27 Fla. L. Weekly Supp. 122a
Online Reference: FLWSUPP 27021010Insurance — Personal injury protection — Evidence — Deposition of expert witness — Trial court abused its discretion in allowing insurer to admit deposition of physician as expert witness under rule 1.330 where physician’s testimony did not include expert opinion but, rather, disputed factual issue regarding whether billed services were actually rendered, and insurer did not demonstrate that it exercised reasonable due diligence to procure physician’s attendance at trial — Fact that medical provider previously listed physician as expert witness for purpose of having expert witness fee paid for deposition did not invite error — New trial required where erroneously admitted deposition was only evidence to support jury’s finding that there were billed services that were not rendered
1010 MEDICAL SERVICES, INC., Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-076 AP. L.T. Case No. 06-2764 SP 26. April 4, 2019. An appeal from the County Court in and for Miami Dade County. Counsel: David B. Pakula, P. A., for Appellant. Daniel M. Schwarz, and Lissette Gonzalez, for Appellee.
(Before PRESCOTT, SAMPEDRO-IGLESIA, and DEL RIO, JJ.)
(DEL RIO, J.) This is an appeal from a final judgment for personal injury protection (PIP) benefits rendered in favor of appellee State Farm Fire & Casualty Company (“State Farm”). The issue on appeal is whether the trial court abused its discretion by allowing State Farm to use Dr. Carlos Barrera’s deposition at trial on the basis that his testimony met the requirements for an expert witness pursuant to Fla. R. Civ. P. 1.330 and, if so, whether it was harmful error.
Dr. Carlos Barrera’s deposition was introduced into evidence by appellee. Initially, Dr. Barrera had been listed as an expert witness by the opposing party, appellant 1010 Medical Services Inc. (“1010 Medical”). State Farm took Dr. Barrera’s deposition in 2010 to investigate a claim related to Leonardo Perez’ 2006 automobile accident. According to Dr. Barrera’s deposition, the patient’s x-rays were performed at a nearby facility but not at 1010 Medical. At the commencement of trial, the Court granted one expert witness per side. 1010 Medical intended to rely on Dr. Jose Suarez as their expert and State Farm intended to rely on Dr. Peter Milheiser as their expert. Thereafter, State Farm moved to introduce the deposition of Dr. Carlos Barrera as an expert witness and 1010 Medical objected. Depositions are admissible at trial in lieu of live witness testimony under certain circumstances, Fla. R. Civ. P. 1.330 (a)(3). State Farm argued that Dr. Carlos Barrera had been previously listed as an expert by State Farm and that in addition, they had attempted to subpoena Dr. Barrera for trial, providing two reasons that would allow them to introduce the testimony by deposition. The trial court allowed the introduction of the deposition into evidence.
Both parties conceded at oral argument on March 21, 2019 that there was no other evidence presented to the jury besides Dr. Barrera’s deposition to support a finding that 1010 Medical did not render the billed services that were charged. Both parties also agreed that the trial judge ordered one expert witness per side. In support of their position that the trial court did not abuse its discretion by allowing the introduction of Dr. Barrera’s deposition, State Farm cites Castaneda v. Redlands Christian Migrant Association, 884 So. 2d 1087 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D2346a] and argues that the deposition was properly introduced because it was authorized by rule 1.330. However, this Court finds that Dr. Barrera’s deposition consisted of factual testimony that did not meet the standards required by Fla. R. Civ. P. 1.330 (a)(3)(0 to be deemed expert testimony. Lucia v. Diaz, 42 Fla. L. Weekly D1868[a] (Fla. 2d DCA Aug. 25, 2017). Although State Farm did list Dr. Barrera as an expert witness for the purposes of paying his fee for his deposition, his testimony did not suffice as that of an expert but served to merely dispute a factual issue between the parties.
This Court also opines that State Farm did not provide enough evidence that they complied with the reasonable due diligence requirements of Fla. R. Civ. P. 1.330 (a)(3)(d) to procure the attendance of Dr. Carlos Barrera before allowing his deposition to be introduced as expert testimony. Weber v. Berry, 133 So.2d 327. At trial, State Farm represented that they had attempted service of Dr. Barrera by way of 1010 Medical’s counsel. It should be noted that at the time of his deposition in 2010, Dr. Barrera was no longer associated with 1010 Medical. It is unknown whether 1010 Medical’s counsel had any further contact with Dr. Barrera after he was deposed in 2010. State Farm asserted that Dr. Barrera had “disappeared” but it remains a mystery what additional efforts, if any, were taken. State Farm did not assert that personal service was attempted at Dr. Barrera’s last known address. State Farm has thus not demonstrated due diligence in procuring the attendance of Dr. Barrera at trial.
Appellee contended that the error of admitting Dr. Barrera’s deposition was an invited error. The Invited Error Doctrine applies when a party has requested certain action in the lower court and then seeks to challenge the correctness of this ruling on appeal. Bryan v. Bryan, 930 So.2d 693 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1043e]. Appellee asserts that because Appellant previously listed Dr. Barrera as an expert and he was paid an expert witness fee, appellant invited the error that they now challenge. However, the invited error doctrine was misapplied here. Even if Dr. Barrera was previously listed as an expert witness, for the purposes of having an expert witness fee paid for the deposition, clearly State Farm was seeking to introduce his deposition for the purposes of supporting their assertion that services had been billed but not rendered.
State Farm alternatively contends that the trial court’s decision to allow the use of Dr. Carlos Barrera’s deposition testimony at trial can be affirmed under the Tipsy Coachman Doctrine. Under this doctrine, if a trial court reaches the right results, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record. Taylor v. State, 146 So.3d 113 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1832c]. However, the appellant has not demonstrated that the trial court could have admitted the deposition under one of the other enumerated requirements that satisfy Fla. R. Civ. P. 1.330 (a)(3). There are no grounds to support a finding that the trial court did not abuse its discretion in admitting Dr. Barrera’s deposition.
For the foregoing reasons, appellant has demonstrated that the trial judge’s erroneous ruling was harmful under the test enunciated in Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1253, 1265 (Fla. 2014) [39 Fla. L. Weekly S676a]. Appellee, as beneficiary of the error, bears the burden of proving there is no reasonable probability that the error complained of contributed to the verdict. Appellee has not offered any other evidence to support the jury’s finding that there were services that were billed and not rendered. Appellee has also been unable to demonstrate that the introduction of the deposition did not constitute abuse of discretion, as it did not meet the requirements set out by the Florida Rules of Civil Procedure 1.330. Therefore, we reverse the final judgment by the lower court and remand, for a new trial consistent with this opinion.
Following an abuse of discretion standard of review, we find that the trial court did abuse its discretion and that the error was harmful; as such we reverse the final judgment entered in January 2017 and remand for a new trial consistent with this opinion. Hutchings v. Liles, 86 So.3d 1279, 1281 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1138c]. (PRESCOTT and SAMPEDRO-IGLESIA, JJ., CONCUR)
