FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 12

CASES FROM THE WEEK OF MARCH 23, 2018

ONE EXPERT PER SPECIALTY--WHAT TESTIMONY IS CUMULATIVE?

Guiterrez v. Vargas, 43 Fla. L. Weekly S143 (Fla. March 22, 2018):

In this medical malpractice action arising out of a child’s kidney disease, the jury awarded plaintiffs several million dollars.

The defendant doctor argued that the trial judge had erred in allowing the plaintiffs to present testimony from multiple expert witnesses in the same area of specialty, and in violation of the court’s pretrial order. The trial court denied the defendant’s motions for new trial and for directed verdict, but reversed for a new trial based on the plaintiffs’ violation of the “one expert per specialty” rule, and for materially misrepresenting the evidence in closing arguments.

The trial court had entered a pretrial order limiting each party to one retained expert per specialty. During trial, plaintiffs offered deposition testimony of a pathologist who examined a biopsy of the child’s kidneys before her transplant, and also presented the testimony of a pathologist who examined the child’s native kidneys after they were removed. Plaintiffs then presented two expert witnesses to testify with respect to the pathology of the child’s condition--one in her case in chief and the other in rebuttal.

The Third District held that the court abused its discretion by failing to enforce its pretrial order, and granted a new trial because plaintiffs were able to call four expert pathologists, which it found unfairly prejudiced the defendant and violated the order.

Reminding us that a trial court’s enforcement of its own pretrial order is reviewed for abuse of discretion, and reversal is appropriate only when the affected party can clearly show the abuse of discretion resulted in unfair prejudice, the supreme court held that the testimony of the two treating physicians did not violate the pretrial order, because they testified as the plaintiffs’ treating physicians, not as experts.

The supreme court then analyzed the difference between treating physicians and expert witnesses. Treating physicians are limited to their medical opinions as they existed at the time they were treating the plaintiff.

Conversely, an expert may form new opinions in order to help the trier of fact decide the case. While an expert witness assists the jury in understanding the facts, a treating physician testifies as a fact witness “concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another.”

The supreme court reminded us that not all medical opinions formed by a treating physician are automatically admissible however. It is entirely possible that even a treating physician’s testimony can cross the line into expert testimony, when the medical opinion is formed for the purposes of litigation rather than treatment. When that is the case, the mere fact that a physician once treated the plaintiff does not prevent the doctor from being considered an expert.

The court then explained that although treating physicians do not necessarily fall within the scope of a “one expert per specialty” limitation, their testimony may nevertheless be excluded if it is cumulative. Cumulativeness alone is not sufficient grounds to exclude evidence however; the probative value of the evidence must be “substantially outweighed” by the danger of “needless presentation of cumulative evidence.”

In this case, although the testimony from two pathologists was confirmatory, it did not rise to the level of “unnecessary” cumulativeness. Each pathologist based his testimony on a separate view of different slides made from a biopsy material collected at different times. Although their respective testimony expressed similar conclusions, these doctors each testified to personal observations based in part on the same facts and evidence, but also based in part on new facts and evidence. Therefore, the testimony was not cumulative.

Additionally, for the same reasons, the physicians’ testimony was not cumulative to the testimony of the pathology experts; these doctors testified as to what they observed and concluded during the child’s treatment. The retained experts, in contrast, testified based on the review of not just the evidence available to the child’s treating pathologist, but also as to other evidence in the case as well. Although the plaintiffs’ fact witnesses and expert witnesses testified to similar conclusions, that did not render their testimony cumulative.

As for rebuttal testimony, trial courts have broad discretion to admit it. A trial court abuses that discretion when limits non-cumulative rebuttal that goes to “the heart of” the principal defense.

The rebuttal expert was not the plaintiffs’ fourth expert pathology witness, and the testimony was not cumulative because he testified about evidence which the first expert did not address in his testimony. On rebuttal, the doctor discussed only photographs introduced during the defense expert’s testimony, and these photographs were only introduced in the defendant’s case in chief. Additionally, the testimony did not improperly bolster the first expert’s testimony.

The supreme court concluded that the trial judge had not abused its discretion by permitting the two pathologists to testify as the child’s treating physicians, nor by permitting another expert to testify in rebuttal. As to the argument regarding a comment made in closing, since that too went to allegedly cumulative testimony, it did not merit a new trial either. The court remanded and reversed for re-entry of the final judgment.

INSURERS MUST REDUCE THE PROVIDER’S CHARGES TO THE STATUTORILY APPROVED PERMISSIVE FEE SCHEDULE BEFORE APPLYING DEDUCTIBLES--IN-DEPTH DISCUSSION OF PIP STATUTE FOCUSING ON REASONABLENESS, INTERPRETATION OF STATUTE AND APPLICATION OF STATUTES TO THE CASE--CONFLICT CERTIFIED.

State Farm Mutual Automobile Insurance Co. v. Care Wellness Center, LLC a/a/o Virginia Bardon-Diaz, 43 Fla. L. Weekly D573 (Fla. 4th DCA March 14, 2018):

State Farm issued a PIP policy with a $1,000 deductible. The insurer received bills for services from all of the providers totaling $1,812, an amount which was reduced to $825.96 after the insurer applied the fee schedule. The provider submitted three bills to the insurer for the insured’s treatment, but the deductible was applied to only two. The total amount billed for the two bills was $385 and after the insurer applied the fee schedule, the two bills were reduced to $258.60. The deductible consumed the entire amount.

The provider sued for breach of contract, alleging that the insured was covered by the vehicle insurance policy, and had received treatment from the provider. The provider alleged that the insured gave notice of the covered losses and made a demand for PIP benefits.

The provider’s amended complaint stated that the provider did not dispute that the insurer’s policy clearly and unambiguously put its insured on notice of its election to limit reimbursements to the permissive fee schedule rate. The provider also acknowledged the existence of the policy deductible.

The issue in the case was the proper application of the PIP claim deductible, which involves interpretations of both the statute and the policy.

The PIP deductible statute, section 627.739 provides that policies should contain deductibles, and that the deductible amount is applied to 100% of the expenses and losses. The statute says that after the deductible is met, each insured may receive up to $10,000 in total benefits.

To determine the meaning of the phrase “expenses and losses” the Fourth said section 627.739(2) must be read along with section 627.736. Reading the two sections together, the Fourth found the deductible must be applied to 100% of the reasonable and necessary expenses.

In other words, there is no PIP claim until the provider’s bill is reduced, if necessary, to the amount set forth in section 627.736(5)(a)1, and if there is no PIP claim until the amount is reduced to the amount found to be reasonable by the legislature, then there is nothing to apply the deductible to until the amount is reduced. Because the deductible applies to expenses as described in section 627.736, the deductible is applied to the amounts after the reduction.

Logically, insurance deductibles only apply to losses “covered” under the policy, not simply the total bills submitted. To apply the deductible to the bill of charge irrespective of whether the charge was reasonable--or even covered--would effectively render the deductible meaningless. The insurer offers the PIP coverage at different premiums depending on the amount of the deductible and if the coverage were not relevant to the deductible, then the insurer would have no reason to offer reduced premiums in exchange for a higher deductible.

Thus, because the PIP statute allows insurers to offer policies with varying deductibles, the statute instructs that the deductible is to be applied 100% of the expenses and losses described in section 627.736. Those expenses and losses require that all expenses be reasonable, and the statute provides that the amount charged to both the “insurer and injured party” must be reasonable. The statute also determines what is reasonable--a predetermined fee schedule. To apply the deductible to the total amount billed, even if the amount exceeds the statutory fee schedule, would render portions of the legislation meaningless.

Thus, the insurer may reduce the amount of a provider’s bill to a reasonable amount, as provided on the fee schedule, and then, after determining the reasonable amount, the insurer may apply the deductible.

