Rule Changes and Recent Case Law

Rule Changes

Amendments To Florida Rule Of Civil Procedure 1.720
Attendance at Mediation Changes in Requirements for Insurance Company Representative Attendance

Revisions to Florida PIP Statute (§627.736)
Requirements for Timely Treatment Proposed law requiring treatment within 14 days of the accident and limiting benefits for non-emergency treatment.

Recent Case Law

Aquila v. Brisk Transportation, L.P., 2015 WL 4549484
It is reversible error for a trial judge to deny the use of a peremptory challenge to backstrike in jury selection before the panel is sworn. However, counsel must timely object and identify the particular juror on the selected panel who is subject to backstriking in order to preserve the error.

One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 4D14-424 (Fla. 4th DCA May 20, 2015);
Fourth DCA upholds Assignment of Benefits (AOB) in the context of property insurance claims

Pratt v. Weiss – Case No. SC12-1783, 2015 WL 1724574 (Fla. Supreme Court April 16, 2015) and Audiffred v. Arnold – Case No. SC12-2377, 2015 WL 1724250 (Fla. Supreme Court April 16, 2015)
Apportionment in Proposals for Settlement

Northwoods Sports Medicine v. State Farm and USAA - Case No. 4D11-1556 and 4D11-3796 (Fla. 4th DCA 2014)
Courts should not distinguish post-suit exhaustion of benefits from pre-suit exhaustion of benefits

Lenart v. Ocwen Fin. Corp. 869 So. 2d 588 (Fla. 3rd DCA 2004)
Lienholder who chooses the remedy of foreclosing on property (after loss), limits its interest to the amount of the deficiency judgment, plus interest.

Durse v. Henn, Case No. 4D09-1659 (Fla. 4th DCA 2011)
Plaintiff can admit full amount of medical bills

Katzman and Advanced Orthopaedics v. Rediron, Martin and Minjares Case No. 4D11-1290 (Fla. 4th DCA 2011)
Defendant can obtain discovery from non-party treating physician

State Farm v. Bowling Case No. 2D10-1505 (2d DCA July 2011)
Admissibility of testimony from medical billing expert

Amendments To Florida Rule Of Civil Procedure 1.720.

Supreme Court of Florida. Case No. SC10-2329. November 3, 2011. Original Proceeding -- The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy. Counsel: Judge William D. Palmer, Chair, Committee on Alternative Dispute Resolution Rules and Policy, Fifth District Court of Appeal, Daytona Beach, for Petitioner. Donald E. Christopher, Chair, Civil Procedure Rules Committee, Orlando, and John F. Harkness, Jr., The Florida Bar, Tallahassee; and Patrick S. Scott of Gray Robinson, P.A., Fort Lauderdale, Responding with comments.

(PER CURIAM.) This matter is before the Court for consideration of proposed amendments to Florida Rule of Civil Procedure 1.720 (Mediation Procedures). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee on Alternative Dispute Resolution Rules and Policy (Committee) has filed a petition to amend rule 1.720. The amendments proposed by the Committee revise the requirements in rule 1.720 pertaining to the appearance of a party or a party's representative at a mediation conference. The proposals are in response to the Committee's charge to monitor court rules governing alternative dispute resolution procedures and to make recommendations as necessary to improve the use of mediation. See In re Committee on Alternative Dispute Resolution Rules and Policy, Fla. Admin. Order No. AOSC03-32 (July 8, 2003).

The Committee's proposals were approved by The Florida Bar's Civil Procedure Rules Committee. The Court published the proposed amendments for comment. Two comments were filed and the Committee filed a response.

Having considered the Committee's petition, the comments filed, and the Committee's response, we adopt the amendments to rule 1.720 as proposed by the Committee, with a minor modification to new subdivision (e) (Certification of Authority). We modify new subdivision (e) to provide that the written notice be served on all parties participating in a mediation conference.

Accordingly, Florida Rule of Civil Procedure 1.720 is hereby amended as set forth in the appendix to this opinion. New language is indicated by underscoring, and deletions are indicated by struck-through type. The Committee notes are offered for explanation only and are not adopted as an official part of the rule. The amendments shall become effective January 1, 2012, at 12:01 a.m.

It is so ordered. (CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.)


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(a) Interim or Emergency Relief.

(b) Sanctions for Failure to Appear. Appearance at Mediation. If a party fails to appear at a duly noticed mediation conference without good cause, the court upon motion shall impose sanctions, including an award of mediator and attorneys' fees and other costs, against the party failing to appear. If a party to mediation is a public entity required to conduct its business pursuant to chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity. Otherwise, unless Unless otherwise permitted by court order or stipulated by the parties or changed by order of the court in writing, a party is deemed to appear at a mediation conference if the following persons are physically present:

(1) The party or it's a party representative having full authority to settle without further consultation; and

(2) The party's counsel of record, if any; and

(3) A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to settle in an amount up to the amount of the plaintiff's last demand or policy limits, whichever is less, without further consultation.

(c) Party Representative Having Full Authority to Settle. A “party representative having full authority to settle” shall mean the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing herein shall be deemed to require any party or party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.

(d) Appearance by Public Entity. If a party to mediation is a public entity required to operate in compliance with chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity.

(e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).

(f) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys' fees, and costs, against the party failing to appear. The failure to file a confirmation of authority required under subdivision (e) above, or failure of the persons actually identified in the confirmation to appear at the mediation conference, shall create a rebuttable presumption of a failure to appear.

(g) Adjournments. [NO CHANGE]

(h) Counsel. [NO CHANGE]

(i) Communication with Parties or Counsel. The mediator may meet and consult privately with any party or parties or their counsel.

(j) Appointment of the Mediator. [NO CHANGE]

(k) Compensation of the Mediator. [NO CHANGE]

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Committee Notes

2011 Amendment. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. New language in subdivision (c) now defines “a party representative with full authority to settle” in two parts. First, the party representative must be the final decision maker with respect to all issues presented by the case in question. Second, the party representative must have the legal capacity to execute a binding agreement on behalf of the settling party. These are objective standards. Whether or not these standards have been met can be determined without reference to any confidential mediation communications. A decision by a party representative not to settle does not, in and of itself, signify the absence of full authority to settle. A party may delegate full authority to settle to more than one person, each of whom can serve as the final decision maker. A party may also designate multiple persons to serve together as the final decision maker, all of whom must appear at mediation.

New subdivision (e) provides a process for parties to identify party representative and representatives of insurance carriers who will be attending the mediation conference on behalf of parties and insurance carriers and to confirm their respective settlement authority by means of a direct representation to the court. If necessary, any verification of this representation would be upon motion by a party or inquiry by the court without involvement of the mediator and would not require disclosure of confidential mediation communications. Nothing in this rule shall be deemed to impose any duty or obligation on the mediator selected by the parties or appointed by the court to ensure compliance.

The concept of self determination in mediation also contemplates the parties' free choice in structuring and organizing their mediation sessions, including those who are to participate. Accordingly, elements of this rule are subject to revision or qualification with the mutual consent of the parties.


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Revisions to Florida PIP Statute (§627.736) - Requirements for Timely Treatment

In an effort to reduce fraud, the Florida Legislature recently passed House Bill 119, which makes sweeping changes to the prior PIP Statute. The bill is expected to be signed into law by Governor Rick Scott, and will go into effect on July 1, 2012. The link below shows the new changes.

The new law will require an accident victim to obtain treatment within 14 days of the accident. Such treatment can take place in an ambulance, hospital, or from a physician, osteopathic physician, chiropractor, or dentist. The amount of benefits ($10,000) has not changed, however that amount is only available if the insured has an “emergency medical condition,” as determined by a physician, osteopathic physician, dentist, supervised physician’s assistant, or advanced registered nurse practitioner. Otherwise, the benefits are limited to $2,500.

Massage therapy and acupuncture are no longer available for reimbursement. There is still no cap on attorney’s fees.

The complete bill can be found at:

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In Aquila v. Brisk Transportation, L.P., 2015 WL 4549484, a recent case involving backstriking in jury selection, the Fourth District Court of Appeals reminded us of the importance of timely preserving error in trial.

