20 Fla. L. Weekly Supp. 21a
Online Reference: FLWSUPP 2001GEDEInsurance — Personal injury protection — Expert witnesses — Abuse of discretion to exclude expert witness not disclosed in accordance with pretrial order where medical provider cannot claim surprise because insurer provided provider with expert’s peer review report and disclosed intent to rely on expert’s opinion, and there is no evidence that insurer’s failure to comply with pretrial order was willful or motivated by bad faith
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. D. ABECKJERR, D.C., P.A., d/b/a CLOVERLEAF CHIROPRACTIC CLINIC, a/a/o Brunet Gedeon, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-19572CACE(13). L.T. Case No. 07-14697COCE(56). October 1, 2012.
OPINION
(ROSENBERG, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon appeal by Appellant, United Automobile Insurance Company (“UAIC”) , of the county court’ s final judgment in favor of Appellee, D. Abeckjerr, D.C., P.A. (“Cloverleaf”). The Court, having considered the briefs filed by the parties and being otherwise fully advised in the premises, dispenses with oral argument and finds as follows:Facts
On September 2, 2006, Brunet Gedeon (“insured”) was injured in a motor vehicle accident while covered under a UAIC policy that provided personal injury protection (“PIP”) benefits. From September 13, 2006 to February 14, 2007, the insured received chiropractic treatment from Cloverleaf for his injuries. The insured assigned to Cloverleaf his PIP benefits under the UAIC policy. Cloverleaf billed UAIC $10,070.00 for the treatment. However, UAIC claimed the treatment was not reasonable, related and necessary (“RRN”) and refused to pay. On September 12, 2007, Cloverleaf filed suit in county court seeking monetary damages for the unpaid PIP benefits.
On October 3, 2008, Cloverleaf filed a motion for partial summary judgment as to RRN along with a supporting affidavit by the treating physician, Dr. Abeckjerr, who stated the treatment was RRN. On November 25, 2008, in opposition to the motion for summary judgment, UAIC filed an affidavit by Dr. Donald Morris, D.C., who concluded the treatment was not RRN after having conducted a peer review of Dr. Abeckjerr’s medical bills and records and a report from an independent medical examination. A copy of the peer review report was provided to Cloverleaf.
On December 12, 2008, the county court entered its first order directing pre-trial procedure and setting jury trial for the two week period beginning April 6, 2009. The order set deadlines for the disclosure of “all potential expert witnesses.” Cloverleaf timely disclosed that it would call Dr. Abeckjerr as an expert witness. UAIC did not provide a witness list. However, on March 26, 2009, the county court granted Cloverleaf’s motion to continue the case so it could file a motion for summary judgment as to the reasonableness of the charges.
On June 3, 2009, UAIC filed its answers to expert witness interrogatories stating it “may” call Dr. Morris. UAIC further stated “Dr. Morris is expected to testify as to the peer review he conducted of the medical bills and records pertaining to the [insured] . . . [and his opinion] that treatment with chiropractic medicine, was not reasonable, related or necessary.” UAIC attached a copy of Dr. Morris’s curriculum vitae, provided a brief statement of Dr. Morris’s opinion testimony, and provided significant impeachment information regarding his compensation and experience as an expert witness over the last three years.
On June 24, 2009, in opposition to Cloverleaf’s motion for summary judgment, UAIC again filed the affidavit of Dr. Morris. On August 27, 2009, the county court accepted Dr. Morris’s affidavit, found it set forth the minimum amounts that were compensable, and denied Cloverleaf’s motion.
On January 25, 2010, the court entered its second order directing pre-trial procedure and setting jury trial for the two-week period beginning March 29, 2010. The order set new deadlines for the disclosure of “all potential expert witnesses” and set docket call for March 19, 2010. Cloverleaf’s counsel was charged with the duty to “see that the pre-trial statement [wa]s executed by counsel for all parties, and filed with the Clerk no later than docket call.” The order further dictated that witnesses not listed in the pre-trial statement could not be called at trial. However, neither party complied with the provisions of this order. UAIC first disclosed its witness list as an attachment to the joint pre-trial statement. Cloverleaf did not file the joint pre-trial statement until March 25, 2009, six (6) days after the court-ordered deadline and four (4) days prior to trial.
On the day of trial, Cloverleaf moved to strike UAIC’s expert witness on grounds that the disclosure was untimely and allowing Dr. Morris to testify would prejudice Cloverleaf because it was unable to depose him before trial. UAIC conceded its disclosure was untimely and offered no excuse for its noncompliance. However, UAIC argued Cloverleaf could not claim it was surprised that UAIC intended to rely on Dr. Morris’s expert testimony in light of the affidavit filed on November 25, 2008, the June 3, 2009 answers to expert witness interrogatories, and the court’s August 27, 2009 order denying Cloverleaf’s motion for summary judgment. UAIC further argued that if the court believed that Cloverleaf was prejudiced, the most appropriate remedy would be to continue the case and allow Cloverleaf to depose Dr. Morris.
The county court rejected UAIC’s argument, granted Cloverleaf’s motion to strike and excluded Dr. Morris from testifying. The case proceeded to a jury trial. Cloverleaf presented Dr. Abeckjerr who testified the treatment was RRN. UAIC was unable to present any witnesses in its defense. The jury returned a verdict in favor of Cloverleaf and a final judgment was entered. This appeal followed.Analysis
A trial court’s decision to exclude a witness who was not disclosed in accordance with a pre-trial order is reviewed for abuse of discretion. See Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981); Kaye v. State Farm Mut. Auto Ins. Co., 985 So. 2d 675, 677 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1691b].
