39 Fla. L. Weekly D1374a
Torts — Automobile accident — Evidence — Expert — Claim
that trial court erred in admitting a physician’s testimony that surgery
performed on plaintiff was unnecessary was not properly preserved for appeal by
objection — Objection was required, although plaintiff had ostensibly obtained
ruling on motion in limine from predecessor judge excluding such testimony,
where successor judge modified that ruling to require that parties make specific
objections because of successor judge’s unfamiliarity with case, and counsel
acknowledged this modification — Even assuming issue were preserved, expert’s
testimony, which went to causal link between plaintiff’s surgeries and contested
accident and not to theory that surgeries worsened plaintiff’s condition, was
not within scope of motion in limine and was not inadmissible — No abuse of
discretion in denying motion for new trial on ground that verdict finding no
negligence on part of defendant was legal cause of loss, injury or damage to
plaintiff was contrary to manifest weight of evidence
that trial court erred in admitting a physician’s testimony that surgery
performed on plaintiff was unnecessary was not properly preserved for appeal by
objection — Objection was required, although plaintiff had ostensibly obtained
ruling on motion in limine from predecessor judge excluding such testimony,
where successor judge modified that ruling to require that parties make specific
objections because of successor judge’s unfamiliarity with case, and counsel
acknowledged this modification — Even assuming issue were preserved, expert’s
testimony, which went to causal link between plaintiff’s surgeries and contested
accident and not to theory that surgeries worsened plaintiff’s condition, was
not within scope of motion in limine and was not inadmissible — No abuse of
discretion in denying motion for new trial on ground that verdict finding no
negligence on part of defendant was legal cause of loss, injury or damage to
plaintiff was contrary to manifest weight of evidence
KEVAN BOYLES, ESQUIRE, as limited guardian of the property of ROMAN
VONKOMARNICKI, III, Appellant, v. A & G CONCRETE POOLS, INC., and JAMES E.
PREECE, Appellees. 4th District. Case No. 4D12-3334. July 2, 2014. Appeal from
the Circuit Court for the Nineteenth Judicial Circuit, Indian River County;
Cynthia L. Cox, Judge; L.T. Case No. 312009CA 011849XXXX. Counsel: Bard D.
Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West
Palm Beach; Steven Mitchel and Christopher I. Pezon of Steinger, Iscoe, Greene
& McAfee, Fort Lauderdale, for appellant. John A. Wilkerson of John A.
Wilkerson, P.A., Daytona Beach, for appellees.
VONKOMARNICKI, III, Appellant, v. A & G CONCRETE POOLS, INC., and JAMES E.
PREECE, Appellees. 4th District. Case No. 4D12-3334. July 2, 2014. Appeal from
the Circuit Court for the Nineteenth Judicial Circuit, Indian River County;
Cynthia L. Cox, Judge; L.T. Case No. 312009CA 011849XXXX. Counsel: Bard D.
Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West
Palm Beach; Steven Mitchel and Christopher I. Pezon of Steinger, Iscoe, Greene
& McAfee, Fort Lauderdale, for appellant. John A. Wilkerson of John A.
Wilkerson, P.A., Daytona Beach, for appellees.
(Warner, J.) Appellant challenges a final judgment for the appellee in his
personal injury action. He claims that the court erred when it admitted a
physician’s testimony that the surgery performed on appellant was unnecessary.
He also argues that the court erred in denying his motion for new trial, because
liability was admitted and appellant had suffered at least some injury as a
result of the accident giving rise to his claim. As to the admission of
evidence, we hold that the issue was not properly preserved. As to the denial of
the motion for new trial, the evidence on liability and damages was not
uncontradicted, and the expert’s opinions on the plaintiff’s injuries were
discredited by plaintiff’s own lack of credibility. Therefore, the trial court
did not abuse its discretion in denying the motion for new trial.
personal injury action. He claims that the court erred when it admitted a
physician’s testimony that the surgery performed on appellant was unnecessary.
He also argues that the court erred in denying his motion for new trial, because
liability was admitted and appellant had suffered at least some injury as a
result of the accident giving rise to his claim. As to the admission of
evidence, we hold that the issue was not properly preserved. As to the denial of
the motion for new trial, the evidence on liability and damages was not
uncontradicted, and the expert’s opinions on the plaintiff’s injuries were
discredited by plaintiff’s own lack of credibility. Therefore, the trial court
did not abuse its discretion in denying the motion for new trial.
In February 2008, plaintiff was the front seat passenger in a utility truck
driven by plaintiff’s co-worker, Mr. Poole, when it was rear-ended by a truck
owned by A & G Concrete Pools and driven by one of its employees, Mr.
Preece. The accident occurred after the utility truck was stopped for a red
light with the A & G truck stopped behind it. When the light turned green,
both trucks began to drive forward, and Preece merged left because the lane he
was in was ending. A vehicle in front of the utility truck came to a sudden stop
after crossing the intersection, forcing Poole to stop. Preece was traveling at
30 mph and was looking to merge into traffic. When he looked forward, the
utility truck was stopped, and he realized he would not be able to stop in time.
He hit his brakes and swerved, but nonetheless collided with the rear of the
utility truck. Preece testified that he never saw brake lights or reflectors on
the truck prior to impact. Photographs of the utility truck showed that the
taillights were covered in mud.
driven by plaintiff’s co-worker, Mr. Poole, when it was rear-ended by a truck
owned by A & G Concrete Pools and driven by one of its employees, Mr.
Preece. The accident occurred after the utility truck was stopped for a red
light with the A & G truck stopped behind it. When the light turned green,
both trucks began to drive forward, and Preece merged left because the lane he
was in was ending. A vehicle in front of the utility truck came to a sudden stop
after crossing the intersection, forcing Poole to stop. Preece was traveling at
30 mph and was looking to merge into traffic. When he looked forward, the
utility truck was stopped, and he realized he would not be able to stop in time.
He hit his brakes and swerved, but nonetheless collided with the rear of the
utility truck. Preece testified that he never saw brake lights or reflectors on
the truck prior to impact. Photographs of the utility truck showed that the
taillights were covered in mud.
At the time of the collision, plaintiff testified that his body was thrust
forward, and that he hit his head on the dashboard. He complained of pain at the
accident scene. A paramedic, who arrived at the scene and evaluated the
plaintiff, testified that plaintiff told him that he had been involved in an
automobile accident in 2001 and had suffered four herniated discs as a result.
Plaintiff was transported to the emergency room but was released. Shortly
thereafter, he was referred by his attorney to a chiropractor for treatment, and
he told the doctor that he had not previously experienced problems with his neck
or back. He continued to see the chiropractor for about four months.
forward, and that he hit his head on the dashboard. He complained of pain at the
accident scene. A paramedic, who arrived at the scene and evaluated the
plaintiff, testified that plaintiff told him that he had been involved in an
automobile accident in 2001 and had suffered four herniated discs as a result.
Plaintiff was transported to the emergency room but was released. Shortly
thereafter, he was referred by his attorney to a chiropractor for treatment, and
he told the doctor that he had not previously experienced problems with his neck
or back. He continued to see the chiropractor for about four months.
When he did not improve, he was referred to Dr. Katzman, an orthopedic
surgeon. He complained of neck and back pain but told the doctor that he had
never had any injuries to his neck. When Dr. Katzman later discovered that
plaintiff had encountered back problems in 2001, plaintiff maintained that the
problems had been resolved, and that for at least two years prior to the 2008
accident he had not had any problems with or treatment for his back or neck.
surgeon. He complained of neck and back pain but told the doctor that he had
never had any injuries to his neck. When Dr. Katzman later discovered that
plaintiff had encountered back problems in 2001, plaintiff maintained that the
problems had been resolved, and that for at least two years prior to the 2008
accident he had not had any problems with or treatment for his back or neck.
After therapy and pain shots failed to relieve plaintiff’s reported symptoms,
Dr. Katzman performed a lumbar procedure in November of 2008 and a cervical
procedure in January 2009, which the doctor testified were related to injuries
sustained in the 2008 accident. The lumbar procedure was successful, but the
cervical operation on his neck was not.
Dr. Katzman performed a lumbar procedure in November of 2008 and a cervical
procedure in January 2009, which the doctor testified were related to injuries
sustained in the 2008 accident. The lumbar procedure was successful, but the
cervical operation on his neck was not.
Plaintiff then went to see Dr. Dare, a neurosurgeon. During the initial
evaluation, plaintiff did not inform Dr. Dare about the 2001 car accidents or
any other treatments for back pain that he had received over the years. When Dr.
Dare later received medical records from plaintiff’s attorney revealing a prior
medical and injury history, he questioned plaintiff, who responded that he had
returned to normal by the time of the 2008 accident. Dr. Dare testified: “What
he told me at the time was that he was not suffering from neck pain or seeking
active treatment for neck and/or back pain at the time of his accident.” In
reviewing plaintiff’s subjective complaints as well as the MRI tests taken after
the accident, Dr. Dare concluded that the 2008 accident caused a worsening of
his back weakness, which had necessitated surgery. Dr. Dare also concluded that
his neck condition was caused solely by the 2008 accident. Dr. Dare performed
additional surgery on the plaintiff, including both neck and back surgery. When
Dr. Dare examined plaintiff for the last time, nearly three years after the
surgery, his condition had improved.
evaluation, plaintiff did not inform Dr. Dare about the 2001 car accidents or
any other treatments for back pain that he had received over the years. When Dr.
