18 Fla. L. Weekly Supp. 216a
Online Reference: FLWSUPP 1802CORN
Insurance — Personal injury protection — Motion for new trial is granted where verdict finding that treatment after insurer cut off benefits based on independent medical examination was not related to accident was contrary to manifest weight of evidence, including IME physician’s testimony that he would have rendered additional treatment for herniated disc revealed by MRI nine days after IME — New trial is also warranted by insurer’s questioning of medical provider’s witnesses regarding failure to bring parts of medical file to trial where questions were not designed to ask about missing documents but to portray provider as trying to hide information
GLENN V. QUINTANA, D.C., P.A., (A/A/O ALBERTO CORNAVACA), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-4300 CC 21. November 22, 2010. Honorable Ana Maria Pando, Judge. Counsel: Richard PatiÑo and Ryan Peterson, The PatiÑo Law Firm, Hialeah, for Plaintiff. Paula Ferris and Pedro Ortiz, for Defendant.
ORDER GRANTING NEW TRIAL
Beginning May 18, 2010, the Court held a three day trial in this action to recover benefits under a no-fault insurance policy. In this case, the Claimant, Alberto Cornavaca, was involved in an automobile accident on July 3, 2007, and received chiropractic care from the Plaintiff from July 25, 2007 to September 18, 2007. On August 16, 2007, the patient went to an IME with Dr. Marvin Merrit for the Defendant, who reported no further treatment would be reasonable, related, or necessary. Because the Defendant paid the medical bills up to August 27, 2007, the case was tried solely on the issue of whether the bills for dates of service after August 27, 2007 were reasonable, related, and necessary. At the end of evidence the Plaintiff moved for a directed verdict, for which the Court reserved ruling. The jury returned a verdict finding the bills after August 27th, 2007 were not related to the automobile accident. The Plaintiff timely filed motions for new trial and renewed directed verdict.
After hearing lengthy argument of counsel, reviewing the entire trial transcript multiple times, and greatly considering the law, the record evidence, the witnesses at trial, and the argument of the parties, the Court grants the Plaintiff’s Motion for New Trial.
During the Plaintiff’s case in chief, Dr. Quintana, a chiropractor, opined in detail how all of the treatment was medically necessary, that his charges were reasonable in price, and that the injuries were related to the accident. Specifically, Dr. Quintana opined that the patient had a herniated disc which caused a nerve impingement. The evidence presented was that the chiropractic treatment he gave was to treat that injury, as well as other injuries.
Dr. Merrit, a chiropractor, and the Defense expert, testified in direct examination that on August 16th, 2007, he examined the patient and did not review the medical records at his examination. He testified that his examinations showed no positive findings, and that based upon his examination, he “felt that after the date of [his] examination of August 16th, 2007, that no further chiropractic care will be reasonable, related, or medically necessary.” At no point during his direct examination did Dr. Merrit testify that any injuries were unrelated to the accident. It is noteworthy that nine days after Merrit’s examination, the patient underwent an MRI, which showed a herniated disc, which Merrit’s examinations apparently failed to detect.
On cross examination, Dr. Merrit indicated that once he reviewed the records, he felt that several of the injuries were related to the accident. He then testified that additional treatment was necessary for the herniation. Merrit was asked “you say here in your report that in your opinion these injuries are causally related to the motor vehicle accident of 7/3/07?” His answer: “That’s correct, based upon the review of the records.” Merrit admitted also that the patient had a herniated disc, and “[a] mild impingement at the L4 nerve root”, but never directly commented on the relatedness of those injuries. Regarding the necessity of additional treatment, Dr. Merrit testified as follows:
PETERSON: On August 27th, he had a pinched nerve?
MERRIT: O.K., I’m not going to argue that.
PETERSON: You said that chiropractic treatment wasn’t medically necessary for a pinched nerve, correct?
MERRIT: Chiropractic treatment can help pinched nerves.
PETERSON: Right. So subsequent chiropractic treatment would help that pinched nerve, correct?
MERRIT: In theory, it could.
PETERSON: In theory?