It is well-established in Florida that a trial judge may not limit the use of peremptory challenges by restricting or preventing “backstriking” as long as the party challenges the juror before the jurors are sworn. Tedder v. Video Electronics, Inc., 491 So.2d 533 (Fla. 1986), Jackson v. State, 464 So.2d 1181 (Fla. 1985). Counsel may backstrike into the main panel even if the main panel has been accepted and the parties have selected the alternates. See Lottimer v. North Broward Hospital Dist., 889 So.2d 165 (Fla. 4th DCA 2004) citing Van Sickle v. Zimmer, 807 So.2d 182 (Fla. 2d DCA 2002).

In Aquila, the parties tentatively accepted six jurors. Before the six jurors were sworn, one juror was dismissed when it was determined he could not serve due to interference with a pre-paid vacation. The parties agreed to move the first proposed alternate juror into the jury panel. However, when both plaintiff and defendant wanted to exercise their right to backstrike jurors, the court refused to allow any backstriking. Plaintiff’s counsel insisted on the right to backstrike, but did not identify any particular juror on the selected panel who was subject to backstriking. When the court swore in the five selected jurors, plaintiff’s counsel noted his objection to the denial of the backstriking. However, as jury selection continued and two additional alternates were selected (with the first alternate moving into the jury panel), Plaintiff’s counsel did not request to backstrike a member of the panel that had previously been sworn. Plaintiff’s counsel then accepted the jury without mentioning his prior objection to the disallowance of backstriking.

The Fourth District agreed the trial court erred in refusing to allow backstriking of the panel originally selected, but ruled that the issue was not preserved. The Court explained that the purpose of identifying a juror upon which a peremptory challenge would have been used, had backstriking been allowed, is to alert the trial court that the party is not satisfied with the panel as it stands. The Court held, “Unless the trial court is advised that there is still an objectionable juror on the panel, the trial court has the right to assume that by accepting the jury, the party is satisfied with the panel members. Here, after an additional three hours of jury selection, the plaintiff’s attorney voiced no further objection to any of the jurors and accepted the jury. Therefore, the trial court, and we, can assume that the was satisfied with the panel members. Consequently, the issue was not preserved.”

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One Call Prop. Servs. Inc. v. Sec. First Ins. Co., 4D14-424, 2015 WL 2393353 (Fla. 4th DCA May 20, 2015); ASAP Restoration & Const., Inc. v. Tower Hill Signature Ins. Co., No. 4D13-4174, 2015 WL 2393302 (Fla. 4th DCA May 20, 2015) and Emergency Servs. 24, Inc. v. United Prop. & Cas. Ins. Co., No. 4D14-3320, 2015 WL 2393357 (Fla. 4th DCA May 20, 2015)

In One Call, 2015 WL 2393353 (Fla. 4th DCA May 20, 2015), the insured's alleged assignee brought an action against the homeowners insurer to recover for breach of contract for failing to adequately compensate the assignee for water removal services. The insurer moved to dismiss the action arguing that the contractor did not have standing to sue under the insurance policy and the assignment was invalid. The trial court agreed, and dismissed the case.

The Fourth DCA reversed the trial court's dismissal finding that an insured may validly assign a post-loss claim even when the insurance policy contains a provision barring assignment of the policy. The court rejected the insurer's argument that the loss payment provision creates a contractual bar to assignment, stating that "a standard loss payment provision in an insurance policy does not preclude an assignment of a post-loss claim, even when payment is not yet due." The court found that an assignable right to benefits under an insurance policy accrues on the date of the loss, even though payment is not yet due under the loss payment clause.

Additionally, the court found that an assignment cannot be invalidated on the theory that it attempts to assign a contractual "duty to adjust" from the insured to a third party. Although the policy language contemplates the insured's participation in the adjustment process, it does not impose a duty on the insured to adjust the loss. In sum, the court found that "as long as the insured complies with all of the policy conditions, a third party assignee may recover benefits on a covered loss."

The Fourth DCA also reversed the trial court decisions in both ASAP Restoration & Construction and Emergency Servs. 24, Inc. Relying on its recent decision in One Call, supra, the court found that the trial court erred in finding that the anti-assignment clause and the loss payment provision precluded the assignment. ASAP Restoration & Const., Inc. v. Tower Hill Signature Ins. Co., 2015 WL 2393302, (Fla. 4th DCA May 20, 2015) & Emergency Servs. 24, Inc. v. United Prop. & Cas. Ins. Co., 2015 WL 2393357, (Fla. 4th DCA May 20, 2015).

However, in these cases the Fourth DCA declined to reach the insurer's other challenges to the assignment. These included 1) whether the assignment violates the public adjuster statute or the statute governing insurable interests, 2) whether the language of the assignment was so broad that it constituted an assignment of the entire policy in violation of the anti-assignment clause, or 3) whether the assignment is a partial assignment that cannot be enforced against the insurer without its consent. These issues will be addressed by the trial court on remand.

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Pratt v. Weiss, Case No. SC12-1783, 2015 WL 1724574

Pratt v. Weiss – Case No. SC12-1783, 2015 WL 1724574 (Fla. Supreme Court April 16, 2015) and Audiffred v. Arnold – Case No. SC12-2377, 2015 WL 1724250 (Fla. Supreme Court April 16, 2015)

The Florida Supreme Court has issued two recent decisions that make it clear that statutory proposals for settlement must be apportioned whenever there are multiple plaintiffs or multiple defendants seeking to have their claims or the claims against them resolved.
Before we get into these two cases, we want to point out that one exception to this apportionment requirement still remains. This is the exception for vicariously liable parties. A joint, unapportioned, proposal for settlement can still be made by or to a party whose alleged liability is strictly vicarious.

The first case is Pratt v. Weiss, 40 Fla. L. Weekly S201 (April 16, 2015). In this case, Ancel Pratt Jr. brought a medical malpractice suit against a hospital, general partners that owned and controlled the hospital, and physicians. The complaint named FMC Hospital Ltd. d/b/a Florida Medical Center, and FMC Medical Inc. d/b/a Florida Medical Center, as the two entities alleged to own and control the hospital known as the Florida Medical Center.

FMC Hospital Ltd. and FMC Medical Inc. served Pratt with a statutory proposal for settlement in the amount of $10,000. The proposal for settlement stated, “Defendant Florida Medical Center’s Proposal for Settlement/Offer of Judgment to the Plaintiff, Ancel Pratt, Jr., Individually.” Pratt did not accept the offer and a jury returned a verdict adverse to Pratt. The trial court entered final judgment in favor of FMC Hospital and FMC Medical. FMC Hospital and FMC medical filed a motion for attorney’s fees and costs pursuant to section 768.79 and rule 1.442, which was granted by the trial court.

On appeal, the Fourth DCA affirmed the decision of the trial court to award FMC Hospital and FMC Medical attorney’s fees and costs. The Fourth DCA found that because the offer was made on behalf of the single hospital entity that was allegedly responsible for the injury, it complied with the requirements in section 768.79 and rule 1.442.

The Florida Supreme Court disagreed with the 4th DCA and quashed the decision. The Supreme Court found that although the offer was titled, “Defendant, Florida Medical Center’s, Proposal for Settlement/Offer of Judgment,” the wording of the proposal unambiguously refers to two offerors- FMC Hospital and FMC Medical, making the offer. The complaint treated FMC Hospital and FMC Medical as two defendants, the offer referenced the two defendants, and attorney’s fees and costs were requested by two defendants, Thus the offer constituted a joint proposal.
Under section 768.79 and rule 1.442 the proposal was invalid because it failed to apportion the settlement amount between FMC Hospital and FMC Medical. The Court acknowledged that even though there may have been no logical apportionment that could have been made, apportionment is still required when there is more than one offeror or offeree involved.

