41 Fla. L. Weekly D1315aTop of Form
Torts
— Automobile accident — New trial — Trial court abused discretion by
granting plaintiff’s motion for new trial on grounds that defense violated
sequestration rule and that defense expert witness violated court order that he
not testify as to new opinions that were not included in his certified medical
examination report — Defense counsel’s conference with sequestered defense
expert regarding testimony of another expert was not ground for new trial where
sequestered witness’s testimony did not substantially differ from what it would
have been had the sequestration rule not been violated — Defense expert did
not improperly testify to matters outside the scope of his CME report
— Automobile accident — New trial — Trial court abused discretion by
granting plaintiff’s motion for new trial on grounds that defense violated
sequestration rule and that defense expert witness violated court order that he
not testify as to new opinions that were not included in his certified medical
examination report — Defense counsel’s conference with sequestered defense
expert regarding testimony of another expert was not ground for new trial where
sequestered witness’s testimony did not substantially differ from what it would
have been had the sequestration rule not been violated — Defense expert did
not improperly testify to matters outside the scope of his CME report
DISMEX FOOD, INC., a Florida corporation, and ELKIN O.
TELLEZ, Appellants, vs. BOBBY U. HARRIS, Appellee. 3rd District. Case No.
3D14-1461. L.T. Case No. 12-14697. Opinion filed June 1, 2016. An Appeal from
the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. Counsel:
Conroy Simberg, and Hinda Klein (Hollywood), for appellants. The Weinger
Appellate Firm, and Daniel S. Weinger (Plantation), for appellee.
TELLEZ, Appellants, vs. BOBBY U. HARRIS, Appellee. 3rd District. Case No.
3D14-1461. L.T. Case No. 12-14697. Opinion filed June 1, 2016. An Appeal from
the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. Counsel:
Conroy Simberg, and Hinda Klein (Hollywood), for appellants. The Weinger
Appellate Firm, and Daniel S. Weinger (Plantation), for appellee.
(Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.)
(ROTHENBERG, J.) Dismex Food, Inc. and Elkin O. Tellez
(collectively, “the defendants”) appeal the trial court’s final order granting
Bobby U. Harris’s (“Harris”) motion for a new trial, which was based on the
trial court’s finding that Harris was prejudiced and denied a fair trial by the
cumulative effect of defense counsel’s violation of the sequestration rule and
the defense witness’s violation of the trial court’s ruling confining his testimony
to the opinions in his report. Because this finding is not supported by the
evidence in the record, we reverse the order granting Harris a new trial.
(collectively, “the defendants”) appeal the trial court’s final order granting
Bobby U. Harris’s (“Harris”) motion for a new trial, which was based on the
trial court’s finding that Harris was prejudiced and denied a fair trial by the
cumulative effect of defense counsel’s violation of the sequestration rule and
the defense witness’s violation of the trial court’s ruling confining his testimony
to the opinions in his report. Because this finding is not supported by the
evidence in the record, we reverse the order granting Harris a new trial.
BACKGROUND
In February 2011, Harris was rear-ended by an
eighteen-wheeler truck operated by Elkin O. Tellez, an employee of Dismex Food,
Inc. Following the accident, Harris was treated by a chiropractor and two
doctors, Dr. Jillian Cameron and Dr. Martin Stauber. In March 2011, the
chiropractor referred Harris to a radiologist and obtained an MRI (“the March
MRI”), and in May 2011, Dr. Cameron, who was apparently unaware of the first
MRI, ordered another MRI (“the May MRI”). Neither the radiologist that Harris
was referred to by the chiropractor nor Dr. Cameron suggested that Harris
undergo surgery. In December 2011, Harris was evaluated by Dr. Stauber, who
performed a physical examination, reviewed the May MRI, and concluded that
Harris suffered from a lower back spinal ligament injury that would require
surgery. A few months after Dr. Stauber performed the surgery, Harris sued the
defendants for negligence. The defendants admitted fault, but contested
causation and damages.