Dare later received medical records from plaintiff’s attorney revealing a prior
medical and injury history, he questioned plaintiff, who responded that he had
returned to normal by the time of the 2008 accident. Dr. Dare testified: “What
he told me at the time was that he was not suffering from neck pain or seeking
active treatment for neck and/or back pain at the time of his accident.” In
reviewing plaintiff’s subjective complaints as well as the MRI tests taken after
the accident, Dr. Dare concluded that the 2008 accident caused a worsening of
his back weakness, which had necessitated surgery. Dr. Dare also concluded that
his neck condition was caused solely by the 2008 accident. Dr. Dare performed
additional surgery on the plaintiff, including both neck and back surgery. When
Dr. Dare examined plaintiff for the last time, nearly three years after the
surgery, his condition had improved.
Contrary to his representations to Drs. Katzman and Dare, the plaintiff had
been injured in two accidents in 2001 and had continued to encounter back pain
and neck pain as a result. Following the first motor vehicle crash in 2001, he
was treated by an urgent care clinic physician for low back pain. To this
doctor, plaintiff complained of significant pain in the neck as well as the low
back. The doctor prescribed Lorcet and Oxycontin, an addictive narcotic pain
medication, as well as giving him trigger point injections. As plaintiff
continued to complain of uncontrolled pain, the doctor increased the Oxycontin
dosage. The doctor ordered an MRI of his back which showed a herniated disc in
the lumbar region of his lower back. Although the neck MRI did not show a
herniation, it was taken prior to the second accident in 2001.
been injured in two accidents in 2001 and had continued to encounter back pain
and neck pain as a result. Following the first motor vehicle crash in 2001, he
was treated by an urgent care clinic physician for low back pain. To this
doctor, plaintiff complained of significant pain in the neck as well as the low
back. The doctor prescribed Lorcet and Oxycontin, an addictive narcotic pain
medication, as well as giving him trigger point injections. As plaintiff
continued to complain of uncontrolled pain, the doctor increased the Oxycontin
dosage. The doctor ordered an MRI of his back which showed a herniated disc in
the lumbar region of his lower back. Although the neck MRI did not show a
herniation, it was taken prior to the second accident in 2001.
A variety of other medical records showed the plaintiff made multiple
complaints of pain to other medical providers. In 2002, plaintiff reported neck
pain and low back pain. He saw a chiropractor from June through November 2005 to
whom he complained of severe low back pain. He saw two other doctors in 2006, to
whom he reported back and neck problems since his 2001 accidents. In December
2006, a nurse’s note on a medical record stated that plaintiff reported that
prolonged standing made his back hurt.
complaints of pain to other medical providers. In 2002, plaintiff reported neck
pain and low back pain. He saw a chiropractor from June through November 2005 to
whom he complained of severe low back pain. He saw two other doctors in 2006, to
whom he reported back and neck problems since his 2001 accidents. In December
2006, a nurse’s note on a medical record stated that plaintiff reported that
prolonged standing made his back hurt.
His co-workers also reported that he complained of back pain from the prior
accident. One of them testified that he was taking pills three times a day for
back pain before the accident in this case.
accident. One of them testified that he was taking pills three times a day for
back pain before the accident in this case.
Dr. Schumacher performed a compulsory medical examination (“CME”) of the
plaintiff at the defendants’ request. Plaintiff’s physical examination showed
normal neurological findings and no signs of spinal cord compression, muscle
atrophy, or loss of any objective neurologic function. He reviewed the cervical
MRI films taken within a month of the 2008 accident and prior to surgery. He
opined that the MRI revealed mild degenerative changes but no evidence of trauma
or disruption of the discs. He also did not see any evidence of trauma on the
lumbar MRI. When asked whether or not the plaintiff suffered a soft tissue
injury in the accident of 2008, he responded: “I would say yes, but that comes
down to subjectivity and the word of the person that gives it to you.”
plaintiff at the defendants’ request. Plaintiff’s physical examination showed
normal neurological findings and no signs of spinal cord compression, muscle
atrophy, or loss of any objective neurologic function. He reviewed the cervical
MRI films taken within a month of the 2008 accident and prior to surgery. He
opined that the MRI revealed mild degenerative changes but no evidence of trauma
or disruption of the discs. He also did not see any evidence of trauma on the
lumbar MRI. When asked whether or not the plaintiff suffered a soft tissue
injury in the accident of 2008, he responded: “I would say yes, but that comes
down to subjectivity and the word of the person that gives it to you.”
The court denied a motion for directed verdict on liability. During closing
argument, defense counsel initially conceded that Preece was negligent but then
backtracked later in his argument, concluding that while Preece had stated that
he felt responsible, he also could not have seen the taillights. Defense counsel
asked the jury to be the judge of how much Poole, as driver of the utility
truck, contributed to the accident, since the lights of the truck were covered
in mud and Poole slammed on his brakes to come to a sudden stop.
argument, defense counsel initially conceded that Preece was negligent but then
backtracked later in his argument, concluding that while Preece had stated that
he felt responsible, he also could not have seen the taillights. Defense counsel
asked the jury to be the judge of how much Poole, as driver of the utility
truck, contributed to the accident, since the lights of the truck were covered
in mud and Poole slammed on his brakes to come to a sudden stop.
After closing argument, the jury was instructed on both liability and
damages. They returned a verdict in which they checked “no” to the question “Was
there negligence on the part of [Preece] which was a legal cause of loss, injury
or damage to [Plaintiff]?” Plaintiff moved for a new trial, claiming that
defendants had conceded negligence and all experts agreed that plaintiff had
suffered at least some injury from the accident. The trial court denied the
motion, prompting this appeal.
damages. They returned a verdict in which they checked “no” to the question “Was
there negligence on the part of [Preece] which was a legal cause of loss, injury
or damage to [Plaintiff]?” Plaintiff moved for a new trial, claiming that
defendants had conceded negligence and all experts agreed that plaintiff had
suffered at least some injury from the accident. The trial court denied the
motion, prompting this appeal.
I. Admission of Expert Opinion that
Surgery was not Necessary
Plaintiff claims that the trial court erred in admitting defense expert Dr.
Schumacher’s testimony that the surgeries performed on plaintiff were
unnecessary, because it had previously granted a motion in limine precluding CME
doctors from testifying that surgery was not medically necessary. During his
direct testimony, Dr. Schumacher was asked:
Schumacher’s testimony that the surgeries performed on plaintiff were
unnecessary, because it had previously granted a motion in limine precluding CME
doctors from testifying that surgery was not medically necessary. During his
direct testimony, Dr. Schumacher was asked:
Q: . . . Based on your examination, your education, experience and
training, based on your review of the medical records, do you have an opinion
within a reasonable degree of medical probability as to whether this auto
accident in 2-5-08 caused or necessitated the neck and back surgeries in 2008
and 2009?
A: Well, all I can say is in my practice, I wouldn’t prescribe
surgery in this case for someone with back and neck pain and MRI’s that don’t
show anything on there that is pushing on something, or show on examination an
objective neurological deficit.
Plaintiff did not object to this testimony. While not raising this in his
motion for new trial, he now claims on appeal that this testimony violated an
order on a motion in limine. We conclude that the issue was not preserved.
motion for new trial, he now claims on appeal that this testimony violated an
order on a motion in limine. We conclude that the issue was not preserved.
Nine months after suit was filed, plaintiff filed a twenty-two page motion in
limine, which appears to be a boilerplate, shotgun approach to various
evidentiary issues. The motion sets forth forty-five different categories of
evidence or testimony which the plaintiff claimed should not be admitted. Many
of the categories had nothing to do with the facts of this case. The trial judge
assigned to the case at that time entered an order which granted, denied, or
delayed ruling on each paragraph according to the listed number assigned to each
paragraph. The order (which we have shortened) appeared as follows:
limine, which appears to be a boilerplate, shotgun approach to various
evidentiary issues. The motion sets forth forty-five different categories of
evidence or testimony which the plaintiff claimed should not be admitted. Many
of the categories had nothing to do with the facts of this case. The trial judge
assigned to the case at that time entered an order which granted, denied, or
delayed ruling on each paragraph according to the listed number assigned to each
paragraph. The order (which we have shortened) appeared as follows:
ORDERED AND ADJUDGED as follows:
The Plaintiff’s Motion in Limine is hereby Ruled upon as
follows:
1. Not ruled upon;
2. Before offered, there must a proffer outside the presence of the
jury;
. . . .
27. Granted;
28. Agreed upon by counsel;
29. Agreed upon by counsel;
. . . .
