19 Fla. L. Weekly Supp. 685a

Online Reference: FLWSUPP 1909MGARInsurance — Personal injury protection — Expert witnesses — Striking — Abuse of discretion to strike insurer’s two expert witnesses where medical provider received discovery as to both witnesses, and insurer’s delay in designating which expert would testify at trial did not prejudice provider

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant-Defendant, v. FRIEDMAN CHIROPRACTIC CENTER, P.A., a/a/o Maria Garcia, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 11-019 AP. L.C. Case No. 09-1380 CC 26 (03). April 30, 2012. On appeal from a final judgment rendered by the County Court for Miami-Dade County. Honorable Patricia Marino Pedraza, Judge. Counsel: Thomas L. Hunker, United Automobile Insurance Company, Office of the General Counsel, for Appellant-Defendant. Zachary A. Hicks and Martin I. Berger, Samole, Berger & Hicks, P.A.; Elliot B. Kula and Daniel M. Samson, Kula & Samson, LLP, for Appellee-Plaintiff.

(Before BLOOM, SOTO, and HIRSCH, JJ.)

(SOTO, Judge.) United Automobile Insurance Company (“insurer”) issued an insurance policy to Maria Garcia (“insured”). The insured suffered injuries from an accident and received medical care from Friedman Chiropractic Center, P.A. (“chiropractor”). The chiropractor’s complaint alleged that the insurer did not pay benefits within thirty (30) days as required by section 627.736(4)(b), Florida Statutes. On the day of trial, the lower court prohibited the insurer’s expert witnesses from testifying during the trial and subsequently granted the chiropractor’s summary judgment motion. Excluding these witnesses presents the issue for review. Section 26.012(1), Florida Statutes (2011), grants us jurisdiction to resolve this appeal.

According to the insurer, the trial court erred by striking Dr. Simon based on his opinion that certain bills paid by the insurer did not qualify as reasonable, related, or necessary. The insurer also argues that after striking Dr. Simon, the trial court violated due process by striking Dr. Siegel pursuant to the one-expert-per-specialty order. Without discussing due process, we agree that the trial court erroneously excluded Drs. Simon and Siegel.

We review an order excluding an expert witness for an abuse of discretion. Dos Santos v. Carlson, 806 So. 2d 539, 540 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D371b]; Allstate Ins. Co. v. Mazzorana, 731 So. 2d 38 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D658a]; Progressive Express Ins. Co. v. Med-Union Medical Center, Inc., 18 Fla. L. Weekly Supp. 1113a (Fla. 11th Cir. Ct. Sept. 22, 2011). Dos Santos referred to Binger v. King Pest Control¹ as guidance for determining when a trial court should exclude a witness.

Binger held that “a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order.” 401 So. 2d 1310, 1313 (Fla. 1981). However, whether testimony from the “undisclosed witness will prejudice the objecting party” presents the analytical framework, which should guide the trial court’s decision to exclude a witness’s testimony. Id. at 1314. Binger referred to prejudice as “the surprise in fact of the objecting party” and stated that prejudice does not depend on the testimony’s adverse nature. Id.

Binger also suggested additional factors for the trial court’s consideration: (i) the “objecting party’s ability to cure the prejudice” or “independent knowledge” of the witness’s existence, (ii) the calling party’s intentional or bad faith failure to comply with the pretrial order, and (iii) disruption to the trial’s efficiency. Id. at 1314. After “considering these factors, and any others” relevant to the circumstances, if the trial court concludes that using the undisclosed “witness will not substantially endanger the” proceeding’s fairness, then the trial court should modify the pretrial order mandating disclosure and permit the witness to testify. Id. Excluding a witness’s testimony constitutes a “drastic” remedy, which courts “should invoke only under the most compelling” circumstances. Mazzorana, 731 So. 2d at 39.

The lower tribunal’s jury trial order stated:

Parties shall furnish opposing counsel with the names and addresses of all expert witnesses to be called at trial and all information regarding expert testimony . . . . Each party is limited to one expert per specialty. No other expert testimony shall be permitted at trial.

(emphasis added). The insurer filed its pre-trial catalogue on December 11, 2009 and listed Dr. Simon as an expert witness and Dr. Siegel as a trial witness. Thus, the insurer disclosed both witnesses before the November 15, 2010 trial date. See Binger, 401 So. 2d at 1313.