eighteen-wheeler truck operated by Elkin O. Tellez, an employee of Dismex Food,
Inc. Following the accident, Harris was treated by a chiropractor and two
doctors, Dr. Jillian Cameron and Dr. Martin Stauber. In March 2011, the
chiropractor referred Harris to a radiologist and obtained an MRI (“the March
MRI”), and in May 2011, Dr. Cameron, who was apparently unaware of the first
MRI, ordered another MRI (“the May MRI”). Neither the radiologist that Harris
was referred to by the chiropractor nor Dr. Cameron suggested that Harris
undergo surgery. In December 2011, Harris was evaluated by Dr. Stauber, who
performed a physical examination, reviewed the May MRI, and concluded that
Harris suffered from a lower back spinal ligament injury that would require
surgery. A few months after Dr. Stauber performed the surgery, Harris sued the
defendants for negligence. The defendants admitted fault, but contested
causation and damages.
Dr. Elliot Lang, the defendant’s expert witness at trial,
completed a certified medical examination of Harris pursuant to rule 1.360 of
the Florida Rules of Civil Procedure. In his report (“CME report”), Dr. Lang
stated that, among other things, (1) the image of Harris’s spine in the March
MRI was “essentially normal”; (2) there was evidence of an injury in the May
MRI that was not present in the March MRI; (3) an intervening incident must
have caused the injuries to Harris’s spine that were only visible in the May
MRI; (4) Harris did not require surgery; and (5) Harris had a 0% chance of
permanent impairment as a result of the February 2011 accident.
completed a certified medical examination of Harris pursuant to rule 1.360 of
the Florida Rules of Civil Procedure. In his report (“CME report”), Dr. Lang
stated that, among other things, (1) the image of Harris’s spine in the March
MRI was “essentially normal”; (2) there was evidence of an injury in the May
MRI that was not present in the March MRI; (3) an intervening incident must
have caused the injuries to Harris’s spine that were only visible in the May
MRI; (4) Harris did not require surgery; and (5) Harris had a 0% chance of
permanent impairment as a result of the February 2011 accident.
Prior to opening statements, the trial court considered
Harris’s motion in limine and ruled that Dr. Lang was not permitted to testify
as to new opinions that were not included in his CME report. Thereafter, Harris
invoked the sequestration rule set forth in section 90.616 of the Florida
Statutes. The trial court told the parties that they would be responsible for
their own witnesses.
Harris’s motion in limine and ruled that Dr. Lang was not permitted to testify
as to new opinions that were not included in his CME report. Thereafter, Harris
invoked the sequestration rule set forth in section 90.616 of the Florida
Statutes. The trial court told the parties that they would be responsible for
their own witnesses.
At trial, only Harris, Dr. Stauber, and Dr. Lang testified.
Dr. Stauber testified, in part, that he would not have relied on the March MRI
due to its poor diagnostic quality. This opinion was presented for the first
time when Dr. Stauber testified at trial. Following Dr. Stauber’s testimony,
defense counsel conferenced with Dr. Lang about the testimony he would give the
next day. While the record does not clearly reflect what was said in this
conference, there is record evidence supporting the finding that Dr. Lang and
defense counsel discussed Dr. Stauber’s testimony with regard to the quality of
the March MRI. The following day, Dr. Lang testified, consistent with his CME
report, that: (1) the March MRI was of diagnostic quality; (2) he did not
believe that the March MRI depicted an acute injury; and (3) because the May
MRI showed evidence of bruising that was not present in the March MRI, there
must have been an intervening injury between March and May.
Dr. Stauber testified, in part, that he would not have relied on the March MRI
due to its poor diagnostic quality. This opinion was presented for the first
time when Dr. Stauber testified at trial. Following Dr. Stauber’s testimony,
defense counsel conferenced with Dr. Lang about the testimony he would give the
next day. While the record does not clearly reflect what was said in this
conference, there is record evidence supporting the finding that Dr. Lang and
defense counsel discussed Dr. Stauber’s testimony with regard to the quality of
the March MRI. The following day, Dr. Lang testified, consistent with his CME
report, that: (1) the March MRI was of diagnostic quality; (2) he did not
believe that the March MRI depicted an acute injury; and (3) because the May
MRI showed evidence of bruising that was not present in the March MRI, there
must have been an intervening injury between March and May.