36. Granted[.]
Another circuit judge took over the division prior to trial a year and a half
later. At the beginning of the trial, the judge considered a motion in limine
filed by the defendant. As that motion was being discussed, the plaintiff
objected that Dr. Schumacher may have considered additional materials sent to
him by defense counsel, which plaintiff contended violated the order on the
motion in limine entered a year and a half earlier. The trial judge then
reviewed the order granting the motion and expressed her displeasure with the
order:
later. At the beginning of the trial, the judge considered a motion in limine
filed by the defendant. As that motion was being discussed, the plaintiff
objected that Dr. Schumacher may have considered additional materials sent to
him by defense counsel, which plaintiff contended violated the order on the
motion in limine entered a year and a half earlier. The trial judge then
reviewed the order granting the motion and expressed her displeasure with the
order:
THE COURT: . . . . [T]here is a bunch of them here that says
[“]denied without prejudice to making contemporaneous objections. Before
offered, there must be a proffer outside the presence of jury.[”] I have no
idea.
That’s why when I am presiding over a trial, I want the motion in
limine like the week before, so I remember. I would never do a motion like this
two years before. And then have another judge rely on it. I mean, I have no
idea.
So hopefully, you all know and you are going to have to raise
your objections because I don’t know what has been done.
(emphasis supplied). The plaintiff’s attorney agreed, noting that he was not
even involved in the case when the order was entered.
even involved in the case when the order was entered.
The trial court thus changed the ruling and required the parties to raise
objections to any matters covered by the motion in limine. “[A] trial court has
the inherent authority to reconsider a non-final order and modify or retract
it.” Precision Tune Auto Care, Inc. v. Radcliff, 731 So. 2d 744, 745
(Fla. 4th DCA 1999). We think the trial court sensibly modified the prior ruling
to require objections, and counsel acknowledged that modification.
objections to any matters covered by the motion in limine. “[A] trial court has
the inherent authority to reconsider a non-final order and modify or retract
it.” Precision Tune Auto Care, Inc. v. Radcliff, 731 So. 2d 744, 745
(Fla. 4th DCA 1999). We think the trial court sensibly modified the prior ruling
to require objections, and counsel acknowledged that modification.
Motions in limine can serve an important function in streamlining a trial.
The excessive use of them, however, can clog the docket and become a trap.
Boilerplate motions in limine filed early in a case have dramatically increased
in the years since the amendment of section 90.104, Florida Statutes in 2003.
This amendment modified the rule requiring a contemporaneous objection to
preserve an objection to the admission of evidence on appeal. The amendment
states: “If the court has made a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.” Civil
litigants now attempt to obtain blanket rulings well in advance of trial on
every conceivable reason to object to evidence at trial, whether or not those
matters apply to the facts of the case. Therefore, when the trial is held later,
litigants believe that they do not have to object at all, and appellate issues
will still be preserved. Trial judges may be put in the position of having to
sua sponte strike evidence or hazard an appellate reversal with the
requirement of a new trial.
The excessive use of them, however, can clog the docket and become a trap.
Boilerplate motions in limine filed early in a case have dramatically increased
in the years since the amendment of section 90.104, Florida Statutes in 2003.
This amendment modified the rule requiring a contemporaneous objection to
preserve an objection to the admission of evidence on appeal. The amendment
states: “If the court has made a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.” Civil
litigants now attempt to obtain blanket rulings well in advance of trial on
every conceivable reason to object to evidence at trial, whether or not those
matters apply to the facts of the case. Therefore, when the trial is held later,
litigants believe that they do not have to object at all, and appellate issues
will still be preserved. Trial judges may be put in the position of having to
sua sponte strike evidence or hazard an appellate reversal with the
requirement of a new trial.
The motion in limine filed in this case is an example of the type of motion
that poses a problem for trial judges and litigants alike. Looking specifically
to the item in question in this case, the motion requested an order prohibiting
a CME doctor from testifying that plaintiff’s surgeries were unreasonable or
unnecessary. At the time of the motion, however, no CME doctor had examined the
plaintiff. Therefore, there was no evidence as yet of any CME doctor’s findings
or report. It is hard for us to conclude that the trial court made a definitive
ruling excluding evidence that did not even exist or excluded it without knowing
the specific context in which it may be given. And, as we show later, the
testimony of Dr. Schumacher was admissible.
that poses a problem for trial judges and litigants alike. Looking specifically
to the item in question in this case, the motion requested an order prohibiting
a CME doctor from testifying that plaintiff’s surgeries were unreasonable or
unnecessary. At the time of the motion, however, no CME doctor had examined the
plaintiff. Therefore, there was no evidence as yet of any CME doctor’s findings
or report. It is hard for us to conclude that the trial court made a definitive
ruling excluding evidence that did not even exist or excluded it without knowing
the specific context in which it may be given. And, as we show later, the
testimony of Dr. Schumacher was admissible.
Trial judges do not have to consider such motions well in advance of trial.
Many times they should not rule in advance. Evidentiary issues often depend upon
the context in which they are raised or the other evidence which is admitted or
developed through discovery. Where evidence excluded by a prior order in limine
is admitted inadvertently, simply because it was not pointed out to the trial
court that the evidence violated the order, this provides an appealable issue
and an opportunity for a new trial, even though the error could have been easily
corrected had it been pointed out by the parties.
Many times they should not rule in advance. Evidentiary issues often depend upon
the context in which they are raised or the other evidence which is admitted or
developed through discovery. Where evidence excluded by a prior order in limine
is admitted inadvertently, simply because it was not pointed out to the trial
court that the evidence violated the order, this provides an appealable issue
and an opportunity for a new trial, even though the error could have been easily
corrected had it been pointed out by the parties.
To prevent that from occurring in this case, the trial judge astutely
required the parties to object to any evidence sought to be excluded. Because
the plaintiff did not object, this issue was not preserved for appeal.
required the parties to object to any evidence sought to be excluded. Because
the plaintiff did not object, this issue was not preserved for appeal.
Even assuming that the trial court did not intend to overrule the entire
order in limine and that the issue is preserved, we would still affirm. The
motion in limine requested the exclusion of any testimony from a CME doctor that
the plaintiff’s surgeries were unreasonable or unnecessary, based upon Dungan
v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994). We conclude that the questions
asked of Dr. Schumacher went to the causal link between the surgeries and the
contested accident and thus did not address the same issue as was present in
Dungan.
order in limine and that the issue is preserved, we would still affirm. The
motion in limine requested the exclusion of any testimony from a CME doctor that
the plaintiff’s surgeries were unreasonable or unnecessary, based upon Dungan
v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994). We conclude that the questions
asked of Dr. Schumacher went to the causal link between the surgeries and the
contested accident and thus did not address the same issue as was present in
Dungan.
In Dungan, the plaintiff was injured in an automobile accident.
Id. at 160. Although she required no immediate treatment, she developed
pain and resulting disabilities and sought medical care. Her physician
ultimately performed disc fusion surgery. At trial, the defendant’s medical
expert opined that he would have given the plaintiff conservative treatment, and
that the disc fusion surgery was not appropriate or reasonable based upon the
plaintiff’s physical findings. Id. at 161-62. After the plaintiff’s
continued objections, the trial court instructed the jury to disregard the
expert’s testimony “with respect to whether the surgery was reasonable or not,”
but the plaintiff’s motion for a mistrial was denied. Id. at 161-62.
Notwithstanding the trial court’s ruling and over further objection, the expert
testified that a substantial cause of the plaintiff’s continuing pain and
disability was the inappropriate surgery performed by her treating physician.
Id. at 162. He concluded that the surgery actually caused additional pain
and disability to the plaintiff and increased her permanent disability rating.
The trial court then refused the plaintiff’s request for a special jury
instruction on the defendant tortfeasor’s liability for aggravation of injuries
caused by subsequent medical treatment. The jury returned a verdict denying
recovery to the plaintiff, and she appealed.
Id. at 160. Although she required no immediate treatment, she developed
pain and resulting disabilities and sought medical care. Her physician
ultimately performed disc fusion surgery. At trial, the defendant’s medical
expert opined that he would have given the plaintiff conservative treatment, and
that the disc fusion surgery was not appropriate or reasonable based upon the
plaintiff’s physical findings. Id. at 161-62. After the plaintiff’s
continued objections, the trial court instructed the jury to disregard the
expert’s testimony “with respect to whether the surgery was reasonable or not,”
but the plaintiff’s motion for a mistrial was denied. Id. at 161-62.
Notwithstanding the trial court’s ruling and over further objection, the expert
testified that a substantial cause of the plaintiff’s continuing pain and
disability was the inappropriate surgery performed by her treating physician.
Id. at 162. He concluded that the surgery actually caused additional pain
and disability to the plaintiff and increased her permanent disability rating.
The trial court then refused the plaintiff’s request for a special jury
instruction on the defendant tortfeasor’s liability for aggravation of injuries
caused by subsequent medical treatment. The jury returned a verdict denying
recovery to the plaintiff, and she appealed.
The First District reversed, relying on Stuart v. Hertz Corp., 351 So.
2d 703, 707 (Fla. 1977), for the proposition that “a wrongdoer is liable for the
ultimate negligence on the part of a physician who has treated an injury in such
a way that the treatment may have increased the damage which otherwise would
have followed from the original wrong.” Dungan, 632 So. 2d at 162. It
concluded that the medical expert’s testimony was directed at proving that the
plaintiff’s continuing pain and disability were the result of inappropriate
surgery rather than the accident. Id. at 163. It pointed to defense
counsel’s opening and closing statements, in which counsel told the jury that
the plaintiff’s physician’s initial treatment was incorrect, and the surgery he
performed was inappropriate and led to problems which she did not have before
the surgery. Id. at 162-63. It also concluded that the court erred in
failing to give the special jury instruction. Id. at 163.
