ROBERT WALEROWICZ v. MANDY NICKY ARMAND HOSANG

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERT WALEROWICZ,
Defendant,
v.
MANDY NICKY ARMAND-HOSANG,
Appellee.
No. 4D17-1900
[May 23, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 06-2016-CA-
002924-AXXX-CE.
Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for
appellant.
Philip M. Gerson and Edward S. Schwartz of Gerson & Schwartz, P.A.,
Miami, for appellee.
CONNER, J.
The appellant, Robert Walerowicz (“Defendant”), appeals the final
judgment for damages awarded by the jury in the personal injury action
brought by the appellee, Mandy Nicky Armand-Hosang (“Plaintiff”).
Defendant asserts eight separate grounds for reversing the final judgment
entered below. The eight grounds revolve around three primary
contentions: the trial court erroneously (1) allowed the jury to consider
evidence of past medical expenses for which there was insufficient proof of
the reasonableness and necessity; (2) allowed Plaintiff’s treating physician
to testify as an expert witness about causation and permanency in
violation of a trial preparation order; and (3) used a procedure for jury
selection which denied Defendant the right to intelligently use his
peremptory challenges. We affirm the trial court’s rulings on the jury
selection issue without discussion. We also affirm the trial court’s rulings
regarding the sufficiency of the evidence of past medical expenses and
admission of expert opinion testimony, and explain our reasoning.
Background
Plaintiff filed suit against Defendant seeking damages for bodily injuries
she sustained as a result of an automobile accident. Prior to trial,
Defendant admitted liability for the accident, but denied that the accident
caused the Plaintiff’s injuries. The case proceeded to a jury trial to resolve
the issues of causation, permanency of the injuries, reasonableness and
necessity of medical bills, and damages.
As discussed more fully below, at trial, Defendant objected to Plaintiff’s
treating physician, an orthopedic surgeon (“the Surgeon”), testifying as an
expert on issues of causation and permanency. Additionally, at the close
of Plaintiff’s case in chief, Defendant unsuccessfully moved for a directed
verdict on the issue of past medical expenses, contending there was no
evidence of the reasonableness and necessity of the bills presented, other
than the bills from the Surgeon. Defendant argued that the full amount
of the bills by other providers should not have been submitted to the jury.
The jury determined that Defendant was the legal cause of permanent
injury to Plaintiff and awarded damages for past medical expenses, past
pain and suffering, and future pain and suffering.
After trial, Defendant filed a motion for new trial and for judgment in
accordance with motion for directed verdict based on arguments that the
trial court erred in allowing the Surgeon to testify as an undisclosed expert
and by denying his motion for directed verdict. Defendant’s post-trial
motions were denied, whereupon Defendant gave notice of appeal.
Appellate Analysis
Reasonableness and Necessity of Past Medical Bills
Additional Background
At trial, the Surgeon testified extensively about Plaintiff’s shoulder
injury requiring surgery and his course of treatment. With regards to his
medical bill, the Surgeon testified that the total bill for his practice group
was $58,000, which included the surgery, office visits, x-rays, and
therapy.
Plaintiff also testified and described the various treatments she
underwent as a result of the accident. She testified that prior to her car
accident, she had never injured her left shoulder. Because of the accident,
she went to an urgent care facility the same day for pain and stiffness in
the back of her neck and a numbing sensation radiating from her shoulder
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to her fingers. When the pain continued, approximately a month later,
she went to the medical group. She testified she sought treatment at the
medical group for several months, where she underwent different kinds of
physical therapy, including massage, heat compressions, and ice
compressions. Because her shoulder and arm were not getting better, she
had an MRI performed, after which the doctors at the medical group
recommended she undergo shoulder surgery. She testified that she then
went to a doctor for a second opinion, and that doctor referred her to his
partner, the Surgeon, who performed the surgery. She testified that she
went to a separate medical provider for pre-surgery clearance where
several tests were conducted. The Surgeon also testified to these tests.
