38 Fla. L. Weekly D2568c
Appeals — Certiorari — Interlocutory order of trial court
striking an expert witness is not amenable to certiorari review because it is
the sort of trial error that usually does not cause irreparable harm, and can be
remedied on appeal
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. BILLIE JEAN
PACE, M.D., Respondent. 5th District. Case No. 5D12-4957. Opinion filed December
6, 2013. Petition for Certiorari Review of Order from the Circuit Court for
Seminole County, Marlene M. Alva, Judge. Counsel: Dale T. Gobel and Michael V.
Hammond, of Gobel Flakes. LLC, Orlando, for Petitioner. Nicholas A. Shannin, of
Shannin Law Firm, P.A., Orlando, for Respondent.
(PER CURIAM.) State Farm Mutual Automobile Insurance Company [“State Farm”]
petitions for a writ of certiorari to review an order of the trial court
limiting the testimony of its forensic accounting expert, Robert Morrison
This petition arises out of a June 2010 car crash between plaintiff, Dr.
Billie Jean Pace [“Pace”], and defendant, Todd Shamlaty, in Casselberry. Pace
claimed that the defendant negligently drove his car so that it rear-ended her
car and caused her injury. In her suit, Pace claimed that she:
suffered bodily injury including a permanent injury to the body as a
whole, pain and suffering of both a physical and mental nature, disability,
physical impairment, disfigurement, mental anguish, inconvenience, loss of
capacity for the enjoyment of life, aggravation of an existing condition,
expense of hospitalization, medical and nursing care and treatment, loss of
earnings, loss of ability to earn money and loss of ability to lead and enjoy a
normal life. The losses are either permanent or continuing and Plaintiff will
suffer the losses in the future.
Pace is a medical doctor practicing in Altamonte Springs, Florida, under the
group name of Altamonte Women’s Center [“AWC”]. Her practice is organized as a
corporation in which she and one other physician are essentially partners.
Pace’s primary damages claims below are claims for lost income and loss of
ability to earn income. Pace testified in her deposition that since her
accident, she is unable to do more than two procedures a day, unless it is an
emergency. The na&ium1;ve reader might assume that a damage claim so
specific arising in the context of a small medical practice operating as a
corporation would be simplicity itself to document and to calculate and for the
defense to discover and critique. But that conclusion would be wrong. What
should have been simple has become a protracted and pointless1 discovery nightmare. The problems run the gamut from
misidentified witnesses, redacted documents, scheduling disputes, corporate
representatives with little or no knowledge of the relevant facts and documents,
through incomplete and delayed disclosure of relevant documents.
On October 10, 2012, the trial court held a hearing on several outstanding
motions. At that hearing, the trial court ordered that the deposition of the
person at AWC with the most knowledge about the documents referenced in the
report of Frederick Raffa [“Raffa”], Pace’s expert, must take place before
Raffa’s deposition. The judge also ordered that the designated person must
produce all of the documents requested by State Farm.
THE COURT: What I’m saying is items that exist need to be produced
and simply because she handed them to her accountant or put them in her
neighbor’s garage doesn’t mean she can’t produce them. They need to be produced.
She has access and control over them and they’re readily available to her, then
she can produce them.
Defense counsel confirmed:
I just want to make sure I’ve got Your Honor’s ruling correct. We’re
entitled to the documents. We’re entitled to a deposition with the person with
the most knowledge. We’re entitled to that deposition before Raffa. We’re
entitled to that deposition before Mr. Febo.
THE COURT: That’s correct.
State Farm received Pace’s witness list and evidence schedule related to the
upcoming trial on October 2, 2012. That witness list identified Mr. Febo as
Pace’s accountant. However, when State Farm deposed Mr. Febo on October 11, he
disclosed that he is not Pace’s personal accountant, but rather is the
accountant for AWC and a related business entity.
On October 12, 2012, State Farm’s counsel received two disks from Mr. Febo
containing about 1,400 pages of documents. Pace also produced AWC’s files.
However, State Farm claimed that those QuickBooks files were password protected
and could not be accessed.
On October 18, 2012, State Farm received Pace’s amended witness list and
evidence schedule related to the upcoming trial of this case. That witness list
again identified Mr. Febo as Pace’s accountant.