2d 703, 707 (Fla. 1977), for the proposition that “a wrongdoer is liable for the
ultimate negligence on the part of a physician who has treated an injury in such
a way that the treatment may have increased the damage which otherwise would
have followed from the original wrong.” Dungan, 632 So. 2d at 162. It
concluded that the medical expert’s testimony was directed at proving that the
plaintiff’s continuing pain and disability were the result of inappropriate
surgery rather than the accident. Id. at 163. It pointed to defense
counsel’s opening and closing statements, in which counsel told the jury that
the plaintiff’s physician’s initial treatment was incorrect, and the surgery he
performed was inappropriate and led to problems which she did not have before
the surgery. Id. at 162-63. It also concluded that the court erred in
failing to give the special jury instruction. Id. at 163.
In Nason v. Shafranski, 33 So. 3d 117, 122 (Fla. 4th DCA 2010), we
relied on Dungan to hold that the refusal to give a special instruction
that the defendant was responsible for damages resulting from negligent or
improper medical care was error requiring reversal.1 There, as in Dungan, the plaintiff was
injured in an accident, complained of neck and back pain, and was referred to a
physician who diagnosed him with both cervical and lumbar disc herniations based
upon MRI scans. Id. at 118. His treatment began with injections, but the
doctor eventually performed several surgeries on the plaintiff, the last of
which was a disc fusion. Id. at 118-19. The plaintiff continued to
complain of pain and headaches and developed depression. His physician also
testified that the plaintiff could need additional, more extensive surgery
should his condition not improve.
relied on Dungan to hold that the refusal to give a special instruction
that the defendant was responsible for damages resulting from negligent or
improper medical care was error requiring reversal.1 There, as in Dungan, the plaintiff was
injured in an accident, complained of neck and back pain, and was referred to a
physician who diagnosed him with both cervical and lumbar disc herniations based
upon MRI scans. Id. at 118. His treatment began with injections, but the
doctor eventually performed several surgeries on the plaintiff, the last of
which was a disc fusion. Id. at 118-19. The plaintiff continued to
complain of pain and headaches and developed depression. His physician also
testified that the plaintiff could need additional, more extensive surgery
should his condition not improve.
The defense medical expert was Dr. Schumacher, the same medical expert as in
the present case. He testified in Nason that his review of the MRI scans
did not reveal any herniation and that the plaintiff had suffered a mere sprain
in the accident which should have been conservatively treated. Over objection,
he testified that he would not have recommended surgery. The plaintiff’s counsel
requested a similar instruction as the court considered in Dungan, but
the court denied it, as it did not think that the defendant was claiming that
the treating physician was negligent. Nevertheless, during closing argument,
defense counsel attacked the treating physician and the surgery he performed,
which counsel argued made the plaintiff’s problems worse. Id. at 119-20.
When the jury retired to deliberate, it asked a question which indicated that it
was confused as to whether the defendant would be liable for the consequences of
treatment. Id. at 120. It returned a verdict for the plaintiff but did
not award the full cost of the surgeries, prompting an appeal.
the present case. He testified in Nason that his review of the MRI scans
did not reveal any herniation and that the plaintiff had suffered a mere sprain
in the accident which should have been conservatively treated. Over objection,
he testified that he would not have recommended surgery. The plaintiff’s counsel
requested a similar instruction as the court considered in Dungan, but
the court denied it, as it did not think that the defendant was claiming that
the treating physician was negligent. Nevertheless, during closing argument,
defense counsel attacked the treating physician and the surgery he performed,
which counsel argued made the plaintiff’s problems worse. Id. at 119-20.
When the jury retired to deliberate, it asked a question which indicated that it
was confused as to whether the defendant would be liable for the consequences of
treatment. Id. at 120. It returned a verdict for the plaintiff but did
not award the full cost of the surgeries, prompting an appeal.
Relying on Stuart and Dungan, we reversed because of the trial
court’s failure to give the special jury instruction. Id. at 120-22. We
noted that, even though the defendant did not actually accuse the treating
physician of malpractice, the defense medical expert’s testimony and the defense
closing argument “clearly placed this issue before the jury.” Id. at 121.
Although the plaintiff also argued Dr. Schumacher’s testimony that he would not
have recommended surgery was inadmissible, we did not rule on that issue,
reversing only on the jury instruction issue. Id. at 122.
court’s failure to give the special jury instruction. Id. at 120-22. We
noted that, even though the defendant did not actually accuse the treating
physician of malpractice, the defense medical expert’s testimony and the defense
closing argument “clearly placed this issue before the jury.” Id. at 121.
Although the plaintiff also argued Dr. Schumacher’s testimony that he would not
have recommended surgery was inadmissible, we did not rule on that issue,
reversing only on the jury instruction issue. Id. at 122.
The present case is distinguishable from both Nason and Dungan.
In both of those cases, the inappropriate or unnecessary surgery was claimed
by the defendants to have actually made the plaintiff’s condition worse, and the
treating physicians’ inappropriate treatment in performing the surgeries on the
plaintiffs became the main point of attack. The same cannot be said for what
occurred in this case. According to the plaintiff’s own witnesses, the surgeries
ultimately made the plaintiff’s condition better. Thus, this case does not even
fall into the Stuart-Dungan-Nason rule, which makes the tortfeasor liable
for negligent medical treatment of an injury which increases the plaintiff’s
damages.
In both of those cases, the inappropriate or unnecessary surgery was claimed
by the defendants to have actually made the plaintiff’s condition worse, and the
treating physicians’ inappropriate treatment in performing the surgeries on the
plaintiffs became the main point of attack. The same cannot be said for what
occurred in this case. According to the plaintiff’s own witnesses, the surgeries
ultimately made the plaintiff’s condition better. Thus, this case does not even
fall into the Stuart-Dungan-Nason rule, which makes the tortfeasor liable
for negligent medical treatment of an injury which increases the plaintiff’s
damages.
For damages, the plaintiff sought only his past and future medical expenses
and lost earning capacity. The surgeries alone cost hundreds of thousands of
dollars. The defense did not claim that these very expensive surgeries were
inappropriate; the defense claimed they were related not to this accident, but
to the plaintiff’s ongoing and well-documented past injuries. In opening
statement and again in closing argument, defense counsel stressed that the main
issue the jury would have to decide was whether the surgeries were caused by
this accident, and the plaintiff voiced no objection to these statements. The
defense never argued that the doctors were negligent or committed malpractice.
What was argued was that the plaintiff failed to tell all of his doctors of his
significant pre-existing condition, including his repeated complaints of neck
and back pain which pre-existed the accident in this case. The defense suggested
that the surgeries would have been a result of those conditions.
and lost earning capacity. The surgeries alone cost hundreds of thousands of
dollars. The defense did not claim that these very expensive surgeries were
inappropriate; the defense claimed they were related not to this accident, but
to the plaintiff’s ongoing and well-documented past injuries. In opening
statement and again in closing argument, defense counsel stressed that the main
issue the jury would have to decide was whether the surgeries were caused by
this accident, and the plaintiff voiced no objection to these statements. The
defense never argued that the doctors were negligent or committed malpractice.
What was argued was that the plaintiff failed to tell all of his doctors of his
significant pre-existing condition, including his repeated complaints of neck
and back pain which pre-existed the accident in this case. The defense suggested
that the surgeries would have been a result of those conditions.
Thus, Dr. Schumacher’s testimony was not inadmissible based upon the
Dungan line of reasoning. He was asked whether the surgeries were
necessary as a result of the 2008 accident. Based upon his review of the
medical records, he concluded that they were not. If the order in limine could
be understood to bar this causation type testimony, then the trial court would
have erred in granting the motion on those grounds.
Dungan line of reasoning. He was asked whether the surgeries were
necessary as a result of the 2008 accident. Based upon his review of the
medical records, he concluded that they were not. If the order in limine could
be understood to bar this causation type testimony, then the trial court would
have erred in granting the motion on those grounds.
Dr. Schumacher’s testimony in this case does mirror the testimony that he
provided in Nason. He did not, however, ever accuse either Dr. Katzman or
Dr. Dare of medical malpractice. He simply took a more conservative approach to
treatment of the subjective complaints that the plaintiff expressed. Because
Nason did not address whether Dr. Schumacher’s testimony in that case was
objectionable, it does not compel reversal. Nason held that the use of
the testimony by the defense to create an issue of physician negligence required
the court to give the special jury instruction on tortfeasor liability for
subsequent medical treatment. Such an instruction was not even requested in this
case.
provided in Nason. He did not, however, ever accuse either Dr. Katzman or
Dr. Dare of medical malpractice. He simply took a more conservative approach to
treatment of the subjective complaints that the plaintiff expressed. Because
Nason did not address whether Dr. Schumacher’s testimony in that case was
objectionable, it does not compel reversal. Nason held that the use of
the testimony by the defense to create an issue of physician negligence required
the court to give the special jury instruction on tortfeasor liability for
subsequent medical treatment. Such an instruction was not even requested in this
case.