Finally, Plaintiff testified that she had more therapy after the surgery to
improve mobility and strength, though she was still experiencing pain and
her injury hindered her ability as a musician to fix and play instruments.
After referencing an exhibit containing her medical bills, Plaintiff’s
counsel asked her if she still owed all of the money on the medical bills, to
which she testified, “Yes, I do.” During a subsequent break in the trial,
Plaintiff’s medical records, including bills for past medical services, were
admitted into evidence.
During Defendant’s presentation of evidence, Defendant’s medical
expert disputed the reasonableness of the amounts charged for various
procedures performed on Plaintiff.
Defendant moved for a directed verdict on the issue of the past medical
bills, contending that Plaintiff failed to present sufficient evidence to prove
the reasonableness and necessity of the past medical expenses, except for
the treatment provided by the Surgeon. The trial court denied the motion.
Analysis
Defendant contends the trial court erred in denying his motion for a
directed verdict and motion for judgment in accordance with a motion for
directed verdict regarding past medical bills. The basis for both motions
was that there was insufficient evidence of the reasonableness and
necessity for past medical services rendered, other than the bills relating
to the services of the Surgeon. In other words, Defendant contended below
that the jury could only consider an award up to $58,000 for the past
services of the Surgeon, and not consider an award for the services of other
medical providers.
A trial court’s ruling on a motion for directed verdict and a motion for
judgment in accordance with a motion for directed verdict is reviewed de
novo. Aragon v. Issa, 103 So. 3d 887, 888 (Fla. 4th DCA 2012). In
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reviewing a trial court’s ruling on a motion for directed verdict, “an
appellate court must view the evidence, resolve all conflicts in the evidence,
and construe every reasonable conclusion that may be drawn from the
evidence in the light most favorable to the non-moving party.” Id. “The
standard of review of a trial court’s evidentiary rulings is abuse of
discretion.” McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007) (citing
Fitzpatrick v. State, 900 So. 2d 495, 514-15 (Fla. 2005)).
Defendant correctly argues that it was Plaintiff’s burden to prove the
reasonableness and necessity of medical expenses. See 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.”).
Regarding reasonableness, “[a]lthough some jurisdictions consider
evidence of the amount of a medical bill to be sufficient proof of
reasonableness, many, including Florida, require something more.” Id. As
we have observed, in a personal injury action, “[t]he patient’s obligation is
not to pay whatever the provider demands, but only a reasonable amount.”
Columbia Hosp. (Palm Beaches) Ltd. P’ship v. Hasson, 33 So. 3d 148, 150
(Fla. 4th DCA 2010) (emphasis added) (quoting A.J. v. State, 677 So. 2d
935, 937 (Fla. 4th DCA 1996)). Thus, in Florida, the plaintiff’s burden to
prove the reasonableness and necessity of medical expenses “requires
more than just evidence of the amount of the bill to establish that
reasonableness.” E. W. Karate Ass’n, Inc. v. Riquelme, 638 So. 2d 604, 605
(Fla. 4th DCA 1994).
Defendant concedes that expert testimony is not required to establish
the reasonableness and necessity of medical bills; instead, a plaintiff’s lay
testimony may adequately establish the reasonableness and necessity of
the medical bills. See Garrett v. Morris Kirschman & Co., 336 So. 2d 566,
571 (Fla. 1976)); Easton v. Bradford, 390 So. 2d 1202, 1204 (Fla. 2d DCA
1980) (holding that the plaintiff’s “detailed description of the treatment
procedures clearly related the therapy to the accident,” and the medical
bills were properly admitted into evidence). However, quoting Albertson’s,
Defendant contends that where a plaintiff “does not associate each bill
with injuries resulting from the accident . . . the reasonableness and
necessity of the medical bills [are] not adequately established[.]”
Albertson’s, 475 So. 2d at 988.