MERRIT: In theory, it could.
PETERSON: So you don’t disagree with me on that?
MERRIT: I’m not going to disagree with you.
. . .
PETERSON: On August 29, 2007, that would have been two days after the MRI, where he said he had a pinched nerve. I’m showing you that SOAP note there and that’s already in evidence. Was there chiropractic treatment done there?
MERRIT: Yes, there was.
PETERSON: Would that chiropractic treatment have been medically necessary to help that pinched nerve?
MERRIT: It could have been, yes.
PETERSON: How about subsequent care to help the pinched nerve?
. . .
PETERSON: How much treatment would you give to this pinched nerve on the 27th?
MERRIT: Maybe four or five weeks.
PETERSON: And how many times per week? Two or three times per week.
On re-direct, the only mention of the cause of the herniation was where Merrit agreed that a person can “suffer a herniation just from the type of work that they do”, and that “you cannot date a herniation.” Merrit never actually testified concerning the genesis of this particular herniation, or whether this particular herniation was caused by the accident. His testimony regarding other possible causes of herniation failed to directly contradict Dr. Quintana’s testimony that the herniation in this case was post-traumatic and related to the accident, as it was mere speculation. “Mere speculation by the defendants, without supporting evidence, is insufficient to support the jury’s finding”, or in this case, the lack thereof. See Norman v. Mandarin Emergency Care Center, Inc., R.D., 490 So.2d 76, 79 (Fla. 1st DCA, 1986). Furthermore, this Court has serious concern with the fact that the Defendant’s own expert testified that he himself would have provided additional treatment.
Here, the Plaintiff argues that it is entitled to a directed verdict. The Plaintiff cites Jarrell v. Churm, 611 So.2d 69, (Fla. 4th DCA, 1992), adopted by this Circuit in several PIP cases (see, i.e., Progressive v. Virtual Imaging Service, Inc. a/a/o Cristina Ramallo, 16 Fla. L. Weekly Supp. 293b, (Fla. 11th Circ. Appellate Division, 2009)), which stated that “based solely upon consideration of evidence which does not clearly and directly contradict an expert opinion or the facts upon which that opinion is predicated, a jury of lay persons cannot be credited with having the technical expertise to totally disregard an expert medical opinion.” The Ramallo court, supra, citing Jarrell, indicated that “[w]here 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.”
After a review of the record it does not appear that the Defendant presented countervailing expert testimony, or other evidence which created a direct conflict with the Plaintiff’s expert testimony that the post August 27, 2007 treatment was reasonable, related, and necessary, at the very least, for certain chiropractic treatment rendered by the plaintiff subsequent to August 27, 2007. In fact, the Defendant’s expert, rather that contradict the Plaintiff’s expert, agreed that further treatment was necessary. However, the Defendant argues that it substantially impeached Dr. Quintana regarding a mis-statement about the MRI report, in opposing the motion for directed verdict. Even if the Defendant is correct about the substantial impeachment, (and the Court has reservations about that) the Court feels that in this case, a new trial is necessary, because the jury’s verdict was contrary to the manifest weight of the evidence, as outlined above.
In Brown v. Estate of A.P. Stuckey, 749 So.2d 480 (Fla. 1999) [24 Fla. L. Weekly S397a], the Supreme Court of Florida indicated that the Supreme “Court has repeatedly held that the trial judge has broad discretion in ruling on a motion for a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence. A trial judge has the responsibility to draw ‘on his [or her] talents, he [or her] knowledge, and his [or her] experience to keep the search for the truth in a proper channel,’ and the trial judge should always grant a motion for new trial when ‘the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.’ ” (citing Could v. Fallis, 110 So.2d 669, 673 (Fla. 1959). “The Trial judge’s discretion permits the grant of a new trial although it is not ‘clear, obvious, and indisputable that the jury was wrong.’ ” The Brown Court continues and states:
The trial judge’s discretionary power to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence is the only check against a jury that has reached an unjust decision on the facts. This discretionary power emanates from the common law principle that it is the duty of the trial judge to prevent what he or she considers to be a miscarriage of justice. See Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350 (4th Cir 1941). The role of the trial judge is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge’s trained and experienced judgment, is an unjust verdict.