NOTE: There are actually multiple cases in this week’s Florida Law Weekly addressing this PIP deductible issue as addressed by the Fourth District including Progressive Select Insurance Co. v. Blum, 43 Fla. L. Weekly D569 (Fla. 4th DCA March 14, 2018); USAA General Indemnity Co. v. Gogan, 43 Fla. L. Weekly D570 (Fla. 4th DCA March 14, 2018). The Fourth District certified conflict with Progressive Select v. Florida Hospital Medical Center, 43 Fla. L. Weekly D318 (Fla. 5th DCA February 9, 2018).

WHERE A PRESIDING TRIAL JUDGE MADE A DEFINITIVE RULING ON THE ISSUE OF ENTITLEMENT TO ATTORNEY’S FEES AND COSTS BOTH IN THE ORIGINAL FINAL JUDGMENT AND IN AN ORDER DENYING THE MOTION TO AMEND THE FINAL JUDGMENT TO INCLUDE ATTORNEY’S FEES AND COSTS, A SUCCESSOR TRIAL JUDGE HAS NO AUTHORITY TO REVERSE THE ORIGINAL JUDGE’S DECISION TO DENY FEES AND COSTS.

Balva v. Ontario Wealth Management Corp., 43 Fla. L. Weekly D580 (5th DCA March 14, 2018).

THE RIGORS OF SECOND-TIER CERTIORARI REVIEW.

State Farm v. CC Chiropractic, 43 Fla. L. Weekly D583 (Fla. 4th DCA March 14, 2018):

In a PIP case, the county court entered a final judgment for the provider, and State Farm appealed to the circuit court. After full briefing, the circuit court issued a PCA without explanation, and denied State Farm’s motion for rehearing.

State Farm then petitioned the Fourth District for a second-tier certiorari review, arguing that the circuit court disregarded evidentiary standards governing summary judgment, that the affidavit unquestionably created a triable issue of fact on reasonableness, that the circuit court’s alleged error in affirming the final judgment departed from the essential requirements of law resulting in a miscarriage of justice, and finally that the circuit court had denied State Farm procedural due process.

The Fourth District reminded us that second-tier certiorari is not a second appeal. It is “extraordinarily limited, and narrow in scope.”

State Farm’s appeal to the circuit court challenged the county court’s application of a procedural rule on an evidentiary statute. Even assuming the county court made legal errors, the circuit court’s PCA was not a violation of a clearly established principle of law resulting in a miscarriage of justice to permit second-tier review.

At best, the court noted that State Farm argued the circuit court committed an ordinary legal error through its affirmance, and that State Farm failed to show that the circuit court failed to apply the correct law. All State Farm effectively asked the Fourth District to do was to review the correctness of the county court’s decision. Even if the court agreed that State Farm had shown a genuine issue of material fact regarding reasonableness of the charges, the limited scope of second-tier certiorari review did not permit a second appeal.

State Farm’s arguments concerning a denial of its procedural due process were directed at the county court proceedings. Again, that exceeded the second-tier review because the petition did not show that the circuit court denied State Farm notice or a meaningful opportunity to be heard.

Notably, the court expressed that even if a legal error occurs, this does not mean that a miscarriage of justice exists. The court suggested that if State Farm wants district courts to review these issues, it should ask the county court to certify questions of great public importance pursuant to rule 9.160.

ARBITRATION AGREEMENT WHICH INCLUDED NUMEROUS PROVISIONS VIOLATING FLORIDA PUBLIC POLICY, INCLUDING A LIMITATION OF LIABILITY PROVISION WAS UNENFORCEABLE.

Gaeta v. Seaside Manor, 43 Fla. L. Weekly D600 (Fla. 5th DCA March 16, 2018):

The arbitration agreement in this case included a limitation of liability as well as other provisions that violated Florida’s public policy and could not be severed. As the agreement had no delegation provision, established case law compels a conclusion that the limitation of liability provision in the agreement was both unenforceable and not severable.