Defendant argues that there was no testimony from Plaintiff associating
each bill to the subject accident. Specifically, Defendant asserts that
Plaintiff simply testified that she still owes the past medical bills but that
she did not know the amount. He points out that the medical bills
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themselves were insufficient to meet her burden to prove the
reasonableness and necessity of her past medical bills, apart from the
Surgeon’s bill.
Plaintiff responds that her testimony sufficiently established the
reasonableness and necessity of all of the medical bills by describing the
treatment for which the bills were incurred and relating that treatment to
the injuries sustained. She maintains that she was not required to
address specific dollar amounts, contrary to Defendant’s assertion, and all
that was necessary was to link the medical treatments she received to the
injury resulting from the accident.
In Albertson’s, the Second District determined that the trial court
improperly admitted a composite exhibit of the plaintiff’s medical bills.
There, the plaintiff, Ruth Brady, in responding to her counsel’s questions,
described the exhibit as follows:
Q. Ruth, I also have a composite exhibit which includes all
medical bills and prescriptions that have been incurred to
date. They total $13,122.94.
A. Yes, and I have some medical bills at home I never brought
to you.
Q. Okay. But you’ve had occasion already to review this
composite exhibit. Does this contain all the bills to date other
than those you’ve just made reference to to the best of your
knowledge?
A. Yes. It’s pretty close ’cause I thought maybe fifteen or
twenty – but I didn’t know how many thousands it was.
Albertson’s, 475 So. 2d at 987-88. Albertson’s objected to the composite
exhibit on the ground that there was no predicate laid as to reasonableness
and necessity. Id. at 988. The trial court overruled the objection. Id.
The Second District determined that the evidentiary scenario in
Albertson’s was distinguishable from Garrett, where our supreme court
determined that the plaintiff’s testimony adequately established the
reasonableness and necessity of medical bills, and expert testimony was
not required. Id. The Second District also determined that the evidentiary
scenario was distinguishable from its prior decision in Easton, where the
court held that, since the plaintiff’s “‘detailed description of the treatment
procedures clearly related the therapy to the accident,’ the medical bills
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were properly admitted into evidence.” Id. (quoting Easton, 390 So. 2d at
1204). Immediately after distinguishing Garrett and Easton, the Second
District said:
Here, unlike in Garrett and Easton, [Brady]’s testimony does
not associate each medical bill with injuries resulting from the
accident at Albertson’s.
Id. (emphasis added).
In addition to distinguishing the evidentiary issue in Albertson’s from
Garrett and Eason, the Second District also addressed Brady’s contention
that the testimony of her physicians, the bills themselves, and the hospital
records sufficiently established a prima facie case for admissibility, and
her reliance on Crowe v. Overland Hauling, Inc., 245 So. 2d 654 (Fla. 4th
DCA 1971). In Crowe, we determined that the testimony of the doctor, the
plaintiff’s husband, and the plaintiff, coupled with the defendant’s
stipulation that the charges were reasonable, established a proper
predicate for admission of some pharmacy bills. Id. at 655-56. The Second
District, in Albertson’s, found Crowe inapposite for two reasons. First, in
Crowe, the plaintiff’s physician testified that he prescribed drugs for the
plaintiff to take for pain resulting from her injuries. Albertson’s, 475 So.
2d at 988. Second, in Crowe, there was a stipulation as to the
reasonableness of the medical expenses. Id.
Our reading of Albertson’s leads us to the conclusion that the core
evidentiary issue which the Second District addressed was the sufficiency
of evidence regarding the necessity of medical bills, in the context of
whether the medical bills were related to the injury. In Albertson’s, unlike
this case, apparently neither the plaintiff nor an expert testified about the
details of her treatment to establish that the medical bills in her composite
exhibit were related to her injury.
Our review of the record in this case leads us to conclude that by the
combination of Plaintiff’s testimony and the Surgeon’s testimony, coupled
with the introduction of the medicals bills, Plaintiff provided sