15 Fla. L. Weekly Supp. 565b

Insurance — Personal injury protection — Evidence — Peer review — Insurer waived right to appellate review of exclusion of peer review report and peer review doctor’s testimony as to reasonableness, relatedness and medical necessity of treatment where insurer failed to proffer report or testimony — Where trial court did nothing to interfere with reasonable proffer, there is no fundamental error

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. JOSE IGNACIO CARVALLO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-629 AP. L.T. Case No. 04-6424 CC 25. April 8, 2008. On appeal from final judgment after trial in the County Court of the Eleventh Judicial Circuit of Miami-Dade County before The Honorable Andrew Hague. Counsel: Michael J. Neimand, United Automobile Insurance Company, for Appellant. Amy Agnoli, Abraham & Agnoli.

(Before HUBBART, KARLAN and FREEMAN, JJ.)

Opinion

(Per Curiam.) This is an appeal from a jury verdict in favor of Appellee/Insured, Jose Ignacio Carvallo, awarding payment of medical bills by Appellant/Insurer, United Automobile Insurance Company. Carvallo was injured in an automobile accident and sought to recover PIP benefits. The trial proceeded on the issue of the reasonableness of the charges for the medical treatment. United Automobile’s defense was that the treatment received by Carvallo was not medically reasonable nor related to the accident. At trial, on the defense case, United Automobile called Dr. Peter Millheiser to testify. Carvallo objected to the scope of the doctor’s testimony and moved to limit the testimony solely to the reasonableness, relatedness and necessity of the medical charges incurred by Carvallo, and to exclude testimony as to the reasonableness, relatedness and necessity of the medical treatment receivedby Carvallo. The trial court treated the objection as a Motion in Limine, and after hearing argument, granted the motion. The Jury returned a verdict in favor of Carvallo and the Final Judgment was entered thereon. This appeal followed.

United Automobile argues that it was improper for the trial court to exclude the peer review of Carvallo performed by Dr. Millheiser and to exclude any testimony by Dr. Millheiser about the reasonableness, relatedness and necessity of the medical treatment § 627.736(7)(a) Fla. Stat. (2003), and that United Automobile was prejudiced by the Appellee’s objection being raised so late in the trial. In response, Carvallo contends that United Automobile misinterprets the statutory section but that in any event United Automobile failed to proffer either the testimony of Dr. Peter Millheiser or his peer review and therefore has not properly preserved this issue for appeal.

We review the trial court decision on the presumption it is correct and that the burden of demonstrating error lies with United Automobile. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). The sufficiency of the proffer rests within the trial court’s discretion. Porro v. State, 656 So. 2d 587 (Fla. 3d DCA 1995). The trial court abuses its discretion only when its actions are arbitrary, fanciful, or unreasonable. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).

Since the trial court’s order in limine effectively excluded both the testimony and the report, the court must give the party seeking to introduce such evidence the opportunity to proffer the substance of the excluded evidence. § 90.104(1)(b), Fla. Stat. (2003). In the event the offering party fails to proffer the excluded evidence to the court, that party waives its right to appellate court review. Cason v. Smith, 365 So. 2d 1042, 1043 (Fla. 3d DCA 1978). If a proffer is made but deemed insufficient by the trial court, the sufficiency is reviewed by the appellate court under the abuse of discretion standard. Porro, 656 So. 2d at 587. On the record before us, we find substantial competent evidence that United Automobile waived its right to appellate review by failing to proffer the excluded evidence to the trial court.

At no time was Dr. Millheiser’s peer review physically or substantively proffered to the court. At no time was Dr. Millheiser’s testimony as to the reasonableness, relatedness and necessity of the medical treatment received by Carvallo proffered to the court. Even if, as United Automobile forcefully argues, Dr. Millheiser’s report was valid pursuant to § 627.736(7)(a), Fla. Stat. (2003), without a proffer this Court cannot determine the adequacy of Dr. Millheiser’s report or what effect it may have had on the trial’s ultimate result. Finney v. State, 660 So. 2d 674, 684 (Fla. 1995).

We also find that the failure to proffer the excluded evidence prevents us from determining that the court’s presumed error was anything but harmless. Pursuant to § 59.041, Fla. Stat. (2003), no judgment shall be reversed unless “after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.” If the evidence has not been proffered into evidence, the appellate court “cannot determine if there has been a miscarriage of justice.” Levin v. Ethan Allen, Inc., 823 So. 2d 132, 135 (Fla. 4th DCA 2002). Consequently, unless the excluded evidence is contained within the record, such evidence is deemed harmless and the judgment upheld. § 59.041, Fla. Stat. (2003).

