40 Fla. L.
Weekly D2170aTop of Form

Torts
— Automobile accident — Rear end collision — Evidence — Trial court did not
abuse discretion by admitting evidence of payments made by defense or its
agents to defendant’s expert witnesses — Damages — Error to award damages for
future medical expenses where evidence did not establish that plaintiff was
reasonably certain to incur expenses for future medical treatment

SUZANNE VAZQUEZ, Appellant, v. MILADY MARTINEZ, Appellee. 5th District.
Case No. 5D13-1465. Opinion filed September 18, 2015. Appeal from the Circuit
Court for Orange County, Patricia A. Doherty, Judge. Counsel: Elizabeth C.
Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appellant. Nicholas A.
Shannin, of The Shannin Law Firm, P.A., Orlando, for Appellee.

(PERKINS, T. R., Associate Judge.) Suzanne Vazquez appeals a final
judgment entered in favor of Milady Martinez, following a jury trial in an
automobile negligence action. Although Ms. Vazquez raises a number of issues,
we write only to address two. We reverse the jury’s award of future medical
damages and affirm on all other issues.

In 2007, Ms. Martinez was stopped at a red light when her car was
rear-ended by Ms. Vazquez. Ms. Martinez claimed injuries from the accident and
sued Ms. Vazquez. During the trial, the trial court permitted Ms. Martinez to
present evidence that, over the past three years, payments totaling almost
$700,000, were made “by the defense or its agents” to Ms. Vazquez’s expert
witnesses. Ms. Vazquez argues that this evidence was irrelevant because she did
not have any direct financial relationship with any of the experts, and
instructing the jury on payments made by “representatives of the defendant” or
“defendant or its agents” improperly implied the existence of insurance.1

A party may attack the credibility of a witness by exposing a potential
bias. § 90.608(2), Fla. Stat. (2013). “A jury is entitled to know the extent of
the financial connection between the party and the witness, and the cumulative
amount a party has paid an expert during their relationship.” Allstate Ins.
Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999). Therefore, Florida courts
allow extensive discovery of financial information to assist counsel in
impeaching examining physicians and other experts by demonstrating that the
expert has economic ties to the insurance company or defense law firm. See
Fla. R. Civ. P. 1.280(b)(5)(A)(iii); Boecher, 733 So. 2d at 997 (“The
more extensive the financial relationship between a party and a witness, the
more it is likely that the witness has a vested interest in that financially
beneficial relationship continuing.”). This furthers the “truth-seeking
function and fairness of the trial.” Springer v. West, 769 So. 2d 1068,
1069 (Fla. 5th DCA 2000); see Morgan, Colling & Gilbert, P.A. v. Pope,
798 So. 2d 1, 3 (Fla. 2d DCA 2001) (“Limiting discovery of this information
would affect the truth-seeking function of a jury, for the failure to present
any ultimately admissible information would diminish the jury’s right to assess
the potential bias of the witness.”). On the other hand, introducing the
subject of insurance where insurance is not a proper issue constitutes
prejudicial error. Herrera v. Moustafa, 96 So. 3d 1020, 1021 (Fla. 4th
DCA 2012); Nicaise v. Gagnon, 597 So. 2d 305, 306 (Fla. 4th DCA 1992).

We find that the trial court did not abuse its discretion in permitting
the challenged evidence. Whether the party has a direct relationship
with any of the experts does not determine whether discovery of the doctor/law
firm relationship or doctor/insurer relationship is allowed. The purpose of the
rule is to expose any potential bias between a party and an expert. See
Boecher, 733 So. 2d at 997. Evidence of bias may be found in the financial
ties between all of the litigant’s agents, including the litigant’s law firm or
insurer and the expert. See Herrera, 96 So. 3d at 1021 (holding party
entitled to show financial ties between expert and litigant; admissible to show
defense firm had paid expert $330,000); Allstate Ins. Co. v. Hodges, 855
So. 2d 636, 640 (Fla. 2d DCA 2003) (explaining that number of times expert
testified on behalf of liability insurer and amount expert was paid as result
is directly relevant to expert’s bias); Springer, 769 So. 2d at 1069
(holding interrogatories sought discoverable information, even though insurer
was not a party). Moreover, the trial judge adeptly permitted evidence of
possible bias without disclosing the existence of insurance. We find no error.

However, we find that the jury’s $50,000 award for future medical expenses
is unsupported by the evidence. Where a plaintiff seeks damages for future
medical expenses, only medical expenses that are reasonably certain to be
incurred in the future are recoverable. Loftin v. Wilson, 67 So. 2d 185,
188 (Fla. 1953); Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA
2007). There must also be an evidentiary basis upon which the jury can, with
reasonable certainty, determine the amount of those expenses. Loftin, 67
So. 2d at 188; see GEICO Indem. Co. v. DeGrandchamp, 102 So. 3d 685, 686
(Fla. 2d DCA 2012). A mere possibility that certain treatment might be obtained
in the future cannot form the basis of an award of future medical expenses. Fasani
v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA 2010); Truelove, 954 So.
2d at 1288.

Here, both expert witnesses opined that Ms. Martinez did not need future
surgery or follow-up treatment. While the experts recognized that Ms. Martinez
might seek over-the-counter medications or chiropractic or physical therapy,
they did not believe that they would be beneficial. Hence, there is no
competent, substantial evidence establishing that Ms. Martinez was reasonably
certain to incur expenses for future medical treatment.

Accordingly, we reverse the jury’s award of $50,000 for future medical
expenses. On remand, and consistent with this opinion, the trial court shall
reduce the award of future medical expenses by the amount of $50,000. We affirm
the final judgment in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.
(EVANDER and EDWARDS, JJ., concur.)

__________________

1Ms. Vazquez also claims that the interrogatory answers, upon which the
evidence was based, did not reflect payments to the individual experts but to
the individual experts and/or their business entities, and, thus, were
misleading to the jury. Deficiencies in the way that payments are recorded
cannot be used to bar the admission of otherwise admissible evidence. See
generally Worley v. Cent. Fla. Young Men’s Christian Ass’n, 163 So. 3d
1240, 1249-50 (Fla. 5th DCA 2015) (determining that alleged costs and burdens
of compliance with discovery order did not prevent discovery; plaintiff could
seek reasonable compensation for costs at end of case, and court’s
truth-seeking function could not be thwarted by party arguing information would
be too costly to provide).