7 Fla. L. Weekly Supp. 552a
Insurance — Personal injury protection — Insurer failed to present any evidence to refute reasonableness of medical bills of chiropractor and of neurologist and orthopedic surgeon to whom insured was referred by chiropractor — Plaintiff entitled to directed verdict as to each bill — Argument — Expressions of personal opinion as to credibility of witness or personal knowledge of facts is fundamentally improper — Defense counsel’s improper character attacks, expression of personal views and opinions which were not supported by evidence, and improper appeals to jury’s emotion, bias and prejudices had cumulative effect of denying plaintiff a fair trial — New trial required as to medical expenses not encompassed by plaintiff’s motion for directed verdict
Reversed in part; affirmed in part at 8 Fla. L. Weekly Supp. 354a
VERONICA DAVIS, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 99-007361-COCE-54. May 15, 2000. Zebedee W. Wright, Judge. Counsel: Cris E. Boyar, for Plaintiff. Rafael Katz, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR DIRECTED VERDICT, MISTRIAL and NEW TRIAL
THIS CAUSE came before the Court on April 14, 2000, upon Plaintiff’s Motion for Directed Verdict, Mistrial & New Trial pursuant to Rule 1.480 of the Fla. R.C.P., and the Court having considered same, having heard argument of counsel, and being otherwise duly advised in the premises, finds and decides as follows:
This is an action for personal injury protection benefits. After a jury trial, a verdict was rendered in favor of the Defendant. The Plaintiff has moved for a directed verdict stating as a matter of law, she is entitled to reimbursement for the following medical bills: 1) Dr. Brad Chayet for services rendered on October 30, 1998; 2) Dr. Victor Hochberg for services rendered on November 5, 1998; and 3) Dr. Stuart Sklarek for services rendered on October 12, 1998.
The Plaintiff also moves for a New Trial for the medical expenses which are not the subject to the Plaintiff’s Motion for Directed Verdict since the improper, prejudicial, and inflammatory comments made by the attorney for the Defendant in his opening statement and in his closing argument, prevented Plaintiff from receiving a fair and impartial trial.
Findings of Fact and Conclusions of Law as to the Plaintiff’s Motion for Directed Verdict
The Plaintiff was insured by the Defendant for Personal Injury Protection benefits, and was injured in an automobile accident on February 13, 1998. On the day of the accident the Plaintiff was treated for neck pain at Memorial Hospital. The emergency room doctor referred the Plaintiff to her family physician, Dr. Mario Werbin, who treated her on two occasions for neck pain, and then referred her to a chiropractor for follow up treatment.
The Plaintiff received chiropractic treatment from Dr. Stuart Sklarek for neck pain approximately 23 times. On August 28, 1998, towards the end of her chiropractic treatment, the Plaintiff underwent an MRI of her neck which showed a bulging disk at C5-C6 causing anterior impression on the thecal sac, and a herniated disk at the C6-C7 level causing anterior impression on the thecal sac. An earlier MRI reflected the bulging disc only.
Dr. Sklarek referred the Plaintiff to orthopedic surgeon, Dr. Brad Chayet, for an evaluation because of the positive MRI, and her medical history of diabetes, high blood pressure, a heart condition, range of motion problems, and to differentiate between diabetic neuropathy and the encroachment of a nerve root. Dr. Chayet testified the Plaintiff received a permanent injury as a result of the accident, and that it was reasonable for him to examine the Plaintiff.
As to the necessity of the orthopedic evaluation, Dr. Lawrence Ashkinazy, the expert chiropractor retained by the Plaintiff, testified it was reasonable for Dr. Sklarek to refer the Plaintiff to see an orthopedic surgeon. The Defendant’s expert chiropractor, Dr. Bruce Rosenkrantz, testified, it was reasonable for the Plaintiff to be referred to an orthopedic surgeon and to a neurologist for an evaluation. Finally, the orthopedic surgeon hired by the Defendant, Dr. Martin Mendelssohn, testified it was “admirable” for Dr. Sklarek to refer the Plaintiff to see Dr. Chayet.
Dr. Sklarek testified he referred the Plaintiff to see neurologist, Dr. Victor Hochberg, because of the Plaintiff’s diabetic history, hypertension, complaints of pain traveling from her neck to her hands, and to differentiate between a possible diabetic neuropathy versus referred pain from a visceral organ such as the heart. The Plaintiff treated with Dr. Hochberg on two occasions. On the first visit, Dr. Hochberg examined the Plaintiff and prescribed a medication known as Naprosyn, and ordered an MRI. This first visit with Dr. Hochberg was the day after the defense examination performed by orthopedic surgeon, Dr. Mendelssohn. The Defendant paid for this first visit. Dr. Hochberg asked the Plaintiff to return for a follow up visit after the MRI was completed. The Defendant refused to pay for the second visit predicated on a report generated by Dr. Mendelssohn.
At the time of trial Dr. Mendelssohn, the Defendant’s expert orthopedist, testified he prescribes MRIs and medications such as Naprosyn. According to Dr. Mendelssohn, when he prescribes MRIs or medications for his clients, he asks them to come back for a follow up visit; and that it was reasonable and the standard in the community for patients to come back for a follow up visit. Dr. Mendelssohn, specifically agreed that Dr. Hochberg was acting reasonably when he asked the Plaintiff to return for a follow up visit.
Dr. Sklarek testified the Plaintiff received a permanent injury to her neck as a result of the accident. This opinion was based on his treatment and the final evaluation of the Plaintiff. Dr. Sklarek does a final evaluation on all his patients to formulate a prognosis and a plan for future treatment, if any. Dr. Sklarek’s last bill for the evaluation was submitted to the Defendant, but was not paid due to a report generated by the Defendant’s expert chiropractor, Dr. Rosenkrantz. At the time of trial, Dr. Rosenkrantz testified he does a final comprehensive exam at the end of treatment, that it is standard in the community to do it, and that there was nothing unusual about that.
When construing provisions of the No-Fault Act, Florida Courts are to construe a liberal construction of the law in favor of the insured. See Palma v. State Farm Fire & Casualty Co., 489 So.2d 147 (Fla. 4th DCA 1986). The expense of diagnostic testing is recoverable even if the tests are negative, or if the tests reveal the injuries are not related to the accident. See Banyas v. American Mutual Fire Insurance Co., 359 So.2d 506 (Fla. 1st DCA 1978). Furthermore, referrals to other medical providers to rule out other medical conditions are also recoverable. See Farmer v. Protective Cas. Insurance Co., 530 So.2d 356 (Fla. 2d DCA 1988) and Ridenour v. Sharek 388 So.2d 222 (Fla. 5th DCA 1980).
Therefore, the Court finds the Defendant failed to present any evidence to refute the reasonableness of the medical bills of Dr. Brad Chayet for services rendered on October 30, 1998, for Dr. Victor Hochberg for services rendered on November 5, 1998; and for Dr. Stuart Sklarek for services rendered on October 12, 1998. While a jury is free to “accept” or “reject” the testimony of a medical expert just as it may accept or reject that of any other expert, it is not free to reject uncontroverted medical testimony. See Sutton v. Grossteiner, 24 Fla. L. Weekly D2630 (Fla. 2d DCA 1999). Short v. Ehrler, 510 So.2d 1110 (Fla. 4th DCA 1987); Williamson v. Superior Insurance Co., 746 So.2d 483 (Fla. 2d DCA 1999); Vega v. Travelers Indemnity Co., 520 So.2d 73, 75 (Fla. 3d DCA 1988). Accordingly, the Plaintiff is entitled to a directed verdict as to each bill.
Findings of Fact and Conclusions of Law as to Plaintiff’s Motion for New Trial
The Plaintiff argues she is entitled to a new trial based on the statements made by the attorney for the Defendant in his opening statement and closing argument. Plaintiff argues the below comments were not supported by any testimony, not relevant, and were made solely to prejudice the Plaintiff and inflame the jury which served to deny her a fair and impartial trial. In support of the Plaintiff’s Motion, the Plaintiff cites the following examples of improper statements made by counsel for the Defendant:
In opening statement, Counsel for the Defendant said Dr. Sklarek intentionally hid records. In closing argument, Counsel for the Defendant said Dr. Sklarek was the director of a movie, a liar and that he orchestrated the treatment.
Counsel for the Defendant stated in his closing argument the Plaintiff lied to each one of the members of the jury, and he called the Plaintiff a “liar” on numerous occasions.
Counsel stated the Plaintiff received the treatment to pay for her lawsuit against the person who caused the accident.
Counsel commented about his client’s lack of motivation to settle this case stating the bills at issue were “less than nuisance value”, and his client was “not willing to settle for nuisance value instead of $10 or $20,000.” He said if his client was willing to settle for nuisance value then “we wouldn’t be here.” He said “nobody is going to pay big money to liars.” He told the jury that insurance companies have to “protect themselves” from people like the Plaintiff. He said that it is was “within the adjuster’s discretion if they want to send records out to be reviewed.” Counsel compared an insurance policy to a “lottery ticket” when he said “insurance coverage, it’s not like a lottery ticket, so when I have an accident it’s like ching, ching, ching, ching, not at all.”
He further stated in his closing argument the report prepared by Dr. Chayet was generated for his impairment rating so the Plaintiff can sue because “that’s what they do for litigation clients.” He stated the Plaintiff was “buying an opinion.” Counsel also stated the reason why an MRI was performed was to “document the lawsuit.” He said that Dr. Hochberg “did not come to Court because he did not give an impairment rating” and he did not want to “play the game” when there was no evidence of same. He discussed the Plaintiff’s settlement of her third party claim with the tortfeasor.
Finally, in his closing, he commented on the Plaintiff’s reading the deposition of Dr. Sklarek in trial and failing to call him live. He asked the jury “what the Plaintiff had up her sleeve” and “what are they hiding.” He commented on the Plaintiff’s failure to call Dr. Hochberg to testify at trial when he was equally available to both parties. He commented on the Plaintiff’s failure to have anyone testify Dr. Hochberg’s bill was reasonable. He further commented to the jury about the Plaintiff’s objection during the trial of unfair surprise as to testimony given by Dr. Mendelssohn of opinions not contained in his report even though said objection was sustained.
An attorney’s expression of his personal opinion as to the credibility of a witness, or of his personal knowledge of facts, is fundamentally improper. Airport Rent-A-Car v. Lewis, 701 So.2d 893 (Fla. 4th DCA 1997); Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 258 (Fla. 1st DCA 1996). While an attorney is given broad latitude in closing argument, his remarks must be confined to the evidence, the issues and inferences that can be drawn from the evidence. Muhammad, 668 So.2d at 258. However, counsel’s remarks were not confined to the evidence or the inferences that can be drawn from the evidence. The above comments made by Counsel for the Defendant were not supported by the evidence and improper.
More specifically, he should not have referred to Dr. Sklarek as the director of a movie to orchestrate the treatment. See Wolfson v. Liberty Mutual Insurance Co., 7 Fla. L. Weekly Supp. 338 (Fla. Broward Cir. Court 2000). He should not have referred to Dr. Sklarek as a liar when there was no evidence of same. He should not have discussed or referred to his Client’s motivations for not settling this case since it is improper and there was no evidence of same. See Donaldson v. Dwight CENAC, 675 So.2d 228 (Fla. 1st DCA 1996). He should not have commented on Plaintiff’s counsel’s reading of the deposition of Dr. Sklarek in trial and failing to call him live. See Riggins v. Mariner Boat Works, Inc., 545 So.2d 430 (Fla. 2d DCA 1989). It was improper for him to ask the jury what the Plaintiff had up her sleeve and what she was hiding since there was no evidence of same. It was improper for Counsel to comment to the jury about Plaintiff’s Counsel’s objection of unfair surprise as to opinions not contained in Dr. Mendelssohn’s report especially when the objection was sustained during the trial. See Lowder v. Economic Opportunity Family Health Center Inc., 680 So.2d 1133 (Fla. 3d DCA 1996).
Based on the Court’s personal observations of the trial and the conduct of counsel for the Defendant, this Court finds the jury was influenced by the improper comments resulting in a verdict which failed to comport with the manifest weight of evidence. Counsel’s remarks were improper appeals to the jury’s emotion, bias and prejudices. The comments were character attacks, and Defense counsel’s personal views and opinions which were improper and not supported by the evidence, constituted fundamental error. As a result, the Plaintiff was denied a fair trial due to the cumulative nature and effect of counsel’s improper comments. See Airport Rent-A-Car v. Lewis, 701 So.2d 893 (Fla. 4th DCA 1997); Cohen v. Pollack, 674 So.2d 805 (Fla. 3d DCA 1996); Pippin v. Latosynski, 622 So.2d 566 (Fla. 1st DCA 1993); Borden, Inc. v. Young, 479 So.2d 850 (Fla. 3d DCA 1985).
Accordingly, the Plaintiff is entitled to a new trial as to those medical expenses not the subject of the Plaintiff’s Motion for Directed Verdict. Pierce v. Nicholson Supply Co., Inc., 676 So.2d 70 (Fla. 3d DCA 1998). Continuum Condominium Assn, Inc. v. Continuum VI, Inc., 549 So.2d 1125 (Fla. 3d DCA 1989); Perlman v. Valdes, 575 So.2d 216 (Fla. 3d DCA 1990).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Directed Verdict and Motion for New Trial is hereby granted.
* * *