First, the Court, given all of the evidence presented in this case, especially the testimony mentioned above, that Merrit himself would have rendered additional treatment, finds that the verdict was contrary to the manifest weight of the evidence. The Court finds because of the testimony above that it is appropriate to grant a new trial.
Furthermore, and as an independent basis for a new trial, it appears that the jury was unduly influenced by certain considerations which make the verdict unjust given the circumstances observed by the Court in the trial. Specifically, counsel for the Defendant asked several questions of the Plaintiff’s witnesses regarding the Plaintiff’s failure to bring their entire medical file to trial, despite the Defendant’s failure to request the same. For example:
BABINSKY: Did you bring your complete medical file here today?
QUINTANA: I have my complete medical file, the medical part of it.
BABINSKY: Do you have your x-ray reports?
QUINTANA: I don’t see that here. No, sir.
BABINSKY: Do you have the MRI report that you referred to the Judge?
QUINTANA: I don’t have that with me, no.
BABINSKY: Do you have the —
PATINO: Your Honor, can we go sidebar?
At this point, the Plaintiff’s attorneys expressed concerns off record that the Defendant was inquiring as to why the Plaintiff failed to bring certain items, because of attorney-client privilege. The attorneys for the Plaintiff indicate they had instructed the witness on which items to take to the witness stand, and instructed the witness not to take inadmissible items to the stand. The Defendant’s focus that certain items which were otherwise inadmissible, such as the MRI report and the X-Ray report (which were hearsay), were not actually physically carried by the witness to the trial, but instead by the attorneys, was inappropriate, because of concerns of relevance, unfair prejudice, and attorney-client privilege.
Still, the Defense counsel continued to ask questions leading down that path after the sidebar, and asked several questions related to that line of inquiry. Counsel asked “[s]o you have part of your medical records, but you don’t have all of your medical records; would that be fair to say?” and then, “[w]ould those reports not be part of your medical file?” At that point, Plaintiff’s counsel objected, and the objection was sustained. Immediately after that objection was sustained, the very next question the Defendant’s counsel asked was “[y]ou selected which documents to bring to Court today?” The Plaintiff objected, the objection was sustained, and the Court even had to warn the attorney to “[s]tay away from that whole line of questioning, Mr. Babinsky, please. Move on.” The Defendant states that this line of questioning should have been allowed to show a “lack of evidence”. Here, the Court’s concern is that this line of questioning was not directed toward a lack of evidence, as the two documents complained of by counsel (the x-ray and the MRI reports) were hearsay, and not admissible, anyway.
Clearly the question “you selected which documents to bring to court today?” was not designed to ask the witness about a lack of evidence. The Court’s concern is that this line of questioning painted Dr. Quintana as trying to hide information, when he was directed by his attorneys not to bring the information because it was inadmissible. This clearly prejudiced the jury.
Clearly the jury was impacted by this, and was not concerned with the lack of evidence, but instead was concerned with why the doctor would choose not to bring items to court. The jury asked three questions, two of which were read, related to this issue. The jury asked Dr. Quintana “[i]s there a reason why you would chose not to bring the x-rays and MRI, would it not have supported your findings and justified reason for treatment?” Also, they asked “[w]hy not bring the MRI to have proof of what the doctor based his treatment on?” In follow up questioning, the Defendant even asked “[i]t is your attorneys that decided which documents to bring to Court, and you didn’t bring these documents with you, correct?”, even further prejudicing the jury.
The questions the jury asked show that the jury was focused upon more than a lack of evidence, but Dr. Quintana’s failure to bring certain items, which was not a proper area of focus. While considerations based upon a lack of evidence are proper, an attack on the Plaintiff for not bringing the entire file when not even asked to do so by the Defendant was inappropriate, not relevant, and should not have been given the weight by the jury which it was given. The Court, from its vantage point at trial, feels that this was an unjust verdict as a result, and orders a new trial on these grounds as well.
