunity to depose and investigate the substitute witness in order to cross-examine her as an expert witness. See American Ins. Ass’n v. Department of Ins., 518 So. 2d 1342, 1347 (Fla. 1st DCA 1987); Gray Truck Line Co. v. Robbins, 476 So. 2d 1378 (Fla. 1st DCA 1985). The trial court abused its discretion by allowing an undisclosed expert witness to testify, to the prejudice of MGA.
We therefore reverse the final judgment on appeal and remand for a new proceeding. REVERSED and REMANDED.
__________________
1The jury instructions that were read to the jury (after being changed as a result of the arguments of the parties) stated that MGA was required to pay benefits “for the reasonable amount of all expenses for medical services and treatment that were reasonable, necessary and related to the automobile accident of July 7, 2003.” (emphasis added). The instructions then went on to state that “Plaintiff, Advanced Chiropractic and Rehab Center must show by the greater weight of the evidence that the Defendant, MGA Insurance Company was responsible for bills for medical services rendered . . . .” Thus, the jury instructions included a requirement that the medical services and treatment provided to the insured had to be reasonable, and an explanation that Advanced bore the burden of proof.
2He stated, “I have a predisposition that may be a little negative toward your industry.”
3For example, he stated, “If there were facts that were on the fence, . . . [a]nd if it was someone’s word against the insurance company’s word which sometimes would happen in a situation like this, there’s a chance I would side with the person that’s not on the party of the insurance. . . . But if you presented good, hard facts, I could look at good hard facts and come up with an honest yes or no based on that.” He also stated “I think that if the facts were presented, you know, one plus one will always equal two and I will say equals two. But if there is something that is gray — there is a chance with a he-said, she-said that I might side with the party who is not with the insurance company. He further stated that “if I have to dig in and make a judgment call, I might be biased against the insurance — ”
4Regarding expert witnesses, the order specified that each party must furnish the information required by Rule 1.280(b)(4)(A). Advanced did not designate the treating chiropractor as an expert witness, and did not include any information referred to in Rule 1.280(b)(4)(A).
5Even though the disclosed witness had not been identified as an expert witness, the substitute witness was allowed to testify as an expert, expressing “within a reasonable degree of chiropractic certainty,” her opinions regarding the propriety of the insured’s treatment.
6See also The Doctors Company v. State of Florida, Dept. of Ins., 940 So. 2d 466, 471 (Fla. 1st DCA 2006) (upholding the exclusion of an expert witness when the party who wished to call the witness had disclosed him as a fact witness, but not an expert witness, and had not furnished a curriculum vitae or a summary of his proposed expert testimony).