Nevertheless, we have considered whether the exclusion of the evidence by the trial court was fundamental error. Improper exclusion of evidence by the trial court is not in and of itself fundamental error. Sullivan v. State, 303 So. 2d 632, 635 (Fla. 1974) (“Reversible error cannot be predicated on conjecture.”) Rather, fundamental error occurs when the trial court judge effectively interferes with a party’s ability to complete the proffer. Muschia v. Terry, 140 So.2d 605 (Fla. 3d DCA 1962); Cason, 365 So. 2d 1043.

However, there is nothing in this record to support a finding that United attempted to proffer the peer review into evidence, nor to proffer Dr. Millheiser’s excluded testimony into the record. Moreover, there is nothing to indicate that the trial court, as in Muschia, prevented United Automobile from proffering the peer review or any of Dr. Millheiser’s testimony into the record. The trial court inquired as follows:

The Court: “What’s going to be the scope of Dr. Millheiser’s testimony?”

Defendant: “Your honor, Dr. Millheiser did a records review. He has been listed as — first of all, Judge, we object to this motion.”

After much back and forth, the trial court ruled that Dr. Millheiser could testify as to the reasonableness of the charges but not the reasonableness of the treatment. The transcript continues:

The Court: “. . . Okay. Bring in the jurors.”

Bailiff: “Yes Sir.”

Defendant: “Judge, can you please note our objection for the record?

The Court: Your objection is noted and that is based on the fact that it’s a pure paper peer review, he never saw the patient, and that is the basis for my ruling.

Bailiff: Please rise. The jurors are entering.

(Thereupon, the jury enters the courtroom).

In short, despite the direct inquiry of the trial court, United ignored the opportunity to detail the scope of his testimony. Because the record is without evidence that the trial court interfered, prevented or refused to allow a proffer of the excluded evidence, there is no basis for finding fundamental error.

As to proffers, generally, the court in Brantley v. Snapper Power Equipment, 665 So. 2d 241, 242-243 (Fla. 3d DCA 1995) is instructive:

When the trial court excludes evidence, an offer of proof is necessary (with some exceptions not applicable here) if the claimed evidentiary error is to be preserved for appellate review. See § 90.104(1)(b), Fla.Stat. (1993). This can be done without violating the order in limine by offering the excluded documents at trial outside the presence of the jury. See Michael H. Graham, Phillip A. Hubbart, Hugo L. Black, Jr. & Edward J. Imwinkelried, Florida Evidentiary Foundations, at20 (1991). “Excluded documents . . . should be marked for identification with a number and described fully in the record. This makes a record of the excluded evidence available to an appellate court so it can determine if error was committed in excluding the evidence and also makes it available for post trial motions.” Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 22-10, at 333 (1994) (footnote omitted); see also § 90.104(1)(b), Fla.Stat. (1993); Fla.R.Civ.P. 1.450(b); Charles W. Ehrhardt, Florida Evidence §§ 104.3, 104.5 (1995). “In considering the form in which the offer of proof is to be made, a distinction should be made between testimony and documents or other tangible items. Documents and other exhibits are usually marked for identification and become part of the record on appeal even if excluded.” Charles A. Wright & Kenneth W. Graham, Federal Practice & Procedure: Evidence § 5040 (1977). The courtroom clerk will maintain the excluded documents along with any other exhibits offered at trial “but not admitted for one reason or another.” Florida Evidentiary Foundations, supra, 1995 Cum.Supp., at 6 n. 9. Alternatively, if an adequate record of excluded evidence has been made at the hearing on the motion in limine, it is not necessary to make an offer of proof at trial. See Bender v. State, 472 So.2d 1370, 1372-73 (Fla. 3d DCA 1985); see also Charles W. Ehrhardt, supra, § 104.5.

Id. (Footnotes omitted).

On the record before us, we find that United failed to make a sufficient proffer, and that the trial court did nothing to interfere with a reasonable proffer. Therefore we find that the trial court did not abuse its discretion in excluding the peer review of Dr. Millheiser and limiting his testimony to the reasonableness of medical charges. Accordingly, the trial court’s order is AFFIRMED.