Because Dr. Schumacher’s testimony was not the Dungan-type testimony,
accusing the treating physicians of malpractice, it was not covered by the
motion in limine or the order granting it. It was admissible evidence, and no
error occurred in its admission.
accusing the treating physicians of malpractice, it was not covered by the
motion in limine or the order granting it. It was admissible evidence, and no
error occurred in its admission.
II. Denial of the Motion for New Trial
Generally, an order denying a motion for new trial is reviewed for an abuse
of discretion. Collins v. Douglass, 874 So. 2d 629, 631 (Fla. 4th DCA
2004); Smith v. Brown, 525 So. 2d 868, 869 (Fla. 1988).
of discretion. Collins v. Douglass, 874 So. 2d 629, 631 (Fla. 4th DCA
2004); Smith v. Brown, 525 So. 2d 868, 869 (Fla. 1988).
A trial court has discretionary authority to order a new trial when the
verdict is contrary to the manifest weight of the evidence. Brown v. Estate
of Stuckey, 749 So. 2d 490, 498 (Fla. 1999). In utilizing this discretionary
power:
verdict is contrary to the manifest weight of the evidence. Brown v. Estate
of Stuckey, 749 So. 2d 490, 498 (Fla. 1999). In utilizing this discretionary
power:
A trial judge has the responsibility to draw “on his [or her]
talents, his [or her] knowledge, and his [or her] experience to keep the search
for the truth in a proper channel,” and the trial judge should always grant a
motion for a new trial when “the jury has been deceived as to the force and
credibility of the evidence or has been influenced by considerations outside the
record.”
Id. at 497 (quoting Cloud v. Fallis, 110 So. 2d 669, 673 (Fla.
1959)).
1959)).
In Brown, the supreme court articulated the following test for
determining whether the trial court abused its discretion in denying a motion
for new trial:
determining whether the trial court abused its discretion in denying a motion
for new trial:
[A]n appellate court must recognize the broad discretionary
authority of the trial judge and apply the reasonableness test to determine
whether the trial judge committed an abuse of discretion. If an appellate court
determines that reasonable persons could differ as to the propriety of the
action taken by the trial court, there can be no finding of an abuse of
discretion.
Brown, 749 So. 2d at 497-98. Consequently,
The question for an appellate court is not whether or not the
[verdict] was contrary to the manifest weight of the evidence presented below. .
. . Rather, the appellate court is limited to considering whether or not the
trial court abused its discretion in denying a new trial. In order for [the
appellate court] to reach that conclusion, the evidence must be clear and
obvious, and not conflicting . . . .
Dewitt v. Maruhachi Ceramics of Am., Inc., 770 So. 2d 709, 711 (Fla.
5th DCA 2000) (citations and footnote omitted); see also Weatherly v.
Louis, 31 So. 3d 803, 805 (Fla. 3d DCA 2009).
5th DCA 2000) (citations and footnote omitted); see also Weatherly v.
Louis, 31 So. 3d 803, 805 (Fla. 3d DCA 2009).
Plaintiff argues that the trial court abused its discretion in denying his
motion for a new trial because the jury’s verdict is contrary to the manifest
weight of the evidence. Plaintiff claims that defendants admitted liability, and
the jury was not free to reject the testimony from the expert witnesses who all
testified that he suffered some injury from the 2008 accident. We disagree.
motion for a new trial because the jury’s verdict is contrary to the manifest
weight of the evidence. Plaintiff claims that defendants admitted liability, and
the jury was not free to reject the testimony from the expert witnesses who all
testified that he suffered some injury from the 2008 accident. We disagree.
First, we do not agree that the defendants admitted liability at trial. While
the attorney did appear to concede responsibility on behalf of Preece, he told
the jury that it was their decision as to how much blame to assess to Poole,
given the fact that Poole made a sudden stop and his taillights were covered
with mud so that Preece could not see them. The jury could have determined that
Preece was not negligent because of these other conditions.
the attorney did appear to concede responsibility on behalf of Preece, he told
the jury that it was their decision as to how much blame to assess to Poole,
given the fact that Poole made a sudden stop and his taillights were covered
with mud so that Preece could not see them. The jury could have determined that
Preece was not negligent because of these other conditions.
The defense attorney also argued strenuously that the accident did not cause
any of the injuries to the plaintiff. We disagree that all of the experts
concluded that plaintiff suffered some injury. Dr. Schumacher testified that
plaintiff suffered a soft tissue injury only if one believed the subjective
complaints reported by the plaintiff.
any of the injuries to the plaintiff. We disagree that all of the experts
concluded that plaintiff suffered some injury. Dr. Schumacher testified that
plaintiff suffered a soft tissue injury only if one believed the subjective
complaints reported by the plaintiff.
The court read the standard jury instruction regarding expert testimony which
instructs the jury that it
instructs the jury that it
may accept such opinion testimony, reject it, or give it the weight
you think it deserves, considering the knowledge, skill, experience, training or
education of the witness, the reasons given by the witness for the opinion
expressed, and all the other evidence in this case.
See Fla. Std. Jury Instr. (Civ.) 2.2(b) [since renumbered 601.2(b)].
However, “when medical evidence on permanence or causation is undisputed,
unimpeached, or not otherwise subject to question based on other evidence
presented at trial, the jury is not free to simply ignore or arbitrarily reject
that evidence and render a verdict in conflict with it.” Campbell v.
Griffith, 971 So. 2d 232, 236 (Fla. 2d DCA 2008).
However, “when medical evidence on permanence or causation is undisputed,
unimpeached, or not otherwise subject to question based on other evidence
presented at trial, the jury is not free to simply ignore or arbitrarily reject
that evidence and render a verdict in conflict with it.” Campbell v.
Griffith, 971 So. 2d 232, 236 (Fla. 2d DCA 2008).
The jury’s ability to reject expert testimony must be founded on some
reasonable basis in the evidence. Wald v. Grainger, 64 So. 3d 1201,
1205-06 (Fla. 2011). This reasonable basis can include: conflicting medical
evidence; evidence that impeaches the credibility or basis for an expert’s
opinion; the lack of candor of the plaintiff in disclosing prior accidents,
prior medical treatment, and prior or subsequent similar injuries; conflicting
lay testimony or evidence that disputes the injury claim; or the plaintiff’s
overall credibility relating to conflicting statements regarding the alleged
injury. Id. at 1206; see also Easkold v. Rhodes, 614 So. 2d 495,
497-98 (Fla. 1993) (concluding that jury could reject expert medical testimony
that the plaintiff had sustained permanent injuries from an automobile accident
where the experts’ medical opinions were premised on the plaintiff’s
self-reported false medical history).
reasonable basis in the evidence. Wald v. Grainger, 64 So. 3d 1201,
1205-06 (Fla. 2011). This reasonable basis can include: conflicting medical
evidence; evidence that impeaches the credibility or basis for an expert’s
opinion; the lack of candor of the plaintiff in disclosing prior accidents,
prior medical treatment, and prior or subsequent similar injuries; conflicting
lay testimony or evidence that disputes the injury claim; or the plaintiff’s
overall credibility relating to conflicting statements regarding the alleged
injury. Id. at 1206; see also Easkold v. Rhodes, 614 So. 2d 495,
497-98 (Fla. 1993) (concluding that jury could reject expert medical testimony
that the plaintiff had sustained permanent injuries from an automobile accident
where the experts’ medical opinions were premised on the plaintiff’s
self-reported false medical history).
In Fell v. Carlin, 6 So. 3d 119, 120 (Fla. 2d DCA 2009), the plaintiff
moved for a directed verdict on the issue of whether he sustained an injury in
an accident. The trial court denied the motion, and the jury found for the
defendant. On appeal, the plaintiff argued that the testimony was undisputed
that he had suffered an injury as a result of the accident.
moved for a directed verdict on the issue of whether he sustained an injury in
an accident. The trial court denied the motion, and the jury found for the
defendant. On appeal, the plaintiff argued that the testimony was undisputed
that he had suffered an injury as a result of the accident.
The Second District noted that the jury heard testimony that would provide it
with a reasonable basis to reject the medical expert’s testimony. The medical
opinions regarding plaintiff’s injury were based on his subjective complaints of
pain. As such, the validity of those opinions depended on the plaintiff’s candor
in reporting his complaints. The defendant’s medical expert testified that while
he believed the plaintiff sustained a non-permanent, soft tissue injury, his
opinion was a “benefit of the doubt” diagnosis. He clarified that this meant he
based his opinion on the plaintiff’s subjective complaints of pain, which he
assumed were truthful; however, if they were not truthful, his opinion would not
be valid. Id. at 120-21. Thus, the court held that because the jury had a
reasonable basis to conclude the plaintiff “was not candid with his doctors, it
also had a basis to reject their opinions regarding whether he was injured as a
result of the accident.” Id. at 121; see also Hernandez v.
Gonzalez, 124 So. 3d 988, 991 (Fla. 4th DCA 2013) (finding that “[a] jury
may reject medical testimony, even on uncontroverted issues, provided it has a
reasonable basis to do so, such as where there is conflicting lay testimony.”).
with a reasonable basis to reject the medical expert’s testimony. The medical
opinions regarding plaintiff’s injury were based on his subjective complaints of
pain. As such, the validity of those opinions depended on the plaintiff’s candor
in reporting his complaints. The defendant’s medical expert testified that while
he believed the plaintiff sustained a non-permanent, soft tissue injury, his
opinion was a “benefit of the doubt” diagnosis. He clarified that this meant he
based his opinion on the plaintiff’s subjective complaints of pain, which he
assumed were truthful; however, if they were not truthful, his opinion would not
be valid. Id. at 120-21. Thus, the court held that because the jury had a
reasonable basis to conclude the plaintiff “was not candid with his doctors, it
also had a basis to reject their opinions regarding whether he was injured as a
result of the accident.” Id. at 121; see also Hernandez v.
Gonzalez, 124 So. 3d 988, 991 (Fla. 4th DCA 2013) (finding that “[a] jury
may reject medical testimony, even on uncontroverted issues, provided it has a
reasonable basis to do so, such as where there is conflicting lay testimony.”).
Here, there is no question that the jury heard substantial evidence that
plaintiff was less than candid with his doctors. He failed to tell them of his
prior accidents. He also minimized his prior injuries and complaints, when the
medical records showed his continual complaints of both low back and neck pain
and treatment over the years. His co-workers testified to his complaints and his
need to take medication for his complaints up until the time of this accident.
All the doctors testified that their opinions were based in part upon the
plaintiff’s report of his pre-accident condition, as well as his subjective
complaints after the accident. Similar to Fell, because the jury had a
reasonable basis to conclude the plaintiff was not candid with his doctors, the
jury had a reasonable basis to reject the doctors’ opinions. Moreover, Dr.
Schumacher’s opinion that plaintiff suffered a soft tissue injury was predicated
on plaintiff’s subjective complaints of pain, which the doctor noted depended
upon the plaintiff’s candor. The trial court did not err in denying the motion
for new trial.
plaintiff was less than candid with his doctors. He failed to tell them of his
prior accidents. He also minimized his prior injuries and complaints, when the
medical records showed his continual complaints of both low back and neck pain
and treatment over the years. His co-workers testified to his complaints and his
need to take medication for his complaints up until the time of this accident.
All the doctors testified that their opinions were based in part upon the
plaintiff’s report of his pre-accident condition, as well as his subjective
complaints after the accident. Similar to Fell, because the jury had a
reasonable basis to conclude the plaintiff was not candid with his doctors, the
jury had a reasonable basis to reject the doctors’ opinions. Moreover, Dr.
Schumacher’s opinion that plaintiff suffered a soft tissue injury was predicated
on plaintiff’s subjective complaints of pain, which the doctor noted depended
upon the plaintiff’s candor. The trial court did not err in denying the motion
for new trial.
For the foregoing reasons, we affirm the final judgment. (Tuter, Jack,
Associate Judge, concurs specially with opinion. Levine, J., dissents with
opinion.)
Associate Judge, concurs specially with opinion. Levine, J., dissents with
opinion.)
__________________
(Tuter, Jack, Associate Judge, concurring specially.) I wholeheartedly agree
with Judge Warner’s reasoned analysis regarding the admission of the expert
testimony from the defense expert in this case and write to concur in the motion
in limine/preservation of error issues. More than a year-and-a-half prior to
trial, plaintiff scheduled a hearing on a forty-five category motion in limine.
At the time the motion was heard, pre-trial discovery was ongoing, medical
expert depositions had not been completed, and a compulsory medical examination
of plaintiff had neither been sought nor completed. Despite all of these pending
matters, the predecessor trial judge ruled on the motion and granted plaintiff’s
request to exclude proposed and undeveloped defense testimony that plaintiff
underwent unnecessary surgeries.
with Judge Warner’s reasoned analysis regarding the admission of the expert
testimony from the defense expert in this case and write to concur in the motion
in limine/preservation of error issues. More than a year-and-a-half prior to
trial, plaintiff scheduled a hearing on a forty-five category motion in limine.
At the time the motion was heard, pre-trial discovery was ongoing, medical
expert depositions had not been completed, and a compulsory medical examination
of plaintiff had neither been sought nor completed. Despite all of these pending
matters, the predecessor trial judge ruled on the motion and granted plaintiff’s
request to exclude proposed and undeveloped defense testimony that plaintiff
underwent unnecessary surgeries.
However, by the time the case went to trial, a successor judge was presiding
over the matter and was left with these early and out-of-context motion in
limine rulings. The successor judge rightly revisited the rulings and advised
the parties to make contemporaneous evidentiary objections based
on her unfamiliarity with the case. Thus, there was no definitive pre-trial
ruling on the admissibility of the challenged testimony, and plaintiff was
required to voice a contemporaneous objection to the testimony in order to
preserve the issue for appeal. Compare Philip Morris USA, Inc. v. Tullo,
121 So. 3d 595, 601 (Fla. 4th DCA 2013) (contemporaneous objection required to
preserve evidentiary issue for appeal when trial court does not make a
definitive pre-trial ruling), with § 90.104(1)(b), Fla. Stat. (2010)
(providing in relevant part that when a “court has made a definitive ruling on
the record admitting or excluding evidence, either at or before trial, a party
need not renew an objection . . . to preserve a claim of error for appeal.”).
Plaintiff’s failure to make any such objection precludes our consideration of
his argument on appeal.
over the matter and was left with these early and out-of-context motion in
limine rulings. The successor judge rightly revisited the rulings and advised
the parties to make contemporaneous evidentiary objections based
on her unfamiliarity with the case. Thus, there was no definitive pre-trial
ruling on the admissibility of the challenged testimony, and plaintiff was
required to voice a contemporaneous objection to the testimony in order to
preserve the issue for appeal. Compare Philip Morris USA, Inc. v. Tullo,
121 So. 3d 595, 601 (Fla. 4th DCA 2013) (contemporaneous objection required to
preserve evidentiary issue for appeal when trial court does not make a
definitive pre-trial ruling), with § 90.104(1)(b), Fla. Stat. (2010)
(providing in relevant part that when a “court has made a definitive ruling on
the record admitting or excluding evidence, either at or before trial, a party
need not renew an objection . . . to preserve a claim of error for appeal.”).
Plaintiff’s failure to make any such objection precludes our consideration of
his argument on appeal.
This scenario should serve as a cautionary tale. Motions in limine should
never be used by litigants simply to get a “feel” for how the trial judge may
view the evidence that will develop over the course of a trial. A significant
number of motions in limine are not true motions in limine, but are
simply an effort to engage in dialogue with the trial judge as to how he or she
may view the evidence which will be offered at trial. Unfortunately, this puts
the trial judge at a disadvantage, as the evidence ruled on is often not fully
developed and cannot be considered in the context of the entire case. It is also
problematic that such rulings may be passed to successor judges who are then
confronted with either blindly accepting the rulings or abandoning them.
Venturing into the motion in limine foray too far in advance of trial or without
the matter constituting a true motion in limine is fraught with peril for
both litigants and the trial court.
never be used by litigants simply to get a “feel” for how the trial judge may
view the evidence that will develop over the course of a trial. A significant
number of motions in limine are not true motions in limine, but are
simply an effort to engage in dialogue with the trial judge as to how he or she
may view the evidence which will be offered at trial. Unfortunately, this puts
the trial judge at a disadvantage, as the evidence ruled on is often not fully
developed and cannot be considered in the context of the entire case. It is also
problematic that such rulings may be passed to successor judges who are then
confronted with either blindly accepting the rulings or abandoning them.
Venturing into the motion in limine foray too far in advance of trial or without
the matter constituting a true motion in limine is fraught with peril for
both litigants and the trial court.
__________________
(Levine, J., dissenting.) I respectfully dissent from the majority opinion.
In this case, appellant filed a motion in limine to prevent the defense from
arguing that appellant’s medical surgery was not reasonable or necessary. The
trial court granted the motion in limine based on case law from this court.
Appellee violated the order in limine by directly asking the defense medical
witness a question contrary to the order. Based on this improper line of
questioning, I would reverse for a new trial.
arguing that appellant’s medical surgery was not reasonable or necessary. The
trial court granted the motion in limine based on case law from this court.
Appellee violated the order in limine by directly asking the defense medical
witness a question contrary to the order. Based on this improper line of
questioning, I would reverse for a new trial.
Prior to trial, appellant filed a motion in limine which included the
following requests:
following requests:
24. An expert may properly explain his or her opinion on an issue in
controversy by outlining the claimed deficiencies in the opposing expert’s
methodology so long as the expert does not attack the opposing treating
physician or retained expert’s ability, credibility, reputation or
competence.
. . . .
34. That any of the Plaintiff’s treating physicians have committed
medical malpractice or medical negligence or suffered any negative repercussions
from the care rendered.
. . . .
36. CME doctors are precluded from providing testimony wherein they
opine that a Plaintiff’s surgery was not reasonable or not necessary. . .
.
(citations omitted).
Subsequently, the trial court issued an order that listed rulings for all of
appellant’s requests in the motion in limine, which included the following as it
related to requests numbered 24, 34, and 36:
appellant’s requests in the motion in limine, which included the following as it
related to requests numbered 24, 34, and 36:
24. Agreed upon by counsel;
. . . .