The jury returned a verdict awarding Harris $48,428.00 in
past and future medical expenses but found that Harris did not sustain a
permanent injury. Harris moved for a new trial, arguing that defense counsel’s
conference with Dr. Lang regarding Dr. Stauber’s testimony amounted to a
violation of the sequestration rule, and that Dr. Lang’s testimony regarding
the diagnostic quality of the March MRI amounted to an opinion not contained in
his CME report, in violation of the trial court’s ruling on Harris’s motion in
limine.1
past and future medical expenses but found that Harris did not sustain a
permanent injury. Harris moved for a new trial, arguing that defense counsel’s
conference with Dr. Lang regarding Dr. Stauber’s testimony amounted to a
violation of the sequestration rule, and that Dr. Lang’s testimony regarding
the diagnostic quality of the March MRI amounted to an opinion not contained in
his CME report, in violation of the trial court’s ruling on Harris’s motion in
limine.1
At the hearing on Harris’s motion for a new trial, defense
counsel argued that Harris was not prejudiced by the alleged violations of the
sequestration rule and the trial court’s ruling on Harris’s motion in limine.
However, the trial court responded by stating that, “. . . in terms of what’s
the prejudice, I’m going to say what’s the prejudice of retrying this case?”
Throughout the hearing, the trial court never identified what prejudice Harris
suffered. After the hearing, the trial court entered an order granting Harris a
new trial without specifying the grounds for its decision, and the defendants
appealed. It is only after we relinquished jurisdiction pursuant to Florida
Rule of Civil Procedure 1.530(f)2 that the trial court entered an
amended order finding that Harris was prejudiced and denied a fair trial due to
the cumulative effect of (1) defense counsel’s violation of the sequestration
rule, (2) Dr. Lang’s subsequent manipulation of his testimony to counter that
of Dr. Stauber, and (3) Dr. Lang’s testimony as to matters that were outside of
the scope of his CME report, in violation of the trial court’s ruling on
Harris’s motion in limine.
counsel argued that Harris was not prejudiced by the alleged violations of the
sequestration rule and the trial court’s ruling on Harris’s motion in limine.
However, the trial court responded by stating that, “. . . in terms of what’s
the prejudice, I’m going to say what’s the prejudice of retrying this case?”
Throughout the hearing, the trial court never identified what prejudice Harris
suffered. After the hearing, the trial court entered an order granting Harris a
new trial without specifying the grounds for its decision, and the defendants
appealed. It is only after we relinquished jurisdiction pursuant to Florida
Rule of Civil Procedure 1.530(f)2 that the trial court entered an
amended order finding that Harris was prejudiced and denied a fair trial due to
the cumulative effect of (1) defense counsel’s violation of the sequestration
rule, (2) Dr. Lang’s subsequent manipulation of his testimony to counter that
of Dr. Stauber, and (3) Dr. Lang’s testimony as to matters that were outside of
the scope of his CME report, in violation of the trial court’s ruling on
Harris’s motion in limine.
ANALYSIS
An appellate court must review a trial court’s entry of an
order granting a new trial for an abuse of discretion. Allstate Ins. Co. v.
Manasse, 707 So. 2d 1110, 1111 (Fla. 1998). However, the trial court will
abuse its discretion if it enters an order granting a new trial based on
findings that are not supported by the record. Moore v. Gillett, 96 So.
3d 933, 938 (Fla. 2d DCA 2012) (stating that “the grant of a new trial is not
an appropriate sanction for a dereliction by counsel that could not have
affected the verdict”); Harris v. Grunow, 71 So. 3d 186, 192 (Fla. 3d
DCA 2011).
order granting a new trial for an abuse of discretion. Allstate Ins. Co. v.
Manasse, 707 So. 2d 1110, 1111 (Fla. 1998). However, the trial court will
abuse its discretion if it enters an order granting a new trial based on
findings that are not supported by the record. Moore v. Gillett, 96 So.
3d 933, 938 (Fla. 2d DCA 2012) (stating that “the grant of a new trial is not
an appropriate sanction for a dereliction by counsel that could not have
affected the verdict”); Harris v. Grunow, 71 So. 3d 186, 192 (Fla. 3d
DCA 2011).
