Fourth DCA Finds Testimony Establishes Reasonableness and Necessity

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In Walerowicz, the Fourth District Court of Appeals affirmed the trial court’s rulings regarding the sufficiency of evidence for past medical expenses and admission of expert testimony.  The court found the Plaintiffs testimony, the expert’s testimony, and the introduction of medical bills to be sufficient evidence to establish the reasonableness and necessity of medical bills.  The court found that the Defendant’s claim of prejudice by the nondisclosure of the Surgeon as an expert failed because the Defendant did not compel compliance with the trial preparation order, failed to ask for a Daubert hearing during trial or contemporaneously object to the Surgeon’s testimony and did not depose the Surgeon even though the Surgeon was listed as the treating physician on the witness list.

The Plaintiff was injured in an automobile accident caused by the Defendant.  At trial the Plaintiff testified and described various treatments she underwent because of the accident.  After a month of continued pain, she went to a medical group that performed treatment for several months.  After no progress was seen, an MRI was performed, and surgery was recommended by the medical group and another doctor.  The Plaintiff testified that more therapy was needed after surgery to improve the mobility and strength of her shoulder.  In addition, the Surgeon testified about the Plaintiff’s surgery, course of treatment, and described his medical bill, which totaled $58,000.  During a break in trial the medical bills were admitted into evidence.  Defendant alleged the Plaintiff did not prove reasonableness and necessity because she did not associate each medical bill to the injury sustained, except for the Surgeon’s bill.  The appellate court distinguished the case from Albertson’s Inc. v. Brady, because in that case, there was no description of treatment by either the experts or the plaintiff.  475 So. 2d 986, 988 (Fla. 2d DCA 1985).  Here, the court found that the Plaintiff met her burden of proving the reasonableness and necessity of the past medical bills by showing the relation of the bills to the injury through:  her detailed testimony of treatment, the Surgeon’s testimony, and the introduction of medical bills.

Upon setting the case for trial, the court entered a trial preparation order requiring the parties to disclose their expert witnesses ninety days before trial.  None of the Plaintiff’s disclosures designated the Surgeon as an expert, his area of expertise or provided his curriculum vitae, which was required by the order.  However, the court noted that the Plaintiff did state in the its witness list that the witnesses would be providing testimony as to permanency and causation.  Further, it listed the Surgeon as the treating physician.  Prior to trial, the Defendant objected to calling the Surgeon as an expert witness and was overruled.  However, at trial the Defendant did not renew his objection as to permanency.

On appeal, Defendant claimed he was prejudice as he would have deposed the Surgeon as an expert and challenged the Surgeon’s opinion under Daubert.  However, the appellate court noted that the defendant was not prejudiced because the Defendant did not depose of the Surgeon even though the Surgeon was listed as the treating physician on the witness list, the Defendant did not ask for a Daubert hearing during trial or contemporaneously object to the Surgeon’s testimony regarding permanency.  Further, Defendant was able to call his expert who refuted all the Surgeon’s findings.  Lastly, the court found the Defendant was also in violation of the trial preparation order.  Thus, the court found that the fairness of the proceeding was not substantially endangered, and the Surgeon should have been allowed to testify.  Binger v. King Pest Control, 401 So. 2d 1310, 1313–14 (Fla. 1981).

Citation:  Walerowicz v. Armand-Hosang, 43 Fla. L. Weekly D1165a (4th DCA May 23, 2018).

Tags:    Automobile accident, Evidence.

(This was prepared by Bryan Siddique. For more information, please contact Bryan at bryans@kulaw.com)