The second case from the Florida Supreme Court is Audiffred v. Arnold, 2015 WL 1724250 (April 16, 2015). Valerie Audiffred was injured in a collision with Thomas Arnold. Auddiffred brought a negligence action against Arnold and her husband asserted a claim for loss of consortium.
Audiffred served a proposal for settlement in the amount of $17,500. The proposal stated that both Plaintiffs (Audiffred and her husband) would dismiss the lawsuit as to the Defendant, Thomas Arnold. Arnold constructively rejected the proposal by not responding within thirty days. After the jury awarded Audiffred $26,055 at trial, her attorneys argued that she and her husband had beaten the proposal for settlement by 25% and were entitled to attorney’s fees. The trial court awarded Auddifred and her husband attorney’s fees and costs. On appeal, the First DCA reversed. The Florida Supreme Court affirmed the First DCA decision.

The Court held that the proposal for settlement was invalid. Although the proposal lists Audifferd as the sole offeror, if it was accepted, the offer would have resolved all pending claims by both Audiffred and her husband. The proposal would have settled the claims of two plaintiffs against one defendant. When an offer is going to resolve the claim of more than one plaintiff the offer must clearly state who will be receiving what portions of the money.Therefore, the amount offered should have been apportioned between Audiffred and her husband.
The takeaway from these cases is that if an offer of settlement is going to resolve the claims against more than one defendant or by more than one plaintiff, it must be clear who is contributing what portions of the money, or who is to receive what portions of the money.

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Northwoods Sports Medicine and Physical Rehab. Inc. et al v. State Farm Mutual Automobile Ins. Co. and USAA Casualty Ins. Co. - Case No. 4D11-1556 and 4D11-3796 (Fla. 4th DCA 2014)

In Northwoods, the Fourth DCA ruled that post-suit exhaustion of benefits should be treated no differently than pre-suit exhaustion cases. As the court stated, "once the PIP benefits are exhausted through the payment of valid claims, an insurer has no further liability on unresolved, pending claims, absent bad faith in the handling of the claim by the insurance company."

The trial court had granted the defendant insurer's motion for summary judgment, but certified the question to the Fourth DCA as to whether post-suit exhaustion of benefits cases warranted a different analysis than cases where benefits exhausted prior to suit being filed.

The court's ruling makes it clear that post-suit exhaustion cases should not be treated any differently than pre-suit exhaustion cases. Once the insurer has paid the $10,000 in policy limits, the plaintiff cannot seek any amounts in excess of such limits, regardless of whether suit has been filed or not. The decision also demonstrates the continued validity of Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005), despite some unfounded claims to the contrary.

A copy may be seen here.

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Lenart v. Ocwen Fin. Corp., 869 So. 2d 588 (Fla. 3rd DCA 2004)

In the Lenart v Ocwen case, the court addressed the issues of insurable interests and entitlement to proceeds when there has been a foreclosure after loss. The case arises from an appeal by the insured homeowner of an order granting summary judgment in favor of the leinholder awarding the leinholder the full amount of the settlement proceeds reached between the carrier and the insured homeowner.

Facts: The insured property sustained a loss when the home was still owned by the insured. Subsequent to the loss, the lienholder obtained a judgment of foreclosure on the property, totaling $141,062. During the foreclosure process the parties stipulated the value of the property at the time of the public sale was $130,000. After the sale of the property, there remained a deficiency balance of $11,062. A settlement of $90,000 of the property claim was reached after the conclusion of the foreclosure process. The lienholder argued that it was entitled to receive the entire $90,000 property settlement. The trial court agreed and granted summary judgment.

Analysis: The appellate court reversed the trial court’s order granting summary judgment. The court explained that at the time of the loss the leinholder’s insurable interest was that of a loss-payable mortgagee. In other words, when the leinholder chose the remedy of foreclosing on the property, it limited its interests to the amount of the deficiency, plus interest because as a loss-payable mortgagee’s rights are determined at the time of the loss. As a result, the insured, homeowner at the time of the loss, would be entitled to the balance of the settlement (after payment of the $11,062 deficiency). The court explained specifically that these factual circumstances are referred to as “foreclosure after loss.

Result: Even when a foreclosure has concluded and the insured is no longer the owner of the home, the leinholder remains a proper payee and should be placed on the settlement draft issued as a result of settling the first party property claim with the insured/prior owner. Ultimately, it is between the leinholder and the insured and perhaps the court to decide how much of the settlement each is entitled to. Of interest, it appears that in this particular case the insured was entitled to the balance simply because of the agreement reached in the foreclosure case regarding the value of the home. This agreement established the deficiency amount after the sale. Therefore it seems that if there was no agreement, it is very likely the insured would not have been entitled to any of the proceeds.

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Durse v. Henn, Case No. 4D09-1659 (Fla. 4th DCA 2011)

The Fourth DCA rendered opinions on two issues, with the second issue being more significant.  Specifically, the Court held that the trial court erred by excluding the plaintiff’s medical bills showing the full amount of the damages.  Although the plaintiff had no health insurance, and therefore did not pay premiums to a private health insurer (as was done by the plaintiff in the Nationwide vs. Harrell case), by negotiating a lower amount, he “earned” the ability to present the full amount of the bills.  Had the plaintiff’s bills been paid by Medicare, as in Thyssenkrupp, then he would not have been entitled to the full value of the medical bills.  The court did not address, and therefore seemingly left intact, a defendant’s ability to question the reasonableness of charges claimed by the plaintiff’s medical providers.

In the first and less significant issue, the 4th DCA held that the trial court erred by allowing an officer to testify as to which car caused the initial impact in a motor vehicle accident.  The officer did not perform any test at the scene of the accident, but rather relied only on statements.  Accordingly, the testimony contravened Florida’s accident report privilege.

GEORGE C. DURSE, Appellant, v. JANICE E. HENN, Appellee. 4th District. Case No. 4D09-1659. July 6, 2011. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Diana Lewis, Judge; L.T. Case No. 502007CA004113 XXXXMBAF. Counsel: Andrew A. Harris of Burlington & Rockenbach, P.A., and William W. Price of William W. Price, P.A., West Palm Beach, for appellant. Jacqueline G. Emanuel of Knoerr & Emanuel, P.A., Fort Lauderdale, for appellee.

(Polen, J.) George Durse appeals the final judgment in favor of the appellee, Janice Henn, after the jury found Henn not liable for injuries Durse sustained following a car accident. Durse argues two points on appeal: (1) that the trial court erred in admitting testimony regarding causation from the investigating officer, Officer Carmack; and (2) that the trial court erred when it refused to allow Durse to present the full amount of his past medical bills to the jury. We agree with Durse on both points and reverse.

Durse was a passenger in a vehicle driven by Cushman (the Durse vehicle). While the Durse vehicle was stopped, it was struck by Henn's vehicle. At trial, the main dispute regarding liability was whether a vehicle driven by Keay hit Henn, causing Henn to hit Durse, or whether Henn first hit Durse and was then hit by Keay. Both Durse and Henn called accident reconstructionists to testify: Durse's expert testified that Henn first ran into the Durse vehicle and that subsequently, the Keay vehicle struck the rear of Henn's vehicle; Henn's expert testified that the first event was Keay's vehicle rear-ending Henn's vehicle, which caused Henn's vehicle to strike the Durse vehicle. Thus, there was conflicting testimony as to the issue of causation.

At trial, Henn asked Carmack if he determined, as part of his investigation, what the first impact was; Carmack said “yes.” Durse then objected based on the accident report privilege,1 arguing that Carmack's pre-trial deposition testimony made clear that his conclusion was reached from statements made by drivers at the scene. Henn stated she was not asking about statements made, but only for part of Carmack's investigation that allowed him to make that determination. The trial judge responded: “If he knows, he's entitled to say. Isn't he sort of a semi-expert?” The trial judge then sustained the objection in part and overruled it in part. Henn then asked Carmack:
Without telling me any statements that were made to you in the course of your investigation, based on your experience, training, your investigation of the crash, and your physical observations that you made while you were at the scene of the crash, did you determine what the first impact was?

Carmack responded: “Yes. The Keay vehicle hitting the Henn vehicle.” When questioned by Durse, Carmack testified that he did not conduct an accident reconstruction or a crush analysis, nor did he measure the property damage to the vehicles or try to determine what force with which each vehicle hit the other. Instead, Carmack testified that he basically took statements.

