21 Fla. L. Weekly Supp. 33a
Online Reference: FLWSUPP 2101ORTIInsurance — Personal injury protection — Continuance — Denial — Abuse of discretion to deny continuance requested by insurer to allow medical expert to testify where expert’s testimony would have been favorable to insurer on only disputed issue, insurer was diligent in attempting to secure attendance of witness by service of subpoena and oral confirmation of witness’s availability, and insurer represented that witness was available to testify on next day
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. GENERAL REHAB FACILITY A/A/O FRANCISCO ORTIZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 11-128 AP. L.T. Case No. 06-9111-CC 05. September 17, 2013. An appeal from the County Court for Miami-Dade County, Florida, the Honorable Teretha Lundy Thomas presiding. Counsel: Lara Edelstein, Office of General Counsel, United Automobile Insurance Company for Appellant. Stuart Yanofsky, for Appellee.
(Before MILLER, SAYFIE, and RUIZ-COHEN, JJ.)
(SAYFIE, J.) Appellee, General Rehab Facility (hereinafter “General Rehab”) filed suit against Appellant, United Automobile Insurance Company (hereinafter “United Auto”) in county court for unpaid personal injury protection benefits. General Rehab sought payment for medical services it purported to have rendered following an automobile accident to United Auto’s insured, Francisco Ortiz.
In its pretrial catalog, United Auto alleged that the medical treatment was not reasonable, necessary, customary and related to the accident, and it listed Dr. Peter Millheiser as an expert witness.
On July 12, 2010, both parties announced ready for trial, selected a jury, and adjourned for the day. The following morning, United Auto informed the court that they had just discovered that Dr. Millheiser would be unavailable to testify that day. They proffered to the court that Dr. Millheiser’s wife had been taken into surgery and all his appointments for the day had been cancelled, including testifying in the trial.
Counsel for General Rehab maintained that the surgery had been “planned,” but counsel for United Auto contended that it was an emergency surgery. The record further reveals that Dr. Millheiser was served on July 2, 2010, with a subpoena to appear on July 13, 2010 for trial. United Auto indicated that on July 12, 2010, it confirmed with Dr. Millheiser’s office that he would indeed be present for trial. United Auto proffered that Dr. Millheiser’s wife was on standby for surgery, awaiting test results. Dr. Millheiser and his wife were notified late on July 12, 2010 that the surgery would take place the following day. Counsel for United Auto was informed of the situation on July 13, 2010.
United Auto further proffered that Dr. Millheiser would be available to testify the following day, July 14, 2010 at 11:00 a.m. General Rehab objected to any further continuance. The trial court indicated that it was “not convinced” that the witness would appear the following day at 11:00 a.m. and denied the motion for continuance.
The trial proceeded and General Rehab called Dr. Marquez as their expert witness to establish that treatment provided to Ortiz was reasonable, related, and medically necessary. Dr. Marquez was not the treating physician and based his opinion on a review of the available treatment records. He testified that although the insured did not seek treatment until four months after the accident, Ortiz’s pain and ensuing treatment was related to the accident. On cross-examination he acknowledged inconsistencies between the medical reports and the reported symptoms.
General Rehab then called the adjustor as a witness. The adjustor testified that United Auto was not informed of the February 2003 accident until June 2003, rendering the first set of bills untimely pursuant to Florida’s no-fault law. General Rehab rested its case.
At that juncture, United Auto stated that if provided with a brief reset until the following morning, it would call Dr. Millheiser as a witness. United Auto proffered that Dr. Millheiser would have testified that he had the opportunity to review the relevant medical records and accident reports, and that none of the physical therapy provided to the insured was reasonable, related, customary or medically necessary. Further, Dr. Millheiser would have testified that the only justifiable expense was the initial examination. The trial court denied the request for continuance and General Rehab moved for directed verdict. The trial court granted the motion for directed verdict.
LEGAL ANALYSIS
A denial of a motion for continuance is within the sound discretion of the trial court and should not be disturbed absent an abuse of discretion. Silverman v. Millner, 514 So. 2d 77 (Fla. 3d DCA 1987). However, exclusion of the testimony of an expert witness must be carefully considered and sparingly done. Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1921b]. A party seeking a motion for continuance due to the unavailability of a witness must show: (1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice. Fisher v. Perez, 947 So. 2d 648, 650 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D267a]. The motion must also state when it is believed the witness will be available. Fla. R. Civ. P. 1.460.
The right to call witnesses is one of a party’s most important due process rights, especially when the witness’s testimony goes to the gravamen of the claim. Pascual v. Dozier, 771 So. 2d at 554. “[A] trial court should exercise caution when the witness sought to be excluded is a party’s only witness or one of the party’s most important witnesses because if the witness is stricken, that party will be left unable to present evidence to support his or her theory of the case.”
In Fisher, supra, the court held that the trial court abused its discretion when it denied a motion for continuance due to the unexpected unavailability of the defense’s expert witness, because the court could have continued the case for one day and allowed the witness to give a videotaped deposition. To satisfy the “due diligence” standard it is sufficient to serve the witness with a subpoena or to confirm the witness’s attendance in a reasonably reliable manner. The Fisher court found that counsel was diligent in attempting to ensure the witness’s presence, because in the week preceding trial, counsel twice confirmed the witness’s availability to testify at trial.
In analyzing whether “substantially favorable testimony” would have been forthcoming, we consider whether the witness’s testimony would have been favorable to the party, as well as the adequacy of any testimony or deposition placed in front of the jury, in lieu of testimony. Id. at 652. The Fisher court found that the deposition that was read to the jury was inadequate because it was overly technical, and it did not allow the jury to gauge the witness’s credibility, which was crucial because the witness would have been called to contradict the opposing party’s expert. Id.
Applying this analysis to the instant case, it is clear that Dr. Millheiser’s testimony would have been favorable to United Auto. The record further reflects that the only issue in the case was whether the bills and treatment were reasonable, related or medically necessary, a point both sides’ experts were prepared to address in testimony. However, only General Rehab was permitted to present an expert. Thus, the effect of the denial of the continuance deprived United Auto of the ability controvert the testimony of Dr. Marquez.
The record further demonstrates that United Auto was diligent in attempting to secure the presence of Dr. Millheiser. Dr. Millheiser was properly subpoenaed and his availability was orally confirmed. The holding in Fisher suggests that either the subpoena or confirmation with the expert’s office alone would suffice to meet the due diligence prong. United Auto did both, thus was diligent in attempting to procure the attendance of the witness.
Finally, United Auto represented that Dr. Millheiser would be available to testify the following morning. The record is devoid of information that supports the trial court’s conclusion that he would not appear the following day. Dr. Millheiser was the key witness for United Auto on the only issue at trial. As such the inability to call him caused material prejudice.
Accordingly, we REVERSE the decision of the lower court in this case, and REMAND the cause for a new trial. (MILLER & RUIZ-COHEN, JJ., concur.)
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