34. Agreed as to this case;
. . . .
36. Granted;
At a hearing regarding a supplemental motion in limine, appellant brought up
the fact that the predecessor judge previously granted a motion in limine
limiting the defense’s CME doctor to opinions expressly in their reports, which
was request number 9 in appellant’s original motion in limine. The trial court
then reviewed the predecessor judge’s order and stated the following:
the fact that the predecessor judge previously granted a motion in limine
limiting the defense’s CME doctor to opinions expressly in their reports, which
was request number 9 in appellant’s original motion in limine. The trial court
then reviewed the predecessor judge’s order and stated the following:
THE COURT: I mean, I am looking at this order on plaintiff’s motion
in limine, and it really does not tell me a lot. It’s numbered and says not
ruled upon, agreed by counsel. I have no idea what any of this
means.
[PLAINTIFF’S COUNSEL]: Number nine is the one we are talking
about.
THE COURT: Nine, granted. Yeah, that is all it says, granted.
Granted as to what. Are you kidding me, two years ago. Whatever.
Hopefully, you know, because there is a bunch of them here
that says denied without prejudice to making contemporaneous objections. Before
offered, there must be a proffer outside of the presence of jury.. I
have no idea.
That’s why when I am presiding over a trial, I want the motion in
limine like the week before, so I remember. I would never do a motion like this
two years before. And then have another judge rely on it. I mean, I have no
idea.
So hopefully, you all know and you are going to have to raise
your objections because I don’t know what has been done.
[PLAINTIFF’S COUNSEL]: Yes, Your Honor. I mean, I was not even
involved in the case.
THE COURT: On Dr. Schumacher’s opinion, it is granted in part. I
guess it is an ora [sic] tenus motion. Granted in part and denied in part. His
opinions may not change. If there is any question about him updating or
supplementing or changing the opinion in any way, we need to proffer that part
of the testimony before we proceed to the jury.
I am not going to limit him to say, you could only rely or review
records in 2001. If he has looked at records since then, without admitting the
contents of those records or disclosing the contents, the details of those
records, then I will reserve on that issue subject to a proffer.
I don’t know what you are, or what he is trying to get in something,
whether it is something that you have provided or it is additional
treatment.
(emphasis added).
The majority believes that the second statement in bold, reminding the
parties to object, effectively vacated the motion in limine granted by the
predecessor judge regarding forty-five specific requests. However, it appears
just as likely that the trial court was referring to the first statement in
bold, reminding the parties to object if the motions were denied without
prejudice, or contemporaneously object if it was one of the items not ruled
upon. The order of the prior judge included twenty requests agreed to by the
parties; four requests denied by the court, including two requests denied
without prejudice to making contemporaneous objections; five requests granted by
the court; fifteen requests not ruled upon; and one request requiring a proffer
outside the presence of the jury before evidence is offered. Nowhere in the
record is there any reference directly stating or alluding to the fact that all
of the prior motions in limine granted, denied, or denied without prejudice had
been vacated.
parties to object, effectively vacated the motion in limine granted by the
predecessor judge regarding forty-five specific requests. However, it appears
just as likely that the trial court was referring to the first statement in
bold, reminding the parties to object if the motions were denied without
prejudice, or contemporaneously object if it was one of the items not ruled
upon. The order of the prior judge included twenty requests agreed to by the
parties; four requests denied by the court, including two requests denied
without prejudice to making contemporaneous objections; five requests granted by
the court; fifteen requests not ruled upon; and one request requiring a proffer
outside the presence of the jury before evidence is offered. Nowhere in the
record is there any reference directly stating or alluding to the fact that all
of the prior motions in limine granted, denied, or denied without prejudice had
been vacated.
In fact, the best evidence that the trial court did not vacate the order in
limine — specifically as to items 24, 34, and 36 — is appellee’s own brief.
After listing requests 16, 24, 34, and 36, appellee concedes to the following in
its answer brief: “The trial court entered a written order denying request
number 16, and the remainder of the requests were agreed by the parties or
granted by the trial court. (R: 105-106).” Appellee argues that appellee’s
questioning of the CME doctor “did not violate the Order in Limine.” Nowhere
does appellee even argue or hint that the trial court’s order was vacated. All
parties argue under the clear assumption that the order in limine as to requests
24, 34, and 36 was not vacated.
limine — specifically as to items 24, 34, and 36 — is appellee’s own brief.
After listing requests 16, 24, 34, and 36, appellee concedes to the following in
its answer brief: “The trial court entered a written order denying request
number 16, and the remainder of the requests were agreed by the parties or
granted by the trial court. (R: 105-106).” Appellee argues that appellee’s
questioning of the CME doctor “did not violate the Order in Limine.” Nowhere
does appellee even argue or hint that the trial court’s order was vacated. All
parties argue under the clear assumption that the order in limine as to requests
24, 34, and 36 was not vacated.
“Sitting as an appellate court, we are precluded from making factual findings
ourselves in the first instance.” Douglass v. Buford, 9 So. 3d 636, 637
(Fla. 1st DCA 2009); Farneth v. State, 945 So. 2d 614, 617 (Fla. 2d DCA
2006) (“A fundamental principle of appellate procedure is that an appellate
court is not empowered to make findings of fact.”). “Relatedly, we ‘cannot
employ the tipsy coachman rule where a lower court has not made factual findings
on an issue and it would be inappropriate for an appellate court to do so.’ ”
Featured Props., LLC v. Blky, LLC, 65 So. 3d 135, 137 (Fla. 1st DCA 2011)
(quoting Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009)). Where
the record lends itself to differing interpretations in retrospect, the
appellate court should restrict itself to the record as understood by all the
parties.
ourselves in the first instance.” Douglass v. Buford, 9 So. 3d 636, 637
(Fla. 1st DCA 2009); Farneth v. State, 945 So. 2d 614, 617 (Fla. 2d DCA
2006) (“A fundamental principle of appellate procedure is that an appellate
court is not empowered to make findings of fact.”). “Relatedly, we ‘cannot
employ the tipsy coachman rule where a lower court has not made factual findings
on an issue and it would be inappropriate for an appellate court to do so.’ ”
Featured Props., LLC v. Blky, LLC, 65 So. 3d 135, 137 (Fla. 1st DCA 2011)
(quoting Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009)). Where
the record lends itself to differing interpretations in retrospect, the
appellate court should restrict itself to the record as understood by all the
parties.
If the record does not clearly support a finding that the motion in limine
has been vacated, then appellant did preserve the record on the violation of
requests 24, 34, and 36. “Section 90.104(1) was amended in 2003 to provide that,
‘If the court has made a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.’ ” Charles W. Ehrhardt,
Florida Evidence § 104.5 (2014 ed.). It would be unfair to require appellant to
object to evidence introduced in violation of the previously-granted requests in
limine — specifically 24, 34, and 36 — where the record does not clearly
support that the trial court vacated the order granting those requests.
Appellant would correctly rely on section 90.104(1), which states that appellant
need not object in order to preserve the issue, where the trial court has
previously granted requests within the motion in limine and where the “vacating”
of the entire motion in limine is not clear to the parties. “[I]t is imperative
that the in limine order be clear and that all parties concerned have an
accurate understanding of its limitations.” Reidelberger v. Highland Body
Shop, Inc., 416 N.E.2d 268, 271 (Ill. 1981).
has been vacated, then appellant did preserve the record on the violation of
requests 24, 34, and 36. “Section 90.104(1) was amended in 2003 to provide that,
‘If the court has made a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.’ ” Charles W. Ehrhardt,
Florida Evidence § 104.5 (2014 ed.). It would be unfair to require appellant to
object to evidence introduced in violation of the previously-granted requests in
limine — specifically 24, 34, and 36 — where the record does not clearly
support that the trial court vacated the order granting those requests.
Appellant would correctly rely on section 90.104(1), which states that appellant
need not object in order to preserve the issue, where the trial court has
previously granted requests within the motion in limine and where the “vacating”
of the entire motion in limine is not clear to the parties. “[I]t is imperative
that the in limine order be clear and that all parties concerned have an
accurate understanding of its limitations.” Reidelberger v. Highland Body
Shop, Inc., 416 N.E.2d 268, 271 (Ill. 1981).
In Reidelberger, a predecessor judge granted a motion in limine
prohibiting certain questions regarding the speed and movement of the decedent’s
vehicle. During trial, the successor judge made several statements adopting
differing restrictions as to testimony regarding the vehicle’s movement and
speed, inconsistent with the original limine order. The Illinois Supreme Court
found that the trial court’s rulings during trial were not sufficiently specific
or clear. As such, violations of these new rulings could not support a basis for
granting a new trial. Similarly, in the present case, the trial court’s ruling
was not sufficiently specific or clear to support a finding that the trial court
intended to vacate the original order in limine. Because the trial court’s
statements were ambiguous as to any intention to modify or vacate the limine
order, the original order in limine controlled.
prohibiting certain questions regarding the speed and movement of the decedent’s
vehicle. During trial, the successor judge made several statements adopting
differing restrictions as to testimony regarding the vehicle’s movement and
speed, inconsistent with the original limine order. The Illinois Supreme Court
found that the trial court’s rulings during trial were not sufficiently specific
or clear. As such, violations of these new rulings could not support a basis for
granting a new trial. Similarly, in the present case, the trial court’s ruling
was not sufficiently specific or clear to support a finding that the trial court
intended to vacate the original order in limine. Because the trial court’s
statements were ambiguous as to any intention to modify or vacate the limine
order, the original order in limine controlled.