In closing argument, Henn emphasized Carmack's causation testimony:
Who saw all the physical evidence? Not [the two accident reconstructionists], but Officer Carmack did, the police officer who went to the scene to investigate this crash. He had the opportunity to be out at the scene while the vehicles were there. He had the opportunity to observe the property damage which you have never seen, because we have no photographs of Mr. Durse's vehicle. But the only person who did is Officer Carmack.

And what did Officer Carmack tell us? What did he take the stand and tell you folks? I asked him, what was the first impact based on your experience, your training and your physical observations at the scene and of these vehicles? And without hesitation, Officer Carmack told you that my client was rear-ended by Mrs. Keay and pushed into the plaintiff. That's the evidence. And there is no one who said they saw anything but that.

In deliberations, the jury asked: “Where is the Palm Beach Gardens Police Report by Carmack? We can't find it.” The trial court informed the jury that “it's not part of the evidence.” The jury then found that Henn was not negligent.

Durse argues that Carmack's conclusion on who caused the first impact violated Florida's accident report privilege because the source of his knowledge, as he admitted, was exclusively based on the statements he took at the scene; he admitted he did not conduct an accident reconstruction, a crush analysis, measure the property damage to the vehicles, or determine the forces involved in the collision. Henn argues that since Durse's objection was sustained in part, he had an obligation to renew the objection or to move for a mistrial in order to preserve this issue for review, and because Durse did neither, he waived any objection to Carmack's testimony. Henn further argues that Durse did not ask Carmack if his opinions were based solely upon the statements, but only whether he took statements; therefore, Henn contends that Durse failed to establish that Carmack's testimony violated the accident report privilege.

Rulings on the admission of evidence are reviewed for abuse of discretion. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008) (citing Johnson v. State, 863 So. 2d 271, 278 (Fla. 2003)). “Generally, when a court sustains a party's objection, that party must seek a curative instruction and/or move for a mistrial to preserve appellate review of that objection.” Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th DCA 2000) (citing Ed Ricke & Sons, Inc. v. Green By and Through Swan, 468 So. 2d 908, 910 (Fla. 1985)).

We hold that Durse did not waive this issue for appeal. The trial judge sustained Durse's objection as to Carmack testifying to the actual statements given to him by drivers at the scene of the accident (which he did not subsequently testify to) and overruled Durse's objection to prevent Carmack from testifying as to his opinion of who caused the first impact (which he did subsequently testify to). Thus, Durse did not have to move for a mistrial in order to preserve; the issue was preserved because part of Durse's objection was overruled.
Regarding Florida's accident report privilege, section 316.066(7), Florida Statutes (2007), provides in pertinent part:
Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.

In Hammond v. Jim Hinton Oil Co., 530 So. 2d 995 (Fla. 1st DCA 1988), Officer Merritt testified that he prepared diagrams as part of the homicide report he filed in connection with a motor vehicle accident. 996-97. The diagrams were based not only on Merritt's personal observations but also on those of another investigating officer and on statements given to Merritt by witnesses, including the driver of one of the vehicles in the accident. 997. “Because some of the information used to construct the diagrams was not based on first-hand knowledge and was based in part on the testimony of a driver of one of the vehicles involved in the accident,” the First District held that “the diagrams were privileged under § 316.066 and it was error to admit them into evidence.” Id.(emphasis added). The appellees in Hammondargued that any error in admitting the documents was harmless because the information was testified to by other witnesses. Id.However, relying on Dinowitz v. Weinrub, 493 So. 2d 29 (Fla. 4th DCA 1986), the court held the error harmful because the diagrams could be interpreted by the jury as contradicting the testimony presented by appellants' witnesses and being consistent with appellees' version of the accident. Id.

In Dinowitz, the plaintiff called the investigating officer as a witness; on cross examination, the officer stated that his conclusion in his report that the defendant's vehicle was entirely within the eastbound lane was not from his independent investigation but instead from what the defendant told him. Dinowitz, 493 So. 2d at 30-31. On appeal, this court held that the plaintiff's objections to this testimony should have been sustained and reversed the trial court, finding harmful error:
Our concern lies with the effect of the officer's parroting what the defendant told him as to the accident having occurred on the roadway, thus potentially giving the defendant an edge with the jury in the swearing match between the parties. Had the evidence -- testimonial or otherwise -- been, apart from that of the defendant, to the effect that the impact occurred on the roadway, we might be more convinced as to the harmless effect of the officer's testimony. The officer's appearance -- boots and belt -- coupled with twenty-two years as an officer in Florida and New York could have easily influenced one or more jurors in a favorable manner. 31. This court added: “The statute has a very important purpose; namely, to enable an investigating officer to learn the truth about the occurrence of an accident without the party so revealing it incriminating himself. To whittle away at the statute is contrary to public policy.” Id.
We hold that the trial court abused its discretion in allowing Carmack to testify as to which car caused the first impact. The transcript makes clear that Carmack did not perform any kind of test to determine first impact, and instead, he only took statements. This testimony contravenes Florida's accident privilege. Further, the error was not harmless. The record reflects that there was conflicting testimony presented as to which impact was the first impact, most notably between the two accident reconstructionists. As was held in Hammond and Dinowitz, Carmack's testimony, based primarily on statements made to him, cannot be said to have not influenced the jury's verdict.

Durse next argues that the trial court erred when it refused to allow Durse to present the full amount of his past medical bills to the jury. Henn filed a motion in limine to preclude Durse from presenting evidence of the full amount of his medical bills, arguing that Durse could introduce only the amount of medical bills which his provider accepted as final satisfaction of outstanding medical bills. After a hearing, the trial court granted Henn's motion. Durse argues that the trial court's ruling prejudices his ability to establish the value of future medical expenses and non-economic damages and contends that this is an issue that should be resolved post-verdict. Henn argues that under this court's decision in Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003), the trial court properly limited introduction of the amount of medical bills to the amounts actually paid by Durse and accepted by his healthcare providers, rather than the original face value of the bills.

“The collateral source rule functions as both a rule of damages and a rule of evidence. As a rule of damages, ‘the collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor.' As a rule of evidence, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources, upon proper objection.” In Florida, the damages portion of the rule has been superseded by legislative action. However, the evidentiary portion of the rule remains alive and well in Florida.

Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084, 1086 (Fla. 1st DCA 2010) (quoting Gormley v. GTE Prods. Corp., 587 So. 2d 455, 457 (Fla. 1991) (plurality opinion)) (internal citations omitted).

In Thyssenkrupp, the defendant sought a reduction in the award of medical expenses equal to the amount by which a provider's charges were reduced upon acceptance from Medicare. Thyssenkrupp, 868 So. 2d at 549. This court held:

Allowing the admission of evidence of the excess discharged by Medicare payment has the effect of providing an undeserved and unnecessary windfall to the plaintiff. It would also be contrary to the public purpose of reducing health care costs to allow inflated damage recoveries to stand without reduction. We therefore conclude that defendant is entitled to have the past medical expenses awarded by the jury reduced -- to the extent such amounts are actually included in the past medical expenses awarded -- by the difference between the amounts charged by a provider and the amounts actually paid that provider by Medicare. On remand the trial court is authorized to receive such evidence as may be necessary to fix the precise amount of the reduction required by our decision today.

Id. at 550 (internal citations omitted). In Nationwide, the appellant argued that the trial court abused its discretion when it permitted the appellee to introduce into evidence the gross amount of her medical bills, rather than the lesser amount paid by the appellee's private health insurer in full settlement of the medical bills, because it misled the jury as to the true amount of the appellee's damages. Nationwide, 53 So. 3d at 1085. In support, the appellant relied on a number of cases, including Thyssenkrupp, which hold that it is reversible error to permit evidence of the gross amount of medical bills, rather than the amount actually paid in full settlement of those bills. Id.However, the First District noted that all of the appellant's cases involved payments made on the plaintiff's behalf by Medicare, rather than a private insurance provider; as such, the First District concluded that these cases were distinguishable because, in Nationwide, the payments were made by appellee's private health insurer. Id at 1085-86.

