15 Fla. L. Weekly Supp. 1154b
Insurance — Personal injury protection — Trial — Continuance — Abuse of discretion to deny one-day continuance to present testimony of peer review physician who was unavailable on day of trial due to patient emergencies — No merit to argument that physician should not be allowed to testify because peer review was conducted more than 30 days after treatment was rendered
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. BRENDA LEZAMA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-349 AP. L.C. Case No. 2002-021243-CC 05. October 27, 2008. An Appeal from Final Judgment of the County Court for Miami-Dade County. Counsel: Michael J. Neimand and Lara J. Edelstein, Office of the General Counsel, for Appellant. Herman Klemick and Geoffrey B. Marks, Billbrough & Marks, P.A.; and Fernando Freire, for Appellee.
(Before MARIA M. KORVICK, NORMAN GERSTEIN and JUDITH L. KREEGER, JJ.)
(PER CURIAM.) Appellant United Automobile Insurance Company (“United Auto”), appeals the trial court’s decision to grant a directed verdict and final judgment in favor of Appellee Brenda Lezama (Lezama or “the insured”).
Lezama had sued United Auto for PIP benefits after receiving medical attention following an automobile accident. A two day jury trial was held during June 2006, during “blitz week”. Before the jury was selected, Lezama argued that Dr. Millheiser, expert witness for United Auto, should not be allowed to testify because he merely conducted a peer review. The only issue was the reasonableness and necessity of Dr. Hernandez’s bill and treatment (Dr. Hernandez was Lezama’s treating physician). During the trial, the insured called Dr. Hernandez, who testified as to the therapies he treated the insured with. Lezama also presented the deposition testimony of Clara Noda and Yanett Saint de Marie, both litigation adjusters for the insurer.
On the second day of trial, just before the insured rested her case, United Auto advised the court that its sole witness, Dr. Peter Millheiser, who had conducted a peer review of Lezama’s case almost two years after her last treatment, would not be available until 1:00 p.m., although the insurer was attempting to have him arrive earlier. The court recessed for lunch. At 1:00 p.m., United Auto informed the court that Dr. Millheiser’s office had called United Auto’s counsel to tell them that due to patient medical emergencies, Dr. Millheiser would not be available until the following day or perhaps by 4:00 p.m. that day. United Auto requested that the case be re-set for the following morning but Lezama objected, arguing that Millheiser was scheduled to be available the entire week. The Court denied the request, but noted that United Auto did not intentionally attempt to mislead the Court. In refusing to delay the proceedings, the Court found that it had ordered all witnesses to be available, and that there are other doctors in South Florida “who could handle those type of procedures.” United had never requested leave to take Dr. Millheiser’s testimony out of turn.
Based on this ruling, the insurer rested its case without calling any witnesses or presenting any evidence. The insured moved for a directed verdict as to reasonableness and necessity, which the court granted after reviewing the testimony of Dr. Hernandez and the adjusters. A final judgment in favor of the insured was entered on July 19, 2006, plus interest, attorney’s fees and costs. This appeal followed.
The question before this Court is whether the trial court abused its discretion by denying United Auto’s motion for continuance. The standard of review for the denial of a motion for continuance is abuse of discretion. Taylor v. Mazda Motor of America, Inc., 934 So. 2d 518 (Fla. 3d DCA 2005). An appellate court should not interfere with a trial judge’s discretion. When deciding whether or not a trial court abused its discretion in denying a motion for continuance, an appellate court should determine whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for the continuance was unforeseeable by the movant and not the result of dilatory practices; and, whether the opposing party would suffer any prejudice or inconvenience as a result of the continuance. Taylor v. Institute for Medical Weight Loss, 863 So. 2d 398 (Fla. 4th DCA 2003) (citations omitted).
United Auto contends that it was denied its day in court, and that the trial court’s denial of its request for a continuance amounts to fundamental unfairness. Silverman v. Millner, 514 So. 2d 77 (Fla. 3d DCA 1987). Case law shows that denial of a sole expert witness is too drastic a sanction as the importance of expert testimony at trial is beyond dispute. Premark International, Inc. v. Pierson, 823 So. 2d 859 (Fla. 5th DCA 2002). Prior to striking an expert witness, the court should find serious misconduct by the party or counsel, or a violation of an appropriate court order. In the instant matter, the Court specifically noted before denying United Auto’s motion for continuance that United Auto was not deliberately attempting to mislead the court or to delay the proceedings. The insurer did not know that the doctor could not make it to court, because of his patients’ medical emergencies, until right before he was scheduled to be there. United Auto could have secured Dr. Millheiser’s presence in court the next morning; it was not seeking a long delay. As such, the court should have granted the motion for a continuance.
Lezama’s argument that Dr. Millheiser should not have been allowed to testify under any circumstances because his peer review was conducted more than 30 days after treatment has been rendered is without merit. See also United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82 (Fla. 2001). In any event, the court denied the continuance for United Auto because the doctor was not present when he was due to testify, not because of when he conducted his peer review.
Accordingly, we REVERSE the decision of the trial court granting Lezama’s motion for a directed verdict and a final judgment and REMAND this case for proceedings consistent with this opinion.
As to Lezama’s motion for appellate attorney’s fees, it is hereby DENIED.