On October 19, 2012, State Farm’s counsel sent a letter to Pace’s counsel,
advising him that their forensic expert, Morrison, did not yet have any opinions
because Pace had not produced the documentation he needed to form those
On October 22, 2012, Pace’s counsel deposed Morrison. However, Morrison had
formed no opinion because he still did not have complete copies of Pace’s
personal tax returns or any of the requested documents from AWC, including
evidence of the number of surgical procedures performed by Pace.
On October 23, 2012, State Farm again took the deposition of the person at
AWC with the most knowledge about the documents referenced in Raffa’s expert
report. Again Pace provided Maureen Henson [“Henson”] — the same person who
previously had no knowledge about the designated areas of inquiry — as the
person with the most knowledge. She produced no documents, relying on documents
produced by accountant Febo on October 12, 2012.
During the course of the discussion about the produced disks, Henson
disclosed that AWC maintains surgery notebooks that detail all of the procedures
performed by both doctors employed by AWC. Henson identified these “surgery
notebooks,” as containing the patient, procedure, insurance, and payment
information for the surgeries performed by Pace at the hospital or the surgery
center. However, the supporting documentation regarding the lost income claim
summaries, including specifically the “surgery notebooks,” were not included.
On October 29, 2012, Pace served her second amended witness list and evidence
schedule. That witness list identified Duerr as Pace’s personal accountant. On
November 2, 2012, Raffa issued his amended expert report.
On November 8, 2012, State Farm deposed the person at Florida Hospital with
the most knowledge about the number of procedures that Pace had performed there
for the time period relevant to this case. On the same day, State Farm deposed
Duerr, Pace’s personal accountant. State Farm claims that, as of the date of
those depositions, it, for the first time, had available some of the documents
that its forensic expert, Morrison, needed to formulate his opinions in response
to Raffa’s now amended expert report.
Four days later, on November 12, 2012, Pace filed a motion to strike Morrison
because he had no opinions as of the date of his October 22, 2012, deposition.
On November 14, 2012, State Farm filed its response to the motion to strike, in
which it explained that Morrison had no opinions as of the date of his scheduled
deposition because Pace and AWC had refused to produce the information needed to
analyze Pace’s wage claims, and, thereby, formulate his opinions and rebut the
opinions of Raffa. On November 26, 2012, the trial court ruled on Pace’s motion
to strike, ruling that Morrison’s testimony at trial would be limited to the
testimony provided in his October 22, 2012, deposition. State Farm contends in
its petition that this ruling has the practical effect of striking its only
witness retained to rebut Raffa’s opinions regarding Pace’s claims for lost
income and loss of ability to earn income — and this will cause it irreparable
harm irremediable on appeal.
On the face of it, given all the foregoing, the trial court’s limitation on
the testimony of Morrison is surprising. However, even if we were confident that
the trial court had erred by limiting the testimony of Morrison, we conclude
that we lack certiorari jurisdiction. We recently reaffirmed in Bill Kasper
Construction v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012), that an
interlocutory order of the trial court striking an expert witness is not
amenable to certiorari review because it is the sort of trial error that usually
does not cause irreparable harm, and can be remedied on appeal.
State Farm contends that Kasper is not controlling here because,
unlike in Kasper, where the aggrieved party could proffer the stricken
testimony, in this case, State Farm may not do this because it has not been
given the discovery it requires for Morrison to formulate an opinion for State
Farm to proffer. We disagree. If, on direct appeal, this Court concludes that
the trial court erred in prohibiting Morrison from testifying about any opinions
formulated after October 22, the harm is evident, with or without a proffer, and
State Farm will be entitled to a remedy, unless Pace can show the error was
harmless. Kasper, 93 So. 3d at 1064
(Torpy, J., concurring). What’s more,
this case is similar to Kasper in that State Farm finally obtained
significant discovery necessary for Morrison to formulate an opinion after
October 22, and there is no reason to expect that State Farm will not eventually
receive, through discovery, whatever facts are relevant to Pace’s loss of income
claim. This should allow a more than adequate proffer. Even if the trial court
does not alter its interlocutory ruling and Morrison is not allowed to testify
to any opinions formed after October 22, State Farm can show what Morrison’s
opinion would have been had he been allowed to testify.
PETITION for WRIT of CERTIORARI DENIED. (GRIFFIN, SAWAYA and EVANDER, JJ.,
1Maybe not so pointless, given the order at
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