The majority argues that even if “the trial court did not intend to overrule
the entire order in limine and that issue is preserved, we would still affirm.”
I also respectfully disagree. Clearly, the questions asked by appellee violated
the previously granted motion in limine. During trial, appellee elicited the
following testimony from Dr. Schumacher:
the entire order in limine and that issue is preserved, we would still affirm.”
I also respectfully disagree. Clearly, the questions asked by appellee violated
the previously granted motion in limine. During trial, appellee elicited the
following testimony from Dr. Schumacher:
Q Based on your examination, your education, experience and
training, based on your review of the medical records, do you have an opinion
within a reasonable degree of medical probability as to whether this auto
accident in 2-5-08 caused or necessitated the neck and back surgeries in 2008
and 2009?
A Well, all I can say in my practice, I wouldn’t prescribe surgery
in this case for someone with back and neck pain and MRI’s that don’t show
anything on there that is pushing on something, or show on examination an
objective neurologic deficit.
That doesn’t mean that if he had surgery, it is not malpractice if
someone did. It is just my practice and the way I was trained that I would not
prescribe surgery for that.
The questions asked by appellee violated the specific order in limine of the
trial court. The trial court granted request 36 in which appellant requested
that “CME doctors [be] precluded from providing testimony wherein they opine
that a Plaintiff’s surgery was not reasonable or not necessary.”
trial court. The trial court granted request 36 in which appellant requested
that “CME doctors [be] precluded from providing testimony wherein they opine
that a Plaintiff’s surgery was not reasonable or not necessary.”
In a line of cases starting with Stuart v. Hertz Corp., 351 So. 2d
703, 706 (Fla. 1977), Florida courts have concluded that “[a]n active tortfeasor
should not be permitted to confuse and obfuscate the issue of his liability by
forcing the plaintiff to concurrently litigate a complex malpractice suit in
order to proceed with a simple personal injury suit.” This is because “the rule
is well established that a wrongdoer is liable for the ultimate result, although
the mistake or even negligence of the physician who treated the injury may have
increased the damage which would otherwise have followed from the original
wrong.” Id. at 707 (quoting 57 Am. Jur. 2d Negligence § 149, at
507).
703, 706 (Fla. 1977), Florida courts have concluded that “[a]n active tortfeasor
should not be permitted to confuse and obfuscate the issue of his liability by
forcing the plaintiff to concurrently litigate a complex malpractice suit in
order to proceed with a simple personal injury suit.” This is because “the rule
is well established that a wrongdoer is liable for the ultimate result, although
the mistake or even negligence of the physician who treated the injury may have
increased the damage which would otherwise have followed from the original
wrong.” Id. at 707 (quoting 57 Am. Jur. 2d Negligence § 149, at
507).
Applying Stuart, this court has stated that a “third-party malpractice
claim could not be tried as part of the main lawsuit over the plaintiff’s
objection.” Nason v. Shafranski, 33 So. 3d 117, 121 (Fla. 4th DCA 2010).
This court concluded that “ ‘unnecessary surgery may constitute medical
malpractice where it deviates from the standard of care.’ Although the
defendants carefully avoided the term ‘malpractice’ during trial, Dr.
Schumacher’s testimony and the defendants’ closing argument clearly placed this
issue before the jury.” Id. (citation omitted).
claim could not be tried as part of the main lawsuit over the plaintiff’s
objection.” Nason v. Shafranski, 33 So. 3d 117, 121 (Fla. 4th DCA 2010).
This court concluded that “ ‘unnecessary surgery may constitute medical
malpractice where it deviates from the standard of care.’ Although the
defendants carefully avoided the term ‘malpractice’ during trial, Dr.
Schumacher’s testimony and the defendants’ closing argument clearly placed this
issue before the jury.” Id. (citation omitted).
In the present case, the same Dr. Schumacher testified effectively that the
surgery was unnecessary and that he would not have prescribed surgery in this
case. As stated before by this court, unnecessary surgery could constitute
medical malpractice. Further, in this case, the question and answer by Dr.
Schumacher not only violated the order in limine, but also clearly placed the
necessity of appellant’s surgery before the jury. See Dungan v.
Ford, 632 So. 2d 159 (Fla. 1st DCA 1994) (finding trial court reversibly
erred in admitting testimony that plaintiff received inappropriate medical
treatment for injuries sustained in an automobile accident).
surgery was unnecessary and that he would not have prescribed surgery in this
case. As stated before by this court, unnecessary surgery could constitute
medical malpractice. Further, in this case, the question and answer by Dr.
Schumacher not only violated the order in limine, but also clearly placed the
necessity of appellant’s surgery before the jury. See Dungan v.
Ford, 632 So. 2d 159 (Fla. 1st DCA 1994) (finding trial court reversibly
erred in admitting testimony that plaintiff received inappropriate medical
treatment for injuries sustained in an automobile accident).
The testimony of Dr. Schumacher relied on by appellant in his motion for new
trial is relevant to a harmless error analysis.2 The error is not harmless because it cannot be said
it is more likely than not that the improper testimony in violation of the order
in limine “did not influence the trier of fact and thereby contribute to the
verdict.” Special v. Baux, 79 So. 3d 755, 771 (Fla. 4th DCA 2011).
trial is relevant to a harmless error analysis.2 The error is not harmless because it cannot be said
it is more likely than not that the improper testimony in violation of the order
in limine “did not influence the trier of fact and thereby contribute to the
verdict.” Special v. Baux, 79 So. 3d 755, 771 (Fla. 4th DCA 2011).
During trial, Dr. Schumacher testified as follows:
Q Based on your examination, education and experience and training,
and based on your review of the medical records, do you have an opinion
within a reasonable degree of medical probability as to whether this auto
accident on 2-5-08 caused a minor soft tissue injury?
A Well, I would say yes, but that comes down to
subjectivity and the word of the person that gives it to you. If they say — and
many of us have had this, where you might have fallen or been in an accident or
what have you, where you have a stiff neck the next day. That’s what we call a
minor soft tissue injury.
They don’t necessarily show up on a x-ray or MRI scan, but we do
believe it is microscopic. And it does cause some spasm, but if there is no
radiology that shows an injury. That should spontaneously resolve or resolve
with some mild massage, what have you, in a couple weeks to a few months at the
latest.
(emphasis added).
In this case, Dr. Schumacher, the defense medical witness, conceded that
appellant had suffered soft tissue injury as a result of the 2008 accident.
However, the jury answered “No” to the first question on the verdict form, which
asked, “[W]as there negligence on the part of [defendant] which was the legal
cause of loss, injury or damage to [plaintiff].” Based on the testimony and
admission of Dr. Schumacher as to appellant’s resulting soft tissue injury, the
placing of inadmissible evidence before the jury in violation of the granted
motion in limine cannot be said to be harmless error. See Special, 79 So.
3d at 771.
appellant had suffered soft tissue injury as a result of the 2008 accident.
However, the jury answered “No” to the first question on the verdict form, which
asked, “[W]as there negligence on the part of [defendant] which was the legal
cause of loss, injury or damage to [plaintiff].” Based on the testimony and
admission of Dr. Schumacher as to appellant’s resulting soft tissue injury, the
placing of inadmissible evidence before the jury in violation of the granted
motion in limine cannot be said to be harmless error. See Special, 79 So.
3d at 771.
In conclusion, I would reverse based on the violation of the order in limine,
and I would find the admission of this evidence before the jury was not harmless
error.
and I would find the admission of this evidence before the jury was not harmless
error.
__________________
1In Nason, we noted “We have twice
certified to the Florida Supreme Court the question of whether Stuart v.
Hertz is still good law since the passage of the Tort Reform and Insurance
Act of 1986, which made each tortfeasor liable only for his own negligence.
See Caccavella v. Silverman, 814 So. 2d 1145 (Fla. 4th DCA 2002);
Letzter v. Cephas, 792 So. 2d 481 (Fla. 4th DCA 2001). The Florida
Supreme Court has declined to answer the certified questions in both cases.”
Nason, 33 So. 3d at 121 n.1.
certified to the Florida Supreme Court the question of whether Stuart v.
Hertz is still good law since the passage of the Tort Reform and Insurance
Act of 1986, which made each tortfeasor liable only for his own negligence.
See Caccavella v. Silverman, 814 So. 2d 1145 (Fla. 4th DCA 2002);
Letzter v. Cephas, 792 So. 2d 481 (Fla. 4th DCA 2001). The Florida
Supreme Court has declined to answer the certified questions in both cases.”
Nason, 33 So. 3d at 121 n.1.
2Because I would reverse based on the
violation of the order in limine, it is not necessary to address the merits of
the motion for new trial.
violation of the order in limine, it is not necessary to address the merits of
the motion for new trial.
* * *