17 Fla. L. Weekly Supp. 1065b
Online Reference: FLWSUPP 1711SOCOInsurance — Personal injury protection — Witnesses — Expert — Abuse of discretion to deny insurer’s request to take deposition of its sole expert witness to read to jury where trial court changed order in which cases would be heard and expert whose testimony was crucial was not available to testify until several days after new trial date
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. PATRICIO SOCORRO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-627 AP. L.C. Case No. 06-00253 CC 05. September 7, 2010. On Appeal from County Court for Miami-Dade County, Teretha Lundy Thomas, Judge. Counsel: Lara J. Edelstein, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Stuart B. Yanofsky, of Stuart B. Yanofsky, P.A., for Appellee.
(Before TRAWICK, WARD, and ZABEL, JJ.)
(TRAWICK, J.) This is an appeal from a final judgment entered after a jury verdict in favor of the appellee in a personal injury trial, which proceeded after the trial court denied appellant’s motion to take the deposition of its expert witness. For the reasons stated below, we reverse and remand the case for further proceedings.
Patricio Socorro (“Mr. Socorro/appellee”) sought to collect personal injury protection benefits from United Automobile Insurance Company (“United Automobile/appellant”) for medical expenses he incurred as a result of an automobile accident. After Mr. Socorro filed his Complaint, United Automobile filed its Answer and Affirmative Defenses denying that the bills were reasonable, related, and necessary. In addition, United Automobile filed its pre-trial catalogue which listed Dr. David B. Goldberg, M.D., as an expert witness, who performed the Peer Review and would testify to the reasonableness, relatedness, and necessity of medical treatment.
Prior to trial, the court conducted a pre-trial conference and entered an order on the issues set for trial. There were several cases on the trial docket, and United Automobile asserted that it was ready to proceed on a different case. However, the first case was postponed and the trial court proceeded on the instant matter. Because the instant case proceeded to trial earlier than expected, United Automobile informed the court that Dr. Goldberg, its expert witness, would not be available until later in the week. To prevent unnecessary delay, United Automobile’s counsel asked the court for permission to take the deposition of Dr. Goldberg. In lieu of Dr. Goldberg’s live testimony, United Automobile asserted that Dr. Goldberg’s deposition would be read into the record. The trial court denied United Automobile’s motion and proceeded to trial.
At the conclusion of the evidence, appellee moved for a directed verdict on the issues of relatedness, reasonableness, and necessity. The trial court granted appellee’s motion for directed verdict as to relatedness and necessity. However, the trial court denied appellee’s motion regarding the reasonableness of the medical bills. Subsequently, the jury returned a verdict in favor of the appellee. The trial court entered a final judgment in favor of the appellee. Thereafter, United Automobile appealed.
We are aware that trial courts have broad discretion in setting and managing their cases. Duran v. Neff, 366 So. 2d 169, 170 (Fla. 3d DCA 1979). Further, this Court is mindful that a litigant is entitled to his or her day in court which does not mean that the day is to be selected by the litigant, his attorney, or his witness. Barclay v. Rivero, 388 So. 2d 321 (Fla. 3d DCA 1980). In the instant case, the trial court abused its discretion in denying United Automobile’s request to take the deposition of its sole expert witness to be read to the jury.
In Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000), the Third District noted that “the right to call witnesses is one of the most important due process rights of a party.” Further, “the exclusion of the testimony of an expert witness must be carefully considered and sparingly done.” Id. (citations omitted.) The record reflects that United Automobile informed the trial court that it wanted to take the deposition of Dr. Goldberg because the instant case was switched with another case, and Dr. Goldberg would not be able to testify until several days later. To prevent unnecessary delay, United Automobile requested to take Dr. Goldberg’s deposition, to be read to the jury. However, the trial court denied United Automobile’s request to depose Dr. Goldberg, the expert witness who performed the Peer Review and was scheduled to testify regarding the reasonableness, relatedness, and necessity of the medical bills.
The change in order of cases was not due to the fault of any of the parties. Once the instant matter proceeded to trial, United Automobile attempted to prevent further delay of the case and merely requested to take the deposition of its expert witness. As noted on the pre-trial catalogue, the expert witness was scheduled to testify to whether the bills were reasonable, related, and necessary. Thus, Dr. Goldberg’s testimony was crucial to the main issue of whether the medical bills were reasonable, related, and necessary. To allow this witness’ testimony to be presented to the jury, a deposition could have been accomplished without significant delay by allowing the deposition to have been done after hours or by continuing the trial for one or two days. Yet, there is nothing in the record before this court to explain why this could not have been accomplished. Thus, United Automobile was denied the opportunity to present this testimony to the jury because of the trial court’s failure to permit it to take Dr. Goldberg’s deposition. See Pascual, 771 So. 2d at 554. While we are mindful of the frustration of the trial court in trying to efficiently manage its trial calendar, it was an abuse of discretion on the record before us to have excluded Dr. Goldberg as a witness. Therefore, this matter is REVERSED and REMANDED to the trial court for proceedings consistent with this ruling. (WARD and ZABEL, JJ., concur.)
