5 Fla. L. Weekly Supp. 58a
Insurance — Subrogation — Evidence — Expert witnesses — Abuse of discretion to deny insurance company’s request to qualify doctor as expert, or to use deposition at trial, where expert was only witness through which party could prove its request for damages resulting from injuries suffered by insured, and testimony was essential to case
COLONIAL PENN INSURANCE COMPANY A/S/O A WANG, Appellant/Petitioner, vs. FLORA S. MARTINEZ AND JERALDO MARTINEZ, JR., Appellee/Respondent. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-257 AP. L.T. Case No. 94-16432 CC 05. Opinion filed September 26, 1997. An Appeal from County Court for Dade County, Florida, Nancy J. Pollock, Judge. Counsel: Ralph W. Symons, for appellant. Flora S. Martinez and Jeraldo Martinez, pro se.
(Before PHILIP BLOOM, ALLEN KORNBLUM and GISELA CARDONNE, JJ.)
(ALLEN KORNBLUM, J.) Appellant Colonial Penn Insurance Company A/S/O Wang (“Appellant”), seeks the reversal of a Final Order denying its Motion for Rehearing on trial for damages. Since the trial court erred when it denied appellant’s request to qualify Dr. Kyzor DahDah as an expert or in the alternative use his deposition at trial, we reverse the final order denying appellant’s request for a new trial and remand for a new trial.
In this case, the trial court denied appellant’s request to qualify Dr. DahDah as an expert or in the alternative use his deposition at trial. Although the trial court has broad discretion in determining whether one who is proffered as an expert witness should be accepted as such, this discretion is not unbridled. Trustees of Central States Southeast and Southwest Areas, Pension Fund v. Indico Corp., 401 So. 2d 904, 905 (Fla. 1st DCA 1981). Under Florida Rule of Civil Procedure 1.390(a), an expert witness is defined as “a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and expertise, or one possessed of special knowledge or skill about the subject upon which called to testify.”
It is well settled that “[t]he right to present evidence and call witnesses is perhaps the most important due process right of a party litigant.” LoBue v. Travelers Insurance Company, 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980), rev. denied sub nom. Burnes v. Stafford-LoBue, 397 So. 2d 777 (Fla. 1981). A trial court should only exclude witnesses under the most compelling of circumstances. Id. This is particularly so when the exclusion would be of a party’s most important witness. Therefore, “it is critical for trial court to exercise extreme caution when excluding a party’s only witness.” Keller Industries v. Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995).
In the instant case, appellant’s attempt to qualify Dr. DahDah as an expert was the only witness through which appellant could prove its request for damages resulting from the injuries suffered by the insured. The doctor’s testimony whether in person or by deposition was essential to appellant’s case. Applying these principles to the instant case, we conclude that appellant has not been fully accorded its day in court. LoBue, supra.
Accordingly, this cause is hereby reversed and remanded for a new trial consistent with the terms of this opinion. (PHILIP BLOOM and GISELA CARDONNE, JJ. concur.)
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