27 Fla. L. Weekly Supp. 830a
Online Reference: FLWSUPP 2709JOACInsurance — Jurors — Peremptory challenges — Medical provider who requested peremptory challenge potentially to be used in selecting alternate juror, but who never attempted to exercise peremptory strike on alternate juror and affirmatively accepted jury panel at conclusion of jury selection, waived request for peremptory challenge — Expert witnesses — Trial court did not err in allowing insurer’s expert witness to testify where provider’s objection to testimony was untimely under pretrial order and provider did not show good cause why objection was untimely — Even if objection was timely, testimony of accident reconstructionist satisfied Daubert standard where witness established his qualifications and opined on whether accident occurred as reported, not on whether accident could have caused insured’s injuries — Use of insured’s examination under oath for impeachment purposes only did not violate pretrial order
SILVER HILLS HEALTH & REHAB CLINIC, INC., a/a/o Elcana Joacius, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2015-CC-000063-O. January 3, 2017. Final Judgment September 19, 2016. Tina Caraballo, Judge. Counsel: Dave Tristian Sooklal, Anthony-Smith Law P.A., Orlando, for Plaintiff. Justin M. Bleakley, Cole, Scott & Kissane, P.A., Orlando, for Defendant.
[AFFIRMED. 27 Fla. L. Weekly Supp. 803a.]
ORDER DENYING PLAINTIFF’S MOTIONFOR NEW TRIAL
THIS CAUSE having come before the Court on Defendant’s Order Denying Plaintiff’s Motion For New Trial and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereby ordered as follows:
I. Plaintiff’s Allegation of Error in Voir Dire
Plaintiff’s first ground for new trial alleges that this Court erred in failing to grant Plaintiff an additional peremptory strike to be used in selecting the alternate juror. The Court finds that Plaintiff’s objection was waived. During voir dire, Plaintiff initially requested a peremptory challenge to be potentially used in selecting an alternate. (Transcript, 4: 5-12). The Court noted that Plaintiff’s request for an alternate strike may be a “non-issue” and Plaintiff’s counsel agreed. (Transcript, 5:1-2). At the end of voir dire, Defendant exercised a back strike, and Plaintiff objected to that backstrike. (Transcript, 7: 8-19). The Court overruled Plaintiff’s objection, and asked Plaintiff if they wanted to put anything on the record (Transcript, 9: 25). Plaintiff’s counsel responded, “No, Your Honor, other than our prior objection.” (Transcript 10: 2-3). Plaintiff never attempted to exercise a strike on an alternate juror, and did not renew its request for an alternate strike. At the conclusion of voir dire, Plaintiff’s counsel accepted the jury as empaneled without raising any objections to the jury or the alternate juror. (Transcript 16: 2-4).
Plaintiff now asserts Plaintiff’s counsel’s renewal of its “prior objection” constituted a renewal of its request for an alternate strike. The Court disagrees. The Court finds that Plaintiff’s renewal of its “prior objection” referred to its objection to the Court’s allowing Defendant to exercise a “back strike,” and not to its request for an alternate strike. To preserve an error in jury selection, a litigant must identify a specific juror who sat on the jury over the litigant’s objection. Trotter v. State, 576 So.2d 691, 694 (Fla. 1990). Additionally, to preserve an objection in jury selection, the objection must be renewed prior to the jury being sworn. Carratelli v. State, 961 So.2d 312, 318 (Fla. 2007) [32 Fla. L. Weekly S390a]. In this case, Plaintiff never attempted to exercise a peremptory strike on an alternate juror and affirmatively accepted the jury panel at the conclusion of jury selection. The Court finds that Plaintiff waived its request for an alternate strike by not attempting to exercise one and by affirmatively accepting the jury without raising the issue of its requested alternate strike. See Baccari v. State, 145 So.3d 958, 964 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1803b].
II. Plaintiff’s Allegation of Error in admission of William Brem’s testimony
Plaintiff alleges that this Court erred in allowing William Brem to testify, because his testimony violates Florida Statute 90.702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Plaintiff previously raised this objection to Mr. Brem’s testimony pretrial. The Court found that Plaintiff’s objection was untimely because Plaintiff’s Daubert objection was set for hearing six days before trial in violation of this Court’s pretrial order. Untimely Daubert challenges should rarely be considered. See Booker v. Sumter Ctny. Sheriff’s Office, 166 So.3d 189, 192 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D1291c]. At the pretrial hearing, Plaintiff’s counsel did not show good cause why the Daubert challenge was untimely. Accordingly, the Court maintains its pretrial finding that Plaintiff’s objection to Mr. Brem’s testimony was waived as untimely.
Even if Plaintiff’s objection was timely, the Court finds that Mr. Brem’s testimony satisfies the Daubert standard. Florida Statute Section 90.702 codifies the Daubert standard and requires that a qualified expert’s opinion be based upon: (1) sufficient facts or data; (2) reliable principles and methods; (3) and a reliable application of those principles and methods.
Mr. Brem testified that he had investigated over 2,000 accidents and had over eleven hundred hours of training in accident reconstruction. Plaintiff did not choose to voir dire Mr. Brem on his qualifications during trial, despite being offered an opportunity to do so.
Plaintiff’s objection to Mr. Brem’s testimony was based upon Carrier v. Ramsey, 714 So.2d 657 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1802a]. The Court finds that the Carrier case is distinguishable from the instant case. In Carrier, the accident reconstructionist attempted to offer an opinion regarding the ability of the accident to cause Plaintiff’s injuries. Id. at 659. In the instant case, Mr. Brem offered an opinion on whether the accident occurred as reported by the claimant. Unlike the opinion in Carrier, Mr. Brem’s opinion is entirely within the scope of a qualified accident reconstructionist. The Court further finds that it was not necessary for Mr. Brem take the pictures upon which he based his opinion. Boykin v. Western Express, Inc., 2015 U.S. Dist. Lexis 15297 (S.D. N. Y. 2015). Furthermore, there was no evidence presented by Plaintiff that the pictures that Mr. Brem relied upon to inform his opinion were inaccurate.
III. Plaintiff’s Allegation of Error Regarding Utilization of Examination under Oath Testimony
Plaintiff alleges that Defendant violated this Court’s pretrial order regarding the admissibility of Elcana Joacius’ Examination under Oath testimony. The Court previously ruled on this allegation during the trial. The Court finds that Defendant did not violate this Court’s pretrial order and that the transcripts of the Examination under Oaths were never used for a substantive purpose but only for impeachment.
Accordingly, for the reasons stated herein and for the reasons stated on the record at the hearing on Plaintiff’s Motion, this Court denies Plaintiff’s request for a new trial.
__________________FINAL JUDGMENT IN FAVOR OF DEFENDANT,STATE FARM MUTUAL AUTOMOBILE INSURANCECOMPANY, AGAINST PLAINTIFF, SILVER HILLSHEALTH & REHAB CLINIC, INC., A/A/O ELCANA JOACIUS
Pursuant to the verdict rendered in this action on August 26, 2016
IT IS ADJUDGED that Plaintiff, SILVER HILLS HEALTH & REHAB CLINIC, INC., A/A/O ELCANA JOACIUS, take nothing by this action and that Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, shall go hence without day and recover its costs from Plaintiff, SILVER HILLS HEALTH & REHAB CLINIC, INC., A/A/O ELCANA JOACIUS, in an amount to be taxed by the Court.
The Court reserves jurisdiction to tax such costs and to determine any award of attorney’s fees, consistent with Rules 1.442 and 1.525, Fla. R. Civ. P.