On the trial date, approximately eleven (11) months after the insurer filed its pre-trial catalogue, the trial court excluded Dr. Simon because he would opine that charges paid by the insurer were not reasonable, related, or necessary (Hr. Tr. 43:21-44:1, Nov. 15, 2010). The trial court also excluded Dr. Simon as an expert witness because he would testify inconsistently with “the payment made [by the insurer to the chiropractor] and the stipulation made by United in its answer” as to “certain bills being reasonable, related and necessary.” Id. at 48:11-18. The trial court excluded Dr. Siegel as a trial witness because the insurer originally represented that it would call Dr. Simon as the expected expert and because the insurer cannot call two experts within the same expertise. Id. at 47:23-25; 48:19-23.²

We review whether calling these witnesses to testify would prejudice the chiropractor. During discovery, the insurer served interrogatory responses upon the chiropractor on August 20, 2009. In the interrogatory responses, the insurer stated that it may call Dr. Simon to testify about the peer review report he completed regarding the medical records and bills (App. A-4, ¶ 10). The insurer also filed Dr. Simon’s affidavit on April 13, 2010 and attached his peer review report and subsequent addendums (R. 87-99). Regarding prejudice to the chiropractor by calling Dr. Siegel, the insurer disclosed Dr. Siegel’s identity in its responses to interrogatories. The insurer informed that it may call Dr. Siegel to testify as to the independent medical examination. The insurer also submitted Dr. Siegel’s affidavit as opposition to the chiropractor’s summary judgment motion well before the trial date. Id. at 47. Furthermore, on February 18, 2010, the insurer served its responses to expert interrogatories, which listed both Drs. Simon and Siegel (App. A-6, ¶ 1).

Because the chiropractor received discovery as to both expert witnesses before the November 15, 2010 trial date, we conclude that the expert’s trial testimony would neither surprise the chiropractor nor substantially endanger the trial’s fairness. Binger, 401 So. 2d at 1314. We hold that the insurer’s delay in designating which expert would testify did not prejudice the chiropractor. Id.³

Trial courts should implement gentler sanctions before excluding an expert witness. Dos Santos, 806 So. 2d at 540. Excluding an expert witness should occur only upon the most compelling circumstances. Mazzorana, 731 So. 2d at 39. Here, the hearing transcript does not demonstrate that the trial court ordered a less severe sanction before excluding the experts’ testimony. Furthermore, we do not believe that the trial court’s reasons for excluding their trial testimony qualified as sufficiently compelling to warrant this harsh order. As an abuse of discretion occurred, we vacate the summary judgment and the final judgment.

VACATED and REMANDED. (BLOOM and HIRSCH, JJ., concur.)

__________________

¹401 So. 2d 1310 (Fla. 1981).

²Although we primarily analyze prejudice under Binger, excluding Dr. Siegel due to the one-expert-per-specialty rule contravenes Delgardo v. Allstate Ins. Co., 731 So. 2d 11 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D401a]. According to Delgardo, when “the purpose of the court is to learn whether the trial testimony of a second medical expert witness will unnecessarily duplicate that of another witness so that the trial judge may appropriately exercise the power to limit redundant witnesses, the inquiry should be pointed and precise.” Id. at 16 (emphasis added). Comparing Dr. Siegel’s and Dr. Simon’s affidavits demonstrate that their testimony would not qualify as cumulative. For example, Dr. Siegel averred that he examined the insured personally and discussed the physical examination and findings (R. 48-51). In contrast, Dr. Simon averred that he reviewed medical records and documents as opposed to physically examining the insured. Id. at 88, ¶ 4 a-o. We do not find that Dr. Siegel’s testimony would duplicate Dr. Simon’s.

³See Melrose Nursery, Inc. v. Hunt, 443 So. 2d 441-442 (Fla. 3d DCA 1984) (reversing where the trial court excluded the expert witness because the plaintiff possessed the “expert’s report for several months prior to the trial” despite the defendant failing to include the expert witness in its pre-trial catalogue) (emphasis added). Considering Melrose, we do not ignore that this insurer listed Dr. Siegel as a trial witness and not as an expert witness (R. 77). Although the insurer did not specify Dr. Siegel as an expert in the pre-trial catalogue, the insurer designated Dr. Siegel as an expert in both Ms. Serrano’s and the expert’s interrogatory responses (App. A-4, ¶ 10; App. A-6, ¶ 1).

* * *