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On July 24, 2013, the 4th DCA affirmed a final judgment in favor of the plaintiff in Disla v. Blanco, 38 Fla. L. Weekly D1582a (Fla. 4th DCA July 24, 2013). The 4th DCA concluded that the plaintiff had failed to properly preserve the evidentiary issues for appeal and that the trial court had not otherwise abused its discretion with respect to evidentiary issues addressed on appeal.

In this automobile negligence case in which the defendant driver suffered a seizure and lost control of the vehicle, the passenger plaintiff appealed a final judgment in her favor in the amount of $10,532.50 plus costs. The jury returned a verdict in the amount of $205,325 that was reduced by the amount of PIP benefits paid and the 90% comparative fault allocated to the plaintiff for her failure to wear a seatbelt.

The plaintiff raised five points on appeal including: (1) error in denying a challenge for cause during voir dire and failing to perform a complete Melbourne analysis upon defendant's peremptory challenge of another juror; (2) error in permitting defendant to cross-examine plaintiff's treating neurosurgeon regarding his refusal to accept insurance, Medicare reimbursement rates and extensive practice in a type of surgery of disputed efficacy; (3) error in allowing presentation of an undisclosed opinion by a defense expert; (4) error in preventing impeachment of defendant's seatbelt expert by comparing plaintiff's injuries to defendant's injuries; and (5) error in deeming defendant's medical records inadmissible.

The 4th DCA held that the plaintiff had failed to preserve issues regarding the cause challenge by failing to identify the objectionable juror who would have been challenged or who was seated and by failing to renew the objection prior to the swearing of the jury. Further, the trial court did not abuse its discretion regarding cross-examination of plaintiff's treating neurosurgeon when the cross-examination was relevant to the doctor's testimony on direct examination of his extensive practice and qualifications as well as the reasonableness of his charges.

The trial court properly allowed the defense expert to render opinions regarding the speed or range of delta forces involved in the accident during re-direct examination after plaintiff opened the door to such testimony on cross-examination and the trial court did not abuse its discretion regarding comparison of plaintiff's injuries to defendant's injuries because plaintiff had made no proffer with respect to this issue. Additionally, there was no error with respect to ruling that the defendant's medical records were inadmissible when the verdict was consistent with the excluded evidence.




This summary was prepared by Bryan Snyder of our firm.


Bryan Snyder

 

 


38 Fla. L. Weekly D1582a

 

Torts -- Automobile accident -- Plaintiff/passenger injured when driver had seizure and lost control of vehicle -- Jurors -- Challenges -- Claim that trial court erred in denying challenge for cause to one juror and in failing to conduct required analysis when defense exercised peremptory challenge to an African-American juror not preserved for appellate review -- Cross-examination -- No error in overruling objections to defendant's cross-examination of plaintiff's neurosurgeon regarding his refusal to accept insurance, Medicare reimbursement rates, and his extensive practice in a type of surgery which had disputed efficacy, but which was not the surgery performed in this case -- Evidence -- Expert -- No error in permitting defendant, on redirect examination, to question defendant's seatbelt expert regarding speed or range of delta forces in the accident, an opinion not given in expert's deposition, where plaintiff opened the door to this line of questioning during cross-examination of this expert -- No abuse of discretion in preventing plaintiff from questioning seatbelt expert about injuries to driver, who was wearing his seatbelt at time of crash, on ground that line of questioning was beyond scope of direct examination and expert was not familiar with driver's injuries -- Any error in disallowing introduction of medical record which would support plaintiff's claim that driver previously knew about his seizure disorder would not require reversal where jury found driver negligent, a verdict consistent with the excluded evidence

MAYURIS DISLA, Appellant, v. JOSEPH BLANCO, Appellee. 4th District. Case No. 4D11-2556. July 24, 2013. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John T. Luzzo, Judge; L.T. Case No. 06-2192 CACE. Counsel: Andrew A. Harris of Burlington & Rockenbach, P.A., and Jason D. Weisser of Schuler, Halvorson, Weisser & Zoeller, P.A., West Palm Beach, for appellant. Daniel J. Santaniello B.C.S. and Doreen E. Lasch of Luks, Santaniello, Petrillo & Jones, Fort Lauderdale, for appellee.

(Warner, J.) Mayuris Disla appeals a final judgment in her claim for injuries she suffered as a passenger in an auto accident, in which the jury found her to be 90% negligent for failing to wear a seatbelt and awarded her substantially less in medical expenses than she claimed. She raises multiple issues of trial court error, including: 1) error in denying a challenge for cause and in conducting a Melbourne1 challenge in jury selection; 2) abuse of discretion in permitting admission of irrelevant matters on cross-examination of plaintiff's treating physician; 3) abuse of discretion in allowing presentation of undisclosed opinions by a defense expert; 4) abuse of discretion in preventing impeachment of the defense expert on seatbelt by comparing the plaintiff's injuries to the defendant's injuries; and, 5) abuse of discretion in denying defendant's medical records from being admitted. We conclude that the issues either were not properly preserved for appeal or were not an abuse of discretion.

The accident giving rise to this incident occurred when defendant Joseph Blanco was driving plaintiff Disla home late one night. Blanco had a seizure and lost control of the vehicle, going over two curbs, swiping a tree, and running into a house. Disla suffered a broken neck in the accident. She had cervical fusion surgery on her neck. Later, her attorney referred her to a pain management specialist, who then referred her to a neurosurgeon for a second larger fusion surgery. The three main issues at trial were: 1) whether the accident was the result of Blanco's loss of consciousness due to his seizure, of which condition he was unaware, thus negating his negligence; 2) whether Disla was not wearing a seatbelt which significantly increased her injuries; and 3) the reasonable necessity and reasonable cost of Disla's past and future treatment.
At trial, Disla presented her medical experts, and Blanco presented his experts, including a seatbelt expert; however, there was little disagreement as to what happened in the accident. The jury found both parties to be the legal cause of damage to Disla, but apportioned 90% of the fault to Disla and 10% to Blanco. The jury awarded $115,325 in past and $40,000 in future economic damages, as well as $25,000 in each past and future non-economic damages, for total damages of $205,325. After allocating the percentages of fault and reducing the amount by PIP benefits, the court entered judgment in favor of Disla for $10,532.50, plus costs.

Disla filed this appeal raising multiple issues. She first claims that the court erred in denying a challenge for cause to one juror and erred by failing to make a complete Melbourne analysis when the defense exercised a peremptory challenge to another juror, an African-American. Neither claim was properly preserved for appellate review. Although counsel requested an additional peremptory challenge from the judge after he had exhausted his allowed challenges, he failed to identify an objectionable juror whom he would have challenged or who was seated. "[T]o preserve for appellate review a claim that the trial court improperly denied a cause challenge to a juror, a [party] must exhaust his peremptory challenges, request an additional peremptory challenge from the court, and demonstrate that an objectionable juror was seated." Jenkins v. State, 824 So. 2d 977, 981 (Fla. 4th DCA 2002); see also Frazier v. Wesch, 913 So. 2d 1216, 1217 (Fla. 4th DCA 2005). As to the Melbourne challenge, this too was not preserved, because counsel failed to renew his objection to the defense's exercise of the peremptory challenge prior to the swearing of the jury. See Melbourne, 679 So. 2d at 765.

In her next issue, Disla claims that the trial court erred in overruling objections to defense counsel cross-examining her neurosurgeon regarding his refusal to accept insurance, Medicare reimbursement rates, and his extensive practice in a type of surgery of disputed efficacy, but which was not the surgery performed in this case. Counsel objected on the grounds of relevance and materiality. A trial court has broad discretion in determining the relevance of evidence, and its rulings will not be disturbed absent an abuse of discretion. See Jacobs v. State, 962 So. 2d 934, 936 (Fla. 4th DCA 2007) (citing Heath v. State, 648 So. 2d 660, 664 (Fla. 1994)); Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001).2 We cannot conclude that the trial court abused its discretion in allowing the defense to question the doctor on these subjects. The doctor had testified on direct to his extensive practice and qualifications, and the questions regarding the types of surgery he performed were relevant to that issue. The fact that he did not accept insurance was brought up in connection with the extent of the doctor's extensive medical litigation practice. Finally, the discussion of Medicare and its rates was relevant to the reasonableness of the doctor's charges. See, e.g., § 627.736(5), Fla. Stat. (2006). Furthermore, the trial court actually sustained several of counsel's objections to these questions, yet counsel never moved for a mistrial, thus failing to preserve those objections for appeal.

Disla complains that Blanco's expert on seatbelts was permitted to give an opinion he had not disclosed in his deposition, which she argued constituted an abuse of discretion, relying on Menard v. University Radiation Oncology Associates, LLP, 976 So. 2d 69, 71 (Fla. 4th DCA 2008) ("[I]t is an abuse of discretion to allow a party at trial to change . . . the substance of testimony given in pretrial discovery."). On the affirmative defense of failure to use a seatbelt, Blanco presented an expert on biomechanics who gave the opinion that Disla was not wearing her seatbelt, based upon her injuries and the biomechanics of the accident. Disla claims that the expert's testimony amounted to a surprise opinion regarding the speed or range of delta forces in the accident, an opinion which he had not given in his deposition. While defense counsel sought to elicit this testimony on direct examination, the trial court sustained Disla's objection. However, during cross-examination, Disla's counsel asked the expert multiple questions regarding speed, to which the expert responded that his opinions were based upon a range of rates of change of speed, or delta-v's. On redirect, defense counsel again asked the expert what his range of delta-v's for the accident was, to which the expert responded "15-18 miles per hour." Disla's counsel again objected, but the trial court overruled the objection on the ground that Disla's cross-examination opened the door to the question and answer. We agree. Counsel's cross-examination invited the answers given by the expert that his opinions were based upon a range of speed. Asking in rebuttal what that range was merely gave the jury a more complete answer to the questions asked on cross.

In addition, we fail to see how this was a change in opinion. At his deposition, the expert testified that he did not know the exact speed of the vehicle, but he did testify that the impact was not a minor one. At trial, he testified on direct that the impact was a moderate speed impact, which was thus consistent with his testimony in his deposition that the impact was not minor. His testimony to the range of speed on redirect at trial attempted only to explain, rather than change, his deposition testimony and his prior direct testimony.

Moreover, Disla did not establish how she was prejudiced by the introduction of this evidence. The speed of the vehicle or the change in delta forces was not a controverted issue at trial. The estimate of speed was relatively consistent with Disla's own expert's assumption in developing his opinion that, based upon a search of a national database, Disla could have received the same injuries even if she had been wearing her seatbelt. However, Disla apparently decided not to have her expert testify.3 For all these reasons, we conclude that the court did not reversibly err in its rulings, and no procedural prejudice has been shown.

To attempt to counter the expert's testimony that Disla would not have suffered any serious injury had she been wearing her seatbelt, Disla attempted to cross-examine the expert by asking him about the injuries to Blanco, who was wearing his seatbelt in the crash. The trial court sustained the defense objection to the line of questioning on the ground that it was beyond the scope of direct examination, and the expert was not familiar with the injuries to Blanco.

Limitations on cross-examination are within the sound discretion of the trial court. Poland v. Zaccheo, 82 So. 3d 133, 136 (Fla. 4th DCA 2012). It is unclear from the record exactly what Disla sought to prove in this exchange with the expert. No proffer was made of what injuries Blanco suffered or how they would impact the opinions of the expert. Without this, we cannot conclude that the trial court abused its discretion in disallowing this line of questioning.

We need not dwell long on Disla's claim that the trial court erred in disallowing entry of a medical record which would support her claim that Blanco knew about his seizure disorder. The court instructed the jury that it should find Blanco not negligent if he suffered a sudden loss of consciousness, but that Blanco defendant could be negligent if he knew before the accident that he could suffer such a loss of consciousness. This finding was consistent with a recorded statement that Blanco had given to an insurance investigator after a prior accident, in which Blanco admitted to being concerned that the prior accident revealed a seizure disorder for which he would have to continue treatment. As the jury found Blanco negligent, it obviously also found that he had knowledge of his seizure disorder. Thus, reversal is not required where the verdict is consistent with the excluded evidence.

We find no merit in the remaining issues on appeal.

For the foregoing reasons, we affirm the final judgment. (Gross, J., and Stone, Barry J., Senior Judge, concur.)

__________________

1. Melbourne v. State, 679 So. 2d 759 (Fla. 1996).

2. Although on appeal Disla argues that references to insurance and the like violated the collateral source rule, she did not make this argument at trial. Indeed, it was clear that Disla had no insurance and was liable for all charges to her doctors.

3. We are told in the initial brief that he didn't testify because they ran out of time, but there is nothing in the record to support that statement. Apparently, counsel intended to read his deposition, as the court and counsel reviewed multiple objections made during the deposition. Nevertheless, the record contains no reading of the deposition or live testimony of the expert.






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