A trial court is authorized to impose a broad spectrum of sanctions for violations of pre-trial discovery orders. Kamhi v. Waterview Towers Condo. Ass’n, 793 So.2d 1033, 1036 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1742a]; First Republic Corp. of America v. Hayes, 431 So. 2d 624, 626 (Fla. 3d DCA), rev. denied, 441 So. 2d 632 (Fla. 1983). However, “the severity of the sanction must be commensurate with the violation.” Ferrante v. Waters, 383 So. 2d 749, 750 (Fla. 4th DCA 1980); Kamhi, 793 So. 2d at 1036. Excluding a party’s only witness or one of the party’s most important witnesses is tantamount to the severest of sanctions because it precludes that party from presenting evidence to support his or her theory of the case. Kamhi, 793 So. 2d at 1036; Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1921b]. Because “[t]he right to present evidence and call witnesses is perhaps the most important due process right of a party litigant. . . . [e]xcluding the testimony of a witness is a drastic remedy which should be invoked only under the most compelling circumstances.” LoBue v. Travelers Ins. Co., 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980), disapproved of on other grounds by Barth v. Khubani, 748 So. 2d 260 (Fla. 1999) [24 Fla. L. Weekly S466b]; Keller Indus. v. Volk, 657 So. 2d 1200, 1202-03 (Fla. 4th DCA) [20 Fla. L. Weekly D1460b], rev. denied, 666 So. 2d 146 (Fla. 1995). Generally, absent evidence of bad faith, willful noncompliance, or extensive prejudice to the opposition, the decision to impose such a severe sanction constitutes an abuse of discretion. See Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983); Kamhi, 793 So.2d at 1036.
In determining whether an unlisted witness should be permitted to testify, the central factor to be considered by the trial court is whether the objecting party will be surprised in fact by the witness’s testimony. Binger, 401 So. 2d at 1314. The trial court may consider any other relevant factor, including the following:
(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. The trial court should allow the witness to testify if it concludes that doing so “will not substantially endanger the fairness of the proceeding.” Id.
Cloverleaf argued it would have been prejudiced had the trial court allowed Dr. Morris to testify because UAIC’s late disclosure left it unable to depose Dr. Morris and obtain impeachment evidence before trial. However, “[t]here is no requirement or need for the opposing party to take the deposition of every expert where the party has been provided a report pursuant to the mandatory requirements of Rule 1.360(b).” Suarez-Burgos v. Morhaim, 745 So. 2d 368, 370-71 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2297a], rev. denied, 767 So. 2d 461 (Fla. 2000). Further, a party cannot claim surprise or prejudice where he knew, or had full means of knowing, that the testimony or evidence would be introduced against him at trial. Bowen v. Manuel, 144 So.2d 341, 343 (Fla. 2d DCA 1962) (explaining that “one who knows, or has full means of knowing, what evidence or contentions are likely to be introduced against him is not entitled to [claim] . . . surprise”); see Tetrault v. Fairchild, 799 So. 2d 226, 227- 28 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D1854d] (holding the trial court erred in failing to exclude testimony of radiologist where nothing learned during pre-trial discovery “could have reasonably put the defense on notice that [the radiologist] would be called to testify as an expert”).
In this case, it is beyond dispute that the critical issue was whether the treatment provided by Cloverleaf was RRN. Approximately sixteen (16) months before trial, Cloverleaf was provided a copy of Dr. Morris’s report and UAIC disclosed its intention to rely on Dr. Morris’s opinion that the treatment was not RRN when it filed his affidavit in opposition to Cloverleaf’s motion for summary judgment.
In addition, approximately nine (9) months before trial, UAIC again disclosed its intention to rely on Dr. Morris when it filed its answers to expert witness interrogatories. Although UAIC stated it “may” call Dr. Morris, it further specified “Dr. Morris is expected to testify . . . that treatment with chiropractic medicine, was not reasonable, related or necessary” and provided significant impeachment information regarding his experience as an expert witness and his compensation. More importantly, Cloverleaf listed Dr. Morris’s affidavit and peer review report and the answers to expert witness interrogatories as exhibits it intended to introduce into evidence at trial. (R. at 853-54). Therefore, Cloverleaf cannot reasonably claim it was unaware or surprised that Dr. Morris would testify as an expert witness, nor that it was unfamiliar with the substance of Dr. Morris’s opinion, nor that it lacked sufficient impeachment information.
Further, there is no evidence that UAIC’s failure to comply with the pretrial order was willful or motivated by bad faith. The record shows Cloverleaf had ample opportunity before trial to depose Dr. Morris but chose not to do so. Moreover, had Cloverleaf timely filed the joint pre-trial statement, it would have had ten (10) days before trial within which to depose Dr. Morris. “[A]n objecting party may not, having closed its eyes to the existence of evidence prior to trial, claim that the admission of that evidence would disrupt the orderly and efficient trial of the case.” Tomlinson-McKenzie v. Prince, 718 So. 2d 394, 396 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2386a]. While UAIC’s noncompliance should neither be condoned nor rewarded, the violation was not so prejudicial as to justify the exclusion of its only expert witness.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the county court’s final judgment is REVERSED and the cause REMANDED for a new trial.
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