As stated by the Florida Supreme Court, “the rule of
sequestration is intended to prevent a witness’s testimony from being
influenced by the testimony of other witnesses in the proceeding.” Wright v.
State, 473 So. 2d 1277, 1280 (Fla. 1985). Thus, if the sequestered
witness’s testimony did not substantially differ from what it would have been
had the sequestration rule not been violated, then any claim that the violation
of the sequestration rule warrants a new trial or a mistrial is meritless. See
Mendoza v. State, 964 So. 2d 121, 133 (Fla. 2007); see also Steinhorst
v. State, 412 So. 2d 332, 336 (Fla. 1982) (holding that the test to be
applied when determining whether a witness may be excluded on the basis of a
sequestration rule violation is the extent to which the testimony of the
witness “differed from what it would have been had he not heard testimony in
violation of the rule”).
sequestration is intended to prevent a witness’s testimony from being
influenced by the testimony of other witnesses in the proceeding.” Wright v.
State, 473 So. 2d 1277, 1280 (Fla. 1985). Thus, if the sequestered
witness’s testimony did not substantially differ from what it would have been
had the sequestration rule not been violated, then any claim that the violation
of the sequestration rule warrants a new trial or a mistrial is meritless. See
Mendoza v. State, 964 So. 2d 121, 133 (Fla. 2007); see also Steinhorst
v. State, 412 So. 2d 332, 336 (Fla. 1982) (holding that the test to be
applied when determining whether a witness may be excluded on the basis of a
sequestration rule violation is the extent to which the testimony of the
witness “differed from what it would have been had he not heard testimony in
violation of the rule”).
In the instant case, although the record does not clearly
demonstrate a violation of the sequestration rule, given our deferential
standard of review, we accept the trial court’s finding in its amended order
granting a new trial that defense counsel violated the rule when he spoke with
Dr. Lang about Dr. Stauber’s testimony. However, we reject the “harsh result”
that a technical violation of the sequestration rule requires the automatic
exclusion of a witness, let alone a new trial. See Baker v. Air-Kaman
of Jacksonville, Inc., 510 So. 2d 1222, 1223 (Fla. 1st DCA 1987). We
therefore examine the record to determine whether Dr. Lang’s testimony
substantially differed from what it would have been without the violation of
the sequestration rule.
demonstrate a violation of the sequestration rule, given our deferential
standard of review, we accept the trial court’s finding in its amended order
granting a new trial that defense counsel violated the rule when he spoke with
Dr. Lang about Dr. Stauber’s testimony. However, we reject the “harsh result”
that a technical violation of the sequestration rule requires the automatic
exclusion of a witness, let alone a new trial. See Baker v. Air-Kaman
of Jacksonville, Inc., 510 So. 2d 1222, 1223 (Fla. 1st DCA 1987). We
therefore examine the record to determine whether Dr. Lang’s testimony
substantially differed from what it would have been without the violation of
the sequestration rule.
The trial court identified two parts of Dr. Lang’s testimony
that allegedly differed as a result of the violation of the sequestration rule:
Dr. Lang’s testimony (1) as to the diagnostic quality of the March MRI, and (2)
that the MRIs did not show evidence of an acute injury. After reviewing the
record and Dr. Lang’s CME report, we conclude that in neither instance did Dr.
Lang’s testimony substantially differ from what it would have been had he not
been told that Dr. Stauber had testified that the March MRI was of insufficient
diagnostic quality.
that allegedly differed as a result of the violation of the sequestration rule:
Dr. Lang’s testimony (1) as to the diagnostic quality of the March MRI, and (2)
that the MRIs did not show evidence of an acute injury. After reviewing the
record and Dr. Lang’s CME report, we conclude that in neither instance did Dr.
Lang’s testimony substantially differ from what it would have been had he not
been told that Dr. Stauber had testified that the March MRI was of insufficient
diagnostic quality.
First, because Dr. Lang’s CME report contains several
diagnostic findings based on his review and the radiologist’s review of the
March MRI, it cannot be reasonably argued that Dr. Lang did not believe that
the March MRI was of sufficient diagnostic quality. In his report, Dr. Lang
detailed his records review, including his review of Dr. Keith Mullenger’s
report regarding the March MRI (Dr. Mullenger is the radiologist who read the
March MRI), and the records of Harris’s treating physicians Dr. Cameron and Dr.