The Nationwide court relied on the reasoning set forth in Florida Physician's Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984). In Stanley, the Florida Supreme Court held that evidence of governmental or charitable benefits available to all citizens should not be precluded by the evidentiary portion of the collateral source rule:
We believe that the common-law collateral source rule should be limited to those benefits earned in some way by the plaintiff. Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care. . . . We find persuasive the following reasoning advanced by the Supreme Court of Illinois in refusing to allow a plaintiff a windfall recovery for the value of free medical services received in a charitable hospital:
[T]he policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. This is further made apparent upon comparison . . . with a situation in which the collateral-source rule is frequently applied, that of the defendant who seeks a reduction in damages because the plaintiff has received insurance benefits. “It is a well-settled rule of damages that the amount recoverable for tortious personal injuries is not decreased by the fact that the injured party has been wholly or partly indemnified for the loss by proceeds from accident insurance where the tortfeasor did not contribute to the payment of the premiums of such insurance. This rule is usually justified on the basis that the wrongdoer should not benefit from the expenditures made by the injured party in procuring the insurance coverage.”

Id. at 515-16 (quoting Peterson v. Lou Bachrodt Chevrolet Co., 392 N.E.2d 1, 5 (Ill. 1979), overruled by Wills v. Foster, 892 N.E.2d 1018 (Ill. 2008)) (emphasis in original). Thus, based on the foregoing, the Nationwide court held:

[I]t is relatively clear that our supreme court intended to limit abrogation of the evidentiary portion of the collateral source rule to cases where the benefits received to reduce the cost of medical care were not earned (or paid for) in some way by the plaintiff. Here, there is no dispute that appellee paid the premiums for her health insurance. Accordingly, pursuant to the evidentiary portion of the collateral source rule as it currently exists in Florida, we hold that the trial court correctly ruled that appellee was entitled to introduce into evidence (and to request from the jury) the gross amount of her medical bills, rather than the lesser amount paid by appellee's private health insurer in full settlement of the medical bills. In fact, the only Florida appellate decision we have been able to find that is directly on point reaches that result. Goble v. Frohman, 848 So. 2d 406, 410 (Fla. 2d DCA 2003) (relying on Gormley v. GTE Prods. Corp.), approved on other grounds, 901 So. 2d 830 (Fla. 2005).

Nationwide, 53 So. 3d at 1087 (emphasis added).

Here, Durse's medical bills were reduced by the medical providers Durse received treatment from as a result of the injuries he sustained in the accident. Unlike the appellees in Thyssenkrupp and Nationwide, Durse did not have health insurance. Although Durse did not pay the premiums for his health insurance, like the appellee in Nationwide (because he had no health insurance), by negotiating a lower amount, Durse “earned in some way,” within the meaning of Nationwide, the lowered final amount of his medical bills. The trial court erred by excluding the medical bills showing the full amount of the charges.

Reversed and Remanded for a New Trial. (Warner and Conner, JJ., concur.)
1 § 316.066(7), Fla. Stat. (2007).

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Katzman and Advanced Orthopaedics v. Rediron, Martin and Minjares, Case No. 4D11-1290 (Fla. 4th DCA 2011)

In Katzman, the 4th DCA re-affirmed its holding in Columbia Hospital Ltd. P'Ship v. Hasson, finding that a defendant may discover from a medical provider billing information regarding a certain procedure.  Here, the Court affirmed the trial court's order demanding that the non-party physician, Scott Katzman, respond to discovery requests sent by the defendant in a bodily injury action. The defendant was trying to show bias on the part of Dr. Katzman, and had requested documentation showing amounts collected over three years from health insurance providers as opposed to what was collected under letters of protection. The Court reasoned that, due to the referral from an attorney, Dr. Katzman was not a typical "expert" under the rules of civil procedure, and was thus less protected by the shields typically afforded to experts under the rules of discovery.

SCOTT KATZMAN, M.D. and ADVANCED ORTHOPAEDICS, P.A., Petitioners, v. REDIRON FABRICATION, INC., GEORGE MARTIN and ALLISON MINJARES, Respondents. 4th District. Case No. 4D11-1290. December 21, 2011. Petition for writ of certiorari to the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 562009CA007932. Counsel: Kimberly P. Simoes and Mario B. Simoes of The Simoes Law Group, P.A., Deland, and Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for petitioners. William T. Viergever and Sharon Bidka Urbanek of Sonneborn Rutter Cooney & Smith, P.A., West Palm Beach, for respondent Rediron Fabrication, Inc. Celene H. Humphries and Tracy S. Carlin of Brannock & Humphries, Tampa, for Amicus Curiae Florida Justice Association.

On Motion for Clarification and Certification

(Per Curiam.) Petitioner has moved for rehearing, rehearing en banc, clarification, and for certification of a question of great public importance. The Florida Justice Association has filed an amicus brief raising new issues that were not brought by the parties. The amicus acknowledges that this court cannot decide the case based on its newly-raised arguments. Nevertheless, it asks that this court clarify that the opinion is limited to the unique facts of this case.

We decline to rehear this issue en banc and deny petitioner's motion for rehearing as it does not identify any point of law or fact that this court overlooked or misapprehended. Fla. R. App. P. 9.330(a). We also deny the motion for certification. We grant clarification, withdraw the previous opinion and issue the following in its place.


Scott Katzman, M.D., and his medical practice, Advanced Orthopaedics, P.A. (collectively Dr. Katzman), petition for a writ of certiorari from a trial court order denying their motion for a protective order. Dr. Katzman, a non-party to the underlying personal injury suit, contends that the defendant's discovery requests are over broad, unduly burdensome, and beyond what is authorized from an expert witness under Florida Rule of Civil Procedure 1.280(b)(4)(A).

The trial court's discovery order is narrowly tailored and does not unduly intrude into the private financial affairs of the non-party. We conclude that the trial court did not abuse its broad discretion in controlling discovery and deny the petition.


Plaintiffs George Martin and Allison Minjares were involved in an auto accident with a vehicle owned by defendant Rediron Fabrication, Inc. and filed suit seeking damages for their alleged injuries. Plaintiffs' lawyer referred them to Dr. Katzman. Katzman entered into a letter of protection agreement (LOP) agreeing to be paid for treating the plaintiffs from any recovery obtained in the lawsuit.

Katzman performed an allegedly controversial outpatient surgical procedure1 on the plaintiffs. Katzman performed the procedure on both plaintiffs within weeks of what defendant refers to as a "minor auto accident." One procedure took less than 45 minutes, and Katzman billed more than $45,000. He billed more than $36,000 for the second plaintiff. In 2008, the Center for Medicare and Medicaid Services issued a national non-coverage determination finding no evidence that this procedure improves health or reduces pain. Defendant believes that a large portion of Katzman's income is generated by recommending this procedure for patients referred to him in litigation cases and that he charges more for the procedure in litigation cases than in nonlitigation cases.

Rediron sought discovery from Katzman regarding how often he has ordered discectomies over the past four years and what he has charged in litigation and non-litigation cases. Katzman objected, moved for a protective order, and argued that the discovery is overbroad and exceeds the financial discovery that is permitted from retained experts under the discovery rules and Elkins v. Syken, 672 So. 2d 517 (Fla. 1996).
After two hearings, the circuit court ruled that defendant must respond to the following requests:

6. Dr. Katzman will provide the amounts he has collected from health insurance coverage on an annual basis in 2007, 2008, 2009 and 2010 regarding the type of surgery as what he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years from those health insurers.

7. Dr. Katzman will provide the amounts he has collected under letters of protection received from attorneys on an annual basis in 2007, 2008, 2009, and 2010 regarding the type of surgery as what he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years pursuant to those letters of protection.

This petition followed.


Certiorari jurisdiction does not lie to review every erroneous discovery order. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). "[R]eview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Id. (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)).

This court generally will not review orders denying a party's over-breadth or burdensomeness objections to discovery. See Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197, 1200 (Fla. 4th DCA 2000); Cmtys. Fin. Co. v. Bjork, 987 So. 2d 231 (Fla. 4th DCA 2008).

The order at issue in this case, however, requires production of otherwise private financial information from a non-party, which has no right to appeal.

Petitioner alleges that the order is overbroad, unduly burdensome, and that it departs from the essential requirements of Elkins and rule 1.280. To this extent, petitioner makes a threshold jurisdictional showing that the trial court's order compels production of cat-out-of-the-bag discovery. Martin-Johnson, 509 So. 2d at 1100. See also Price v. Hannahs, 954 So. 2d 97, 100 (Fla. 2d DCA 2007).


In Syken v. Elkins, 644 So. 2d 539 (Fla. 3d DCA 1994), approved, 672 So. 2d 517 (Fla. 1996), experts retained to provide compulsory medical examinations were ordered to produce expansive discovery of their private financial information, including tax returns. The information was sought to show what should have been fairly obvious to most, that the expert may be biased in favor of the retaining party because he or she has a financial incentive. Trial courts, however, permitted broad, wholesale discovery into the private financial affairs of the experts far beyond what was reasonably necessary to fairly litigate the potential for bias. The problem with such invasive and harassing discovery was expanding and threatened to chill the willingness of experts to become involved in litigation.

The Third District Court of Appeal fashioned a methodology that balanced a party's need to obtain financial bias discovery from an expert with the need to protect the privacy rights of experts. The Florida Supreme Court approved of the Third District's criteria and, subsequently, the methodology was codified in Florida Rule of Civil Procedure 1.280(b)(4)(A).2

Several years following Elkins, the court decided Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999), which arose from insurance litigation. The insured sought to discover from the insurance company the extent of its financial relationship with the expert witness that the insurance company intended to call at trial to dispute causation. The court held that the Elkins limitations could not be used to shield the discovery sought from the party regarding its financial relationship with the expert. The court strongly condemned the insurance company's attempt to hide discovery of its financial relationship with the expert: "Only when all relevant facts are before the judge and jury can the 'search for truth and justice' be accomplished." Id. at 995 (emphasis in original) (citation omitted). Because the discovery in Boecher sought information from the party regarding its relationship with a particular expert, the court found that the analysis changed and the balance of interests shifted in favor of allowing the discovery. Id. at 997.

The situation presented in this case, which we have seen recurring, involves a physician who treats a patient who was involved in an auto accident and referred by a lawyer. The physician enters into a letter of protection (LOP) agreement and agrees to obtain payment from any recovery that is obtained in the law suit. In one respect, the physician is a "fact" witness, a treating physician.

In another respect, the same physician often provides expert opinions at trial regarding the permanency of injuries, prognosis, the need for future treatment, etc. The physician is not merely a witness retained to give an expert opinion about an issue at trial. Likewise this is not a typical treating physician that a patient independently sought out. A lawyer referred the patient to the physician in anticipation of litigation and therefore the physician has injected himself into the litigation. This witness potentially has a stake in the outcome of the litigation not because of the LOP -- because of the referral by the lawyer. The LOP merely gives the doctor the assurance that his/her bill will be paid directly from the proceeds of any settlement or verdict. It is the direct referral by the lawyer to the doctor that creates a circumstance that would allow the defendant to explore possible bias on the part of the doctor.

As in Boecher, the circumstances in the present situation are different from that in Elkins, and the balance of interests is different.

Katzman argues that he is an "expert" within the meaning of the rule and that financial bias discovery is therefore limited. See Fla. R. Civ. P. 1.390(a) (defining "expert" as the term is used in the discovery rules as "one possessed of special knowledge or skill about the subject upon which called to testify"). Katzman alleges that he is being compelled to compile and produce non-existent documents which exceeds what Elkins and rule 1.280(b)(4)(A) allow.

The parties do not dispute that Katzman, who has been listed as an expert for trial, qualifies as an expert under the rule. Katzman is expected to provide expert opinion testimony as a witness in this case, but Katzman is also a treating physician who has provided treatment under a letter of protection agreement.

Elkins and rule 1.280(b)(4)(A) limit general financial bias discovery sought for impeachment of a retained expert. Petitioner relies on Price v. Hannahs, 954 So. 2d 97 (Fla. 2d DCA 2007), but in that case the trial court had granted general financial bias discovery in excess of that permitted by the rule. Boecher makes clear that Elkins was not intended to shield from discovery potentially relevant information.

In this case, the discovery that is sought is not relevant merely to show that the witness may be biased based on an ongoing financial relationship with a party or lawyer. We agree that Elkins discovery should generally provide sufficient discovery into such financial bias. The discovery here is relevant to a discrete issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the lawsuit. The limited intrusion into the financial affairs of the doctor in this case is justified by the need to discover case-specific information relevant to substantive issues in the litigation, i.e., the reasonableness of the cost and necessity of the procedure. In our view, it meets the requirement of "unusual and compelling circumstances."

We have previously recognized that a defendant may discover from a medical provider billing information regarding this particular procedure. Columbia Hosp. (Palm Beaches) Ltd. P'ship v. Hasson, 33 So. 3d 148 (Fla. 4th DCA 2010). In Hasson, we recognized that such discovery is permitted as it is calculated to lead to the discovery of admissible evidence regarding the reasonableness of medical expenses, that is, whether the health care provider "charges non-litigation patients a lower fee for the same medical services." Id. at 150. The fact the medical provider in this case is also expected to provide an "expert" opinion at trial changes nothing.

We reject petitioner's attempt to create a per se rule that all "financial" discovery from any "expert," regardless of whether the expert also is a treating doctor, is always limited strictly to those matters set forth in rule 1.280(b)(4)(A).

Trial courts have broad discretion in controlling discovery and in issuing protective orders. Rojas v. Ryder Truck Rental, Inc., 641 So. 2d 855, 857 (Fla. 1994). Trial courts should not allow discovery to become a tactical litigation weapon to harass the witness, the party, or the law firm(s). See Fla. R. Civ. P. 1.280(b)(4)(C) (allowing trial courts to require the party seeking discovery from an expert to pay a fair part of the fees and expenses reasonably incurred by the expert).

In this case, the trial court did not abuse its broad discretion when it permitted the limited discovery at issue, and the discovery order does not depart from the essential requirements of law.
Petition Denied. (Polen, Taylor and Levine, JJ. concur.)

1 Katzman performed a "percutaneous discectomy" which involves removal of herniated disc material that presses on a nerve root or the spinal cord. Defendant explained that insurance companies and third party payors have questioned the need for and efficacy of this procedure.
2 In relevant part, the rule provides;

(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:

  1. The scope of employment in the pending case and the compensation for such service.
  2. The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants.
  3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
  4. An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.

An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.

Fla. R. Civ. P. 1.280(b)(4)(A)(iii).


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State Farm v. Bowling, Case no. 2D10-1505 (2d DCA July 2011)

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. TWYMAN E. BOWLING and TERRY BOWLING, Appellees. 2nd District. Case No. 2D10-1505. Opinion filed July 8, 2011. Appeal from the Circuit Court for Hillsborough County; Sandra Taylor, Senior Judge, and Robert A. Foster, Jr., Judge. Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, and Mark S. Ramey of Ramey & Kampf, P.A., Tampa, for Appellant. Peter W. van den Boom, Bradford L. Stewart, and David F. Anderson of Frost van den Boom & Smith, P.A., Bartow, for Appellees.

(MORRIS, Judge.) State Farm Mutual Automobile Insurance Company appeals a final judgment entered after a jury verdict in favor of its insureds, Twyman Bowling and Terry Bowling, in the amount of their uninsured motorist (UM) policy limits. On appeal, State Farm raises three evidentiary issues. We see no error in the trial court's rulings on two of the issues, but we find merit in the third issue raised by State Farm. Accordingly, we reverse the final judgment and remand for a new trial.

Mr. Bowling filed suit against State Farm seeking coverage under the UM provision of his policy for injuries he received in an automobile accident. Mrs. Bowling filed a claim for loss of consortium. The case proceeded to a jury trial, after which the jury returned a verdict in favor of the Bowlings for $944,154.50. Upon motion by State Farm, the trial court reduced the judgment to the UM policy limits of $100,000.

