25 Fla. L. Weekly Supp. 182b

Online Reference: FLWSUPP 2502THOMInsurance — Defendant was prejudiced in its preparation as result of plaintiff’s failure to properly disclose witness as an expert in its witness list and as result of statement made by plaintiff’s counsel to defense counsel at witness’s deposition that witness was present in capacity as corporate representative, and not as an expert — Motion for new trial granted

MIRACLE CHIROPRACTIC & REHAB CENTER, LLC, a/a/o Dieuvela Louis Thomas, Plaintiff, vs. SOUTHERN-OWNERS INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Civil Division. Case No. 2014CC-002079. January 10, 2017. Gerald P. Hill, II, Judge. Counsel: Crystal L. Eiffert, and Pamela Rakow-Smith, Orlando, for Plaintiff. Michael A. Adams, and Christopher J. Conoly, Orlando, for Defendant.

ORDER GRANTING DEFENDANT’S MOTIONFOR NEW TRIAL AND DENYING ALL OTHERPENDING MOTIONS AS MOOT

This cause came before the Court on December 20, 2016 for hearing on Defendant’s Motion for New Trial. Present mere Crystal L. Eiffert, Esq. (via telephone), counsel for Plaintiff; Pamela Rakow-Smith, Esq., counsel for Plaintiff; Michael A. Adams, Esq., counsel for Defendant; Christopher Brown, Esq., counsel for Defendant; and Christopher Conoly, Esq., counsel for Defendant. Having heard the arguments of counsel, reviewed the court file, the Motion for New Trial, Plaintiff’s Response to Defendant’s Motion for New Trial, having hearing the arguments of counsel, and otherwise being fully advised on the premises, finds as follows:

1. Plaintiff filed this action on May 7, 2014, seeking payment of amounts which Defendant claims to be due from Plaintiff as the insurer of a policy of insurance in favor of Dieuvela Louis Thomas, for chiropratic services rendered to Dieuvela Louis Thomas.

2. This matter was tried before a jury on April 4, 5 and 6, 2016. At the conclusion of the trial, the jury rendered a verdict in favor of Plaintiff.

3. On April 19, 2016, Defendant filed a Motion for New Trial.

4. In the Motion for New Trial, Defendant argues that a new trial should be granted because, inter alia, the Court erred in permitting Dr. Locklear to testify as an expert.

5. The basis of Defendant’s argument is that Dr. Locklear was not properly disclosed as an expert witness, thus precluding Defendant from properly preparing for trial, and that Dr. Locklear was not qualified to testify as an expert witness.

6. In determining whether a new trial is warranted when error has been preserved, the court must determine whether “the error is so pervasive or prejudicial that the injured party is denied the right to a fair trial.” Hasegawa v. Anderson, 742 So. 2d 504, 506 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D2372a].

7. As set forth in Defendant’s Motion for New Trial, this Court entered an Order Setting Pretrial Conference and Mediation on August 6, 2015 (the “Pretrial Order”).

8. The Pretrial Order required the parties to submit “a list of all witnesses who may be called at trial and for what purpose, e.g., liability, damages, etc., with expertise designated.” (emphasis added).

9. On August 26, 2016, Plaintiff filed a witness list, which listed Dr. Victor Locklear as a witness. The witness list stated that Dr. Locklear would testify “as to the treatment provided by Plaintiff to Ms. Dieuvela Louis Thomas, the medical necessity, causal relationship of treatment to the auto accident, damages, reasonableness of the charges submitted by Plaintiff and Defendant’s affirmative Defenses.” See Pl.’s Witness List dated August 26, 2015, ¶ 2.

10. Plaintiff’s counsel, Pamela Rakow-Smith, specifically stated to Defendant’s counsel at Dr. Locklear’s deposition that “[Dr. Locklear’s] here as the corporate rep for this file. He hasn’t been tendered as an expert at this point. He’s on our witness list, but it’s not an expert at this point in time, if you need to refer to that.” Depo. of Dr. Victor Locklear, p. 108, 1. 5-10.

11. Defendant argued at the commencement of the trial pursuant to Defendant’s Sixth Motion in Limine that Plaintiff’s disclosure did not sufficiently identify Dr, Locklear as an expert witness, and as such, and in conjunction with Ms. Rakow-Smith’s statement to Defendant’s counsel at Dr. Locklear’s deposition, Defendant was prejudiced, as Defendant was unaware Dr. Locklear would be testifying as an expert witness.

12. Based on the foregoing, the Court finds that Defendant was prejudiced in its preparation for trial as a result of the manner of Plaintiff’s disclosure of Dr. Locklear in its witness list, as well as Ms. Rakow-Smith’s statement to Defendant’s counsel at Dr. Locklear’s deposition. As such, the Court finds that Defendant was denied the right to a fair trial, and as such, a new trial is warranted pursuant to Hasegawa. Id.

13. As a result of the foregoing, the Court finds that it is not necessary to address the other pending post-trial motions in this matter, as this finding has rendered said motions moot.

Based on the foregoing, it is hereby ORDERED AND ADJUDGED:

1. Defendant’s Motion for New Trial is GRANTED.

2. All other pending post-trial motions in this matter are denied as moot.