Stauber. Specifically, Dr. Lang reported that the radiologist found that the
March MRI of “[t]he cervical spine showed some decreased lordosis[,] . . . the
lumbosacral showed disc bulges with mild stenosis at L4-5 and L-5-S1 bulge . .
. [with] no evidence of cervical spinal canal or neural foraminal stenosis and
no fracture or disc herniation were seen in the cervical spine with reversal of
the cervical lordosis consistent with spasm.”
diagnostic findings based on his review and the radiologist’s review of the
March MRI, it cannot be reasonably argued that Dr. Lang did not believe that
the March MRI was of sufficient diagnostic quality. In his report, Dr. Lang
detailed his records review, including his review of Dr. Keith Mullenger’s
report regarding the March MRI (Dr. Mullenger is the radiologist who read the
March MRI), and the records of Harris’s treating physicians Dr. Cameron and Dr.
Stauber. Specifically, Dr. Lang reported that the radiologist found that the
March MRI of “[t]he cervical spine showed some decreased lordosis[,] . . . the
lumbosacral showed disc bulges with mild stenosis at L4-5 and L-5-S1 bulge . .
. [with] no evidence of cervical spinal canal or neural foraminal stenosis and
no fracture or disc herniation were seen in the cervical spine with reversal of
the cervical lordosis consistent with spasm.”
With respect to his review of Harris’s treating physicians’
records, Dr. Lang noted that Harris withheld and did not provide these doctors
with the March MRI, which Dr. Lang stated in his report showed that
“[Harris’s] lumbar spine [was] essentially normal.” (emphasis added). Dr.
Lang also specifically found in his report that as a result of Harris’s failure
to inform his doctors of the March MRI, Dr. Cameron ordered the additional and unnecessary
May MRI.
records, Dr. Lang noted that Harris withheld and did not provide these doctors
with the March MRI, which Dr. Lang stated in his report showed that
“[Harris’s] lumbar spine [was] essentially normal.” (emphasis added). Dr.
Lang also specifically found in his report that as a result of Harris’s failure
to inform his doctors of the March MRI, Dr. Cameron ordered the additional and unnecessary
May MRI.
Lastly, Dr. Lang’s report included his own review of the
March and May MRIs. Dr. Lang concluded that the March MRI showed anterior C5
osteophytes and posterior osteophytes with decreased lordosis; minimal bulges
at L4-5 and L5-S1 with slightly decreased lordosis; no posterior ligament abnormalities;
and the disc spaces otherwise appeared to be normal. As to the edema noted at
the posterior right iliac crest region and near the sacroiliac joints noted on
the May MRI, Dr. Lang stated that the March MRI “did not show this” and thus he
opined that because Harris had continued to do heavy duty work all throughout
the course of his treatment, he may have injured himself after the March MRI
had been performed.
March and May MRIs. Dr. Lang concluded that the March MRI showed anterior C5
osteophytes and posterior osteophytes with decreased lordosis; minimal bulges
at L4-5 and L5-S1 with slightly decreased lordosis; no posterior ligament abnormalities;
and the disc spaces otherwise appeared to be normal. As to the edema noted at
the posterior right iliac crest region and near the sacroiliac joints noted on
the May MRI, Dr. Lang stated that the March MRI “did not show this” and thus he
opined that because Harris had continued to do heavy duty work all throughout
the course of his treatment, he may have injured himself after the March MRI
had been performed.
As these findings regarding the March MRI reflect, Dr. Lang
and the radiologist who read the March MRI, certainly believed the March MRI
was of sufficient quality to perform their analysis and to reach their detailed
conclusions. Thus, inherent in Dr. Lang’s report was his opinion that the March
MRI was of sufficient diagnostic quality, and it defies logic and common sense
to suggest that Dr. Lang’s testimony at trial would not have included his
opinion about the quality of the films he reviewed.
and the radiologist who read the March MRI, certainly believed the March MRI
was of sufficient quality to perform their analysis and to reach their detailed
conclusions. Thus, inherent in Dr. Lang’s report was his opinion that the March
MRI was of sufficient diagnostic quality, and it defies logic and common sense
to suggest that Dr. Lang’s testimony at trial would not have included his
opinion about the quality of the films he reviewed.