State Farm's witness list indicated that Debra Pacha had been retained by State Farm as an expert witness to testify to the reasonableness of the charges submitted for the medical treatment provided to Mr. Bowling. Ms. Pacha testified at her deposition that she was asked to testify “concerning the reasonableness of charges for medical treatment rendered to” Mr. Bowling. She testified that she compared the bills to the medical treatment records and found “extreme abuse in regards to the coding, billing[,] and medical record documentation” of four of Mr. Bowling's main medical care providers. She testified that as for those four providers, “there is absolutely nothing within that documentation that is supportive or representative of any of the billed procedures that I have reviewed.” Her report also indicated that she reviewed $278,000 in medical bills and found that $111,000 in charges did not have any supporting medical codes.

The Bowlings filed a motion to exclude Ms. Pacha's testimony, arguing that it would not assist the jury in determining whether Mr. Bowling's bills are reasonable, that Ms. Pacha was not qualified to render an opinion as to the reasonableness of the bills, and that in her deposition, she failed to give any opinion as to the reasonableness of the bills. Prior to trial, the trial court granted the Bowlings' motion by written order, finding that “the testimony of the witness will not assist the jury in determining whether Mr. Bowling's medical bills are reasonable” and that Ms. Pacha was not “qualified to render an opinion as to the reasonableness of those medical bills.”

As in a suit for personal injury, a plaintiff seeking UM coverage must demonstrate that his or her medical expenses are reasonable and necessary. See USAA Cas. Ins. Co. v. Shelton, 932 So. 2d 605, 608 (Fla. 2d DCA 2006) (“Just as she would in a suit against the tortfeasor, the insured [seeking UM recovery] bears the entire burden to prove that her claimed damages were reasonable, necessary, and related to the accident.”); Albertson's, Inc. v. Brady, 475 So. 2d 986, 988 (Fla. 2d DCA 1985) (“It is well established that the plaintiff in a personal injury suit has the burden to prove the reasonableness and necessity of medical expenses.” (citing Shaw v. Puleo, 159 So. 2d 641 (Fla. 1964))). To meet this burden, the Bowlings used a one-page summary of Mr. Bowling's medical bills and Mr. Bowling testified that the charges were reasonable. State Farm attempted to refute this evidence with the testimony of Ms. Pacha.

On appeal, State Farm argues that the trial court erred in excluding the testimony of Ms. Pacha as State Farm's medical billing and coding expert. We agree. Section 90.702, Florida Statutes (2009), provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

“This section requires the court to make two preliminary determinations: (1) whether the subject matter will assist the trier of fact in understanding the evidence or in determining a disputed fact[ ] and (2) whether the witness is adequately qualified to express an opinion on the matter.” Chavez v. State, 12 So. 3d 199, 205 (Fla. 2009).

As part of its defense that Mr. Bowling fabricated or exaggerated his injuries, State Farm argued that Mr. Bowling's medical providers fabricated or exaggerated the medical care necessary for his alleged injuries. Ms. Pacha's testimony that the bills did not correlate to the treatment in the medical records was relevant to prove this defense. Her testimony regarded a technical matter of which the jury did not have basic knowledge. See United States v. Diaz, No. 07-20398-CR, 2008 WL 906725, at *6 (S.D. Fla. Mar. 28, 2008) (noting that medical billing codes are beyond the knowledge of an ordinary juror); see also Johnson v. State, 393 So. 2d 1069, 1072 (Fla. 1980) (holding that expert opinion testimony must relate to a “disputed issue [that] is beyond the ordinary understanding of the jury”). Therefore, the subject matter of Ms. Pacha's testimony would have assisted the jury in determining whether Mr. Bowling's medical bills, on which he based his claim for damages, accurately reflected the treatment he was documented to have received. This issue was directly relevant to whether Mr. Bowling's claimed medical expenses were reasonable and necessary.

As to Ms. Pacha's qualifications, it is clear from her deposition that she has specialized knowledge and training to express an opinion on whether the medical bills were properly coded and whether they correspond to the medical records documenting the purported treatment. See § 90.702; Charles Ehrhardt, Florida Evidence § 702.1, at 677-78 (2009 ed.) (noting that definition of expert in section 90.702 “applies not only to persons with scientific or technical knowledge but also to anyone with any specialized knowledge”). Ms. Pacha took multiple education courses in the field of coding, she passed a national board examination, and she is a licensed Registered Medical Coder, which allows “the auditing of the documentation, billing[,] and coding” of physician offices, hospitals, and ambulatory surgical centers. She attained the status of a Diplomate of the American Board of Forensic Examiners after taking an examination and teaching education courses. Moreover, she gained professional experience analyzing and reviewing medical coding for various clients such as the FBI, the State Attorney's Office, Federal Express, Wal-Mart, the insurance industry, and attorneys -- both plaintiff and defense. Therefore, Ms. Pacha's training and experience qualify her as an expert in medical billing coding.

In granting the Bowlings' motion to exclude Ms. Pacha's testimony, the trial court found that Ms. Pacha is not qualified to give an expert opinion regarding whether the bills were reasonable. This was error. While Ms. Pacha does not have the necessary medical background to render an opinion on whether the medical care allegedly provided to Mr. Bowling was reasonable, she does have the requisite skill and training to render an opinion on whether the bills submitted by his medical providers accurately reflect the care documented in the medical records of those same providers. This was directly relevant to the amount of damages claimed by the Bowlings.

We recognize that a trial court has broad discretion in ruling on the admissibility of expert witness testimony, see McWatters v. State, 36 So. 3d 613, 629 (Fla. 2010), but “[o]ne of a party's most important due process rights is the right to call witnesses,” Keller Indus. v. Volk, 657 So. 2d 1200, 1202-03 (Fla. 4th DCA 1995). “A trial court should only exclude witnesses under the most compelling of circumstances,” Keller Indus., 657 So. 2d at 1203, especially “when the witness sought to be excluded is a party's only witness or one of the party's most important witnesses because if the witness is stricken, that party will be left unable to present evidence to support his or her theory of the case,” Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000). Ms. Pacha was State Farm's only witness who could testify in support of State Farm's defense that the medical bills submitted for recovery by Mr. Bowling were inaccurate and therefore unreasonable. This testimony was especially important because at least two of Mr. Bowling's medical providers admitted at trial that certain bills included items that should not have been billed.

The trial court abused its discretion in excluding the testimony of Ms. Pacha, and we reverse the final judgment and remand for a new trial consistent with this opinion.
Reversed and remanded. (KELLY, J., Concurs. CRENSHAW, J., Concurs in part and dissents in part with opinion.)

(CRENSHAW, Judge, Concurring in part and dissenting in part.) In this case of first impression, State Farm seeks to introduce the expert testimony of Debra Pacha, a former x-ray technician who became licensed in the forensic examination of medical record coding and billing. Because Ms. Pacha's testimony would have been collateral and did not consist of specialized knowledge requiring the use of an expert, I conclude the trial court did not abuse its discretion by excluding her testimony. Thus, I respectfully dissent from this part of the majority's holding. I concur with the majority in all other respects.

State Farm sought to introduce Ms. Pacha's testimony to address alleged billing discrepancies among four different healthcare providers -- University Community Hospital Carrollwood (UCHC), Rose Radiology Centers, Inc. (Rose Radiology), Nucci Spine Institute & Orthopedics Institute (Nucci Spine Institute), and Dr. Robert Nucci -- but primarily focused on the billing practices of Dr. Nucci, an orthopedic surgeon at Nucci Spine Institute specializing in spinal injuries. Mr. Bowling received treatment from Dr. Nucci for almost two years, and in exchange for Dr. Nucci's services, Mr. Bowling signed a letter of protection in which he assigned his insurance benefits and any and all causes of action available to him under the policy to Dr. Nucci.

At trial, the Bowlings presented Dr. Nucci's testimony via videotaped deposition. Dr. Nucci testified about Mr. Bowling's injuries and the surgeries performed in treating those injuries. Though State Farm cross-examined another treating physician about the amounts and the reasonableness of the services he rendered to Mr. Bowling, it asked Dr. Nucci only limited questions about any discrepancies between services he performed and the services he billed. State Farm did not ask medical providers affiliated with UCHC or Rose Radiology about their billing practices. And State Farm did not ask Mr. Bowling about what services were performed on him and if the services received matched the services for which he was billed.1 Further, the Bowlings introduced the one-page synopsis of Mr. Bowling's medical bills into evidence without objection from State Farm.

The majority is correct that in accordance with this court's determination in USAA Casualty Ins. Co. v. Shelton, 932 So. 2d 605, 608 (Fla. 2d DCA 2006), Mr. Bowling was required to prove under section 627.727, Florida Statutes (2004), that the damages in his uninsured motorist (UM) claim “were reasonable, necessary, and related to the accident.” Yet our focus in Shelton was whether evidence of an insurer's payment of personal injury protection (PIP) benefits was relevant to prove the reasonableness and necessity of the insured's UM claim. Id. We determined that the payment of PIP benefits was not relevant and therefore inadmissible, but also concluded the introduction of the PIP payments was harmless error because it did not become a feature of the trial. Id. Shelton essentially resolved a similar question raised in this court's earlier holding in Flores v. Allstate Insurance Co., 833 So. 2d 172 (Fla. 2d DCA 2002), in which we noted that a secondary issue of a PIP claim in a UM action could prejudicially outweigh any probative value under section 90.403.

Here, State Farm wanted to use Ms. Pacha's testimony to insinuate that Mr. Bowling's medical providers acted fraudulently in their treatment of Mr. Bowling. Though State Farm's allegations are serious and troublesome, I believe Ms. Pacha's testimony would improperly shift the focus of the trial away from Mr. Bowling's actual allegations under chapter 627 to the conduct of third-party providers who acted independently of Mr. Bowling.2 And because Ms. Pacha could only testify as to whether the medical providers properly billed Mr. Bowling but not to the reasonableness of the charges for treatment rendered to him, a questionable billing code entered by a third-party amounted to an irrelevant, collateral issue.3 Of the $318,303.10 in claimed medical expenses that were calculated after deducting insurance payments and adjustments, only about a third of the amount -- $111,938.34 -- was not assigned to an appropriate code. Ms. Pacha did not opine that the providers' description of the $111,938.34 in services meant that the services were not rendered, and she did not calculate an amount of reasonable charges that Mr. Bowling should have incurred.

Alternatively, even if the majority is correct that the evidence was relevant because it would tend to show whether Mr. Bowling's claimed medical expenses were reasonable and necessary, the admission of evidence involving conduct that Mr. Bowling took no part in would still be unduly prejudicial. See, e.g., United States v. Dennis, 625 F.2d 782, 796-97 (8th Cir. 1980) (“Confusion of the issues warrants exclusion of relevant evidence if admission of the evidence would lead to litigation of collateral issues.”). Given the majority opinion's broad language, I am concerned our holding is a blanket authorization for the regular introduction of billing code experts at trial to contest the reasonableness of injuries. Such a practice would make a third-party's billing practices the focus of the trial rather than the questions of coverage,4 negligence by the uninsured motorist, and the extent of the plaintiff's injuries sustained in the accident that are typically raised under section 627.727.

Further, I disagree with the majority's determination that the trial court abused its discretion by excluding Ms. Pacha because she was the only witness who could testify that Mr. Bowling's medical bills were inaccurate. “It is well settled that the determination of a witness's qualifications to express an expert opinion is peculiarly within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error.” Anderson v. State, 863 So. 2d 169, 179 (Fla. 2003) (emphasis added).

Ms. Pacha was State Farm's only witness to contest Mr. Bowling's medical bills because State Farm purposefully made her its only witness. State Farm had several other means to show that the codes in the medical records did not match the procedures billed. For example, State Farm could have shown the bills to each medical provider in question and conducted a detailed inquiry about each disputed charge. State Farm could have had the medical providers' staff testify as to their billing practices and knowledge of entering the codes to bill Mr. Bowling. State Farm could have gone over each medical bill with Mr. Bowling if it believed the charges were unsupported. See Garrett v. Morris Kirschman & Co., 336 So. 2d 566, 571 (Fla. 1976) (concluding plaintiff's testimony “made it a question for the jury to decide, under proper instructions, whether these bills represented reasonable and necessary medical expenses”); see also Albertson's, Inc. v. Brady, 475 So. 2d 986, 988 (Fla. 2d DCA 1985) (holding jury's finding of damages were unsupported where plaintiff's testimony did not associate each medical bill with injuries resulting from the accident). Above all, State Farm could have objected to the Bowlings' introduction of its one-page summary of Mr. Bowling's medical bills. Hence, this case is not like Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000), because State Farm had alternate ways to present evidence supporting its theory of the case and its failure to prevail on its trial strategy does not constitute “clear legal error” by the trial court.

Finally, the majority ignores the trial court's discretion to determine whether Ms. Pacha was qualified to express an expert opinion. Ms. Pacha stated in her deposition that State Farm asked her “to simply look at the billing, coding[,] and documentation and to determine whether the billed procedures are coded appropriately and the documentation was there to support it.” The fact that the coding on some of the medical bills did not match the treatment performed is not something that requires the specialized knowledge of an expert witness to decipher in this case.5 See § 90.702; see also Dungan v. Ford, 632 So. 2d 159, 163 (Fla. 1st DCA 1994) (determining “ ‘reasonableness or necessity' can be established by lay testimony . . . involv[ing] a question of necessity from the perspective of the injured party, rather than from the perspective of a medical expert”). As previously mentioned, there are several other methods in which the discrepancies could have been shown without Ms. Pacha's testimony. And, as the majority notes, Ms. Pacha lacks the necessary medical background to render an opinion on what I believe is the germane issue -- whether the medical care provided to Mr. Bowling was reasonable. Thus, Ms. Pacha's purported expert testimony was properly excluded because “the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts.” Johnson v. State, 393 So. 2d 1069, 1072 (Fla. 1980). Accordingly, I would affirm the trial court's decision to exclude Ms. Pacha's testimony.
1 At the appellate oral argument, State Farm contended it could not ask Mr. Bowling about the exact medical services he received because he did not have a vested interest in the amount owed due to his billing arrangement with Dr. Nucci. Yet State Farm did not raise this argument before the trial court. And, while the agreement between Mr. Bowling and Dr. Nucci is not in the record, Dr. Nucci's testimony did not reflect that Mr. Bowling would be absolved of any financial obligation if he did not receive an award for his injuries.

2 The parties do not allege that Mr. Bowling was involved in, or would profit from, any of the billing code discrepancies.

3 The test for determining whether a matter is collateral or irrelevant “is whether the proposed testimony can be admitted for any purpose independent of the contradictions.” “Two types of evidence pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness' [sic] bias, corruption, or lack of competency.”
Foster v. State, 869 So. 2d 743, 745 (Fla. 2d DCA 2004) (quoting Lawson v. State, 651 So. 2d 713, 715 (Fla. 2d DCA 1995)) (internal citations omitted).

4 This case did not involve a question of coverage.

5 Though the majority cites to U.S. v. Diaz, No. 07-20398-CR, 2008 WL 906725 (S.D. Fla. Mar. 28, 2008), for the proposition that medical billing codes are beyond the knowledge of an ordinary juror, I find Diaz is not pertinent to the underlying issues in this case. Diaz involved two defendants who were charged with numerous offenses, including thirty-two counts of healthcare fraud. Id. at *1. The government sought the expert testimony of a registered nurse practitioner who analyzed a sample of claims packets taken from more than 400 boxes of records from the defendants' billing company and identified categories in the records which she believed contained fraudulent characteristics. Id. at *2. Hence, the nurse's expert testimony was needed to cull through thousands of pages of records and explain the medical billing codes as it related to the defendants' records and the charges of fraud against the defendants. Id. at *6. In contrast, Ms. Pacha's testimony as a medical billing and coding expert merely would have shown that the billing records did not match and would not assist the jury in understanding the facts of the case.