16 Fla. L. Weekly Supp. 293b
Online Reference: FLWSUPP 164RAMAL
Insurance — Personal injury protection — Expert witness — Striking — No abuse of discretion in striking insurer’s expert witness on issue of independent medical examination where there is working relationship between insurer and expert, and expert repeatedly refused to produce subpoenaed copies of IME/peer review reports and failed to comply with order compelling production — No error in directing verdict in favor of medical provider where sole issue was whether MRI was medically necessary and insurer failed to impeach testimony of physician who ordered MRI, present countervailing expert medical testimony, or present other evidence that would have created direct conflict with provider’s evidence — Trial court did not impermissibly judge credibility of provider’s expert in entering directed verdict since there was no conflicting evidence to refute provider’s expert medical testimony
PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. VIRTUAL IMAGING SERVICES, INC., a/a/o Cristina Ramallo, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-276 AP. L.C. Case No. 05-1852 SP 23. February 20, 2009. An Appeal from the County Court for Miami-Dade County, Myriam Lehr, Judge. Counsel: Douglas H. Stein, Amania, Brandklayder, Blackwell, Baumgarten, Torricella, and Stein, for Appellant. Joseph R. Littman, Kane and Kane, for Appellee.
(Before JOSEPH P. FARINA, ROBERTO M. PINEIRO, and JOSE M. RODRIGUEZ, JJ.) AFFIRMED.
(RODRIGUEZ, Judge.) The Appellant, Progressive American Insurance Company (Progressive), appeals an order for directed verdict in favor of Appellee Virtual Imaging Services, Inc., as assignee of Cristina Ramallo (Virtual). The underlying arguments for appeal are that the trial court improperly granted Appellee’s Third Motion to Strike Dr. Sciarretta as an Expert Witness and that the directed verdict was improper because it did not give the jury the opportunity to weigh the credibility of the witness.
“[W]here a decision is within the judicial discretion of the trial judge, . . . the standard for appellate review is abuse of discretion.” Peak v. Peak, 411 So. 2d 325, 327 (Fla. 5th DCA 1982). The standard of review for discovery orders is abuse of discretion. Weck v. Weck, 464 So. 2d 619 (Fla. 4th DCA 1985). An order striking a witness’s testimony is reviewed on an abuse of discretion standard. M.J. Stavola Farms, Inc. v. Dep’t of Transp., 742 So. 2d 391, 395 (Fla. 5th DCA 1999), review denied, 753So. 2d 565 (Fla. 2000). In the absence of facts showing an abuse of that discretion, the trial court’s decision excusing or refusing to excuse a noncompliance must be affirmed. See Mercer v. Raine, 443 So. 2d 944, 945 (Fla. 1983); Watson v. Peskoe, 407 So. 2d 954, 956 (Fla. 3d DCA 1981) (exercise of trial court’s discretion will not be disturbed absent a clear showing of abuse). If reasonable people could differ as to the propriety of the action taken there can be no finding of an abuse of discretion. See Commercial Fed. Sav. and Loan Ass’n v. Tubero, 569 So. 2d 1271, 1273 (Fla. 1990). To justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment, and not merely that the court or another fact-finder might have made a different factual determination. See Mercer, 443 So. 2d at 946.
A directed verdict of a trial court comes to the reviewing court with a presumption of correctness. Clemente v. Tundidor, 284 So. 2d 31, 31 (Fla. 3d DCA 1973). A directed verdict is reviewed de novo, and will be reversed if there are conflicts in the evidence or different reasonable inferences can be drawn from the evidence. Rosa v. Dep’t of Children and Families, 915 So. 2d 210, 211 (Fla. 1st DCA 2005). Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). However, a misconception by the trial judge of a controlling principle of law can constitute grounds for reversal. Id.
Striking Virtual’s Expert Witness regarding IME
This Court finds that the trial court did not err or abuse its discretion when it struck Dr. Sciarretta as an expert witness regarding the IME.
If a party fails to comply with a discovery order, the court may sanction the disobedient party by ordering that the testimony of witnesses be stricken. Brinkerhoff v. Linkous, 528 So. 2d 1318, 1319 (Fla. 5th DCA 1988). Exclusion of a party’s expert witness is within the trial court’s discretion and should be invoked only under compelling circumstances. Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981). The severity of a discovery sanction imposed on a disobedient party should be commensurate with the violation. Id. Binger cites some factors which may enter into the trial court’s exercise of discretion: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). Id. Binger deals with a situation where an expert witness was stricken due to the party’s failure to timely include that expert on the witness list which is not exactly like the case at bar. In the case at bar, the non-compliant party is a witness and not a party to the case. Even so, this Court finds that the Appellant and the witness had a working relationship; this factor distinguishes the case at bar from cases that do not affirm the striking of a witness for the witness’s non-compliance of a pre-trial order.
The record supports the following facts: In the discovery stages of the litigation, there was a problem with Dr. Sciarretta providing documents requested by Appellee. Appellee served Dr. Sciarretta for deposition and it also served a subpoena duces tecum upon the record custodian for Dr. Sciarretta. The subpoena commanded production of documents from the record custodian on behalf of Dr. Sciarretta, including copies of IME exams and peer review exams pursuant to section 627.736(7), Florida Statutes and 1099s from insurers and/or IME/peer vendors. Neither Appellant nor Dr. Sciarretta filed any objections to the duces tecum, nor did they move for a protective order regarding the deposition or duces tecum. On January 17, 2007, the deposition of the records custodian for Dr. Sciarretta took place. The person who appeared to testify as the records custodian was Graciela Contreras (“Custodian”), but she refused to turn over the IME/peer review reports to Appellee. At the deposition, Appellee was made aware that Dr. Sciarretta no longer treated patients and had not done so for at least the past four years. It was also stated that Dr. Sciarretta’s sole practice consists of 100% of conducting IME/Peer Reviews on behalf of insurance companies and that Dr. Sciarretta conducts approximately 500-1000 IMEs per year. Dr. Sciarretta’s records custodian further stated that there existed computer disks that contained copies of the IME and peer review reports conducted by Dr. Sciarretta’s office where the deposition was taken. Despite the fact that the records requested were available on computer disks, the records custodian did not agree to turn over a copy of the disks to Appellee. On or about January 30, 2007, Appellee filed its first motion to strike Dr. Sciarretta as an expert at trial for, inter alia, failing to provide the documents requested in the subpoena duces tecum. In its motion to strike, Appellee alternatively requested an opportunity to depose Dr. Sciarretta personally and compel production of the documents requested in the subpoena duces tecum. The trial court denied this motion to strike, but reserved ruling with regard to the motion to compel production of the records, until after the deposition of Dr. Sciarretta was taken. A video deposition of Dr. Sciarretta took place on February 14, 2007. Dr. Sciarretta was served with a subpoena duces tecum requesting that he produce the same documents which were requested of the records custodian. Dr. Sciarretta did not comply with this records request.
Virtual filed its second motion to strike Dr. Sciarretta as an expert witness. On February 20, 2007, a telephonic hearing was held. During the telephonic hearing, the trial court ruled that the trial be continued until April 18, 2007. The trial court also ruled telephonically that Dr. Sciarretta had to produce copies of the IME/peer review reports and 1099s in accordance with the subpoena duces tecum within 10 days. This order was reduced to writing by the court on February 28, 2007. The parties did not receive a copy of the written order until March 14, 2007 (via fax). On March 24, 2007, due to Dr. Sciarretta’s failure to comply with the trial court’s order, Virtual filed its Third Motion to Strike Sciarretta as an expert witness. On April 11, 2007, upon hearing, the trial court granted Virtual’s Third Motion to Strike Dr. Sciarretta as an Expert Witness. The trial court found that Virtual was prejudiced by Dr. Sciarretta’s failure to provide the documents until April 5, 2007; that Dr. Sciarretta was in violation of the order that was made orally on February 20, 2008 and that was written on February 28; and that there was no excuse for Dr. Sciarretta’s failure to comply. The trial court noted that the IME and peer review reports had been readily available to Dr. Sciarretta on disk all along, this matter had been set for the second time for trial commencing on April 18, 2007, and that part of the reason for the earlier continuance was for the Court to provide Dr. Sciarretta with another opportunity to produce the requested documents. The trial court also stated that it provided Dr. Sciarretta numerous opportunities to produce the requested documentation prior to granting Virtual’s Third Motion to Strike Sciarretta as an Expert Witness. The trial court then denied Progressive’s motion for reconsideration that was heard on April 18, 2007, just prior to the start of the trial.
It is found that the trial court acted within its discretion in regard to the motion to strike considering the facts of the case.
The Trial and Directed Verdict
This Court finds that the trial court did not err in directing the verdict in favor of Virtual because, at trial, there was no reasonable evidence upon which a jury could legally predicate a verdict in favor of Progressive, the nonmoving party.
A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. Cecile Resort, Ltd. v. Hokanson, 729 So. 2d 446, 447-48 (Fla. 5th DCA 1999). A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant’s case as a matter of law and there is no evidence to rebut it. McElroy v. Perry, 753 So. 2d 121, 124 (Fla. 2d DCA 2000). A motion for directed verdict should only be denied and the case submitted to the jury if the evidence is conflicting or if a different conclusion can be drawn from it. Williamson v. Superior Ins. Co., 746 So. 2d 483, 485 (Fla. 2d DCA 1999); Powell v. Napilitano, 578 So. 2d 747, 748 (Fla. 2d DCA 1991). Lastly, the trial court is prohibited from passing on the credibility of witnesses or weighing the evidence in ruling on the motion. Id.
The sole issue for trial in the instant case was whether the lumbar MRI effected on July 23, 2005, was medically necessary. The witnesses included Steven Tabor (“Tabor”), Progressive’s Corporate Representative, and Dr. Sonia Rente (“Rente”), the physician who ordered the subject MRI as an expert witness. Tabor’s testimony confirmed the policy and denial of benefits. Rente’s testimony supported Virtual’s argument that the MRI was medically necessary. At trial, after Progressive rested its case, Virtual moved for a directed verdict and the trial court granted same. The trial court ruled that Progressive failed to provide any evidence to refute the testimony of the Plaintiff’s expert, Rente, and failed to substantially impeach Rente on cross-examination. Final Judgment was entered in favor of Virtual on May 4, 2007. This appeal followed.
Where a proponent of a hypothesis based on medical expertise (like medical necessity) supports his or her assertion with expert testimony, the opponent, in order to carry the issue of necessity to the jury, must either: 1) present countervailing expert testimony; 2) severely impeach the proponent’s expert; or 3) present other evidence which creates a direct conflict with the proponent’s evidence. Jarrell v. Churm, 611 So. 2d 69, 70 (Fla. 4th DCA 1992). Upon review of the record, it is found that the Appellant failed to present countervailing expert testimony, failed to severely impeach the proponent’s expert, and failed to present other evidence which created a direct conflict with the proponent’s evidence.
In support of its argument that credibility cannot be a basis for entering a directed verdict, Appellant refers to the statement of law that “[i]n ruling on a motion of directed verdict, a trial court may not pass on the credibility of witnesses or weigh competing evidence. . . .” Allison Transmission, Inc. v. J.R. Sailing Inc., 926 So. 2d 404, 407 (Fla. 2d DCA 2006) (emphasis added); see also Cmty. Christian Ctr. Ministries, Inc. v. Plante, 719 So. 2d 368, 370 (Fla. 4th DCA 1998). However, this Court finds that when the trial court made its statement regarding the credibility of the medical expert witness, it was not passing on or weighing the credibility of one expert witness against another, because Dr. Rente was the only expert. Cases relating to the aforementioned “weighing” law refer to the court’s weighing (as in comparing) the credibility of multiple (and contradictory) witnesses. It is found that the trial court in the instant case was merely assessing whether Appellee put forth competent, substantial evidence on the issue of medical necessity.
In regard to medical expert testimony, Easkold v. Rhodes, 614 So. 2d 495, 498 (Fla. 1993) states that “the jury is still free to determine the credibility of medical expert witnesses and to decide the weight to be placed on them in the face of conflicting lay evidence.” (Emphasis added). Easkold’s facts distinguish it from the instant case because it involved the existence of conflicting lay evidence. This was not the situation in the case at bar where there was no conflicting evidence whatsoever to refute the medical expert testimony.
Therefore, the trial court did not err when it granted directed verdict in favor of the Appellee.
It is concluded that the trial court’s rulings on the motion to strike and directed verdict should stand.
Appellee’s Motion for Attorney’s Fees, pursuant to section 627.428(1), Florida Statutes is GRANTED and remanded to the lower tribunal for a determination of reasonable attorney’s fees for the Appellee, the prevailing party in this cause.
FOR THE FOREGOING REASONS, the order granting directed verdict in favor of Appellee is AFFIRMED. (FARINA and PINEIRO, JJ., concur.)