We therefore conclude that Dr. Lang’s testimony regarding
the diagnostic quality of the March MRI cannot reasonably be considered a new
opinion in violation of the trial court’s ruling on Harris’s motion in limine
or that Dr. Lang’s testimony substantially differed from what it would have
been had he not been informed that Dr. Stauber had testified that the March
MRI’s quality rendered it of no diagnostic value. We also reject the trial
court’s finding that Dr. Lang’s testimony that the MRIs did not show evidence
of an acute injury was a new opinion or an opinion that substantially differed
from what Dr. Lang would have testified to but for the alleged violation of the
sequestration rule.
the diagnostic quality of the March MRI cannot reasonably be considered a new
opinion in violation of the trial court’s ruling on Harris’s motion in limine
or that Dr. Lang’s testimony substantially differed from what it would have
been had he not been informed that Dr. Stauber had testified that the March
MRI’s quality rendered it of no diagnostic value. We also reject the trial
court’s finding that Dr. Lang’s testimony that the MRIs did not show evidence
of an acute injury was a new opinion or an opinion that substantially differed
from what Dr. Lang would have testified to but for the alleged violation of the
sequestration rule.
CONCLUSION
Because the record reflects Dr. Lang’s testimony was
consistent with his CME report; his testimony did not substantially differ from
what it would have been without the alleged violation of the sequestration
rule; and Dr. Lang did not testify to matters outside of the scope of his CME
report; we conclude that the trial court abused its discretion by granting
Harris a new trial. We therefore reverse the trial court’s amended order
granting a new trial and remand for the entry of a final judgment in accordance
with the jury verdict.3
consistent with his CME report; his testimony did not substantially differ from
what it would have been without the alleged violation of the sequestration
rule; and Dr. Lang did not testify to matters outside of the scope of his CME
report; we conclude that the trial court abused its discretion by granting
Harris a new trial. We therefore reverse the trial court’s amended order
granting a new trial and remand for the entry of a final judgment in accordance
with the jury verdict.3
Reversed and remanded.
__________________
1Harris also argued at the hearing on
Harris’s motion for a new trial and now on appeal that Dr. Lang’s testimony
regarding normal variations in the whitish areas in the MRIs constituted a new
opinion. However, the trial court expressly rejected this argument at the
hearing for a new trial. We agree with the trial court and decline to discuss
that portion of Dr. Lang’s testimony further.
Harris’s motion for a new trial and now on appeal that Dr. Lang’s testimony
regarding normal variations in the whitish areas in the MRIs constituted a new
opinion. However, the trial court expressly rejected this argument at the
hearing for a new trial. We agree with the trial court and decline to discuss
that portion of Dr. Lang’s testimony further.
2“All orders granting a new trial
shall specify the grounds therefor.” Fla. R. Civ. P. 1.530(f).
shall specify the grounds therefor.” Fla. R. Civ. P. 1.530(f).
3We reject the trial court’s finding
in its order granting a new trial that the jury verdict of $48,428 was against
the manifest weight of the evidence and was itself evidence that Harris was
prejudiced and denied a fair trial because “a trial judge may not substitute
its judgment for that of the jury on the matter of damages . . . .” Arab
Termite & Pest Control of Fla., Inc. v. Jenkins, 409 So. 2d 1039, 1041
(Fla. 1982); see also Skopit v. Neisen, 616 So. 2d 505, 505 (Fla.
3d DCA 1993).
in its order granting a new trial that the jury verdict of $48,428 was against
the manifest weight of the evidence and was itself evidence that Harris was
prejudiced and denied a fair trial because “a trial judge may not substitute
its judgment for that of the jury on the matter of damages . . . .” Arab
Termite & Pest Control of Fla., Inc. v. Jenkins, 409 So. 2d 1039, 1041
(Fla. 1982); see also Skopit v. Neisen, 616 So. 2d 505, 505 (Fla.
3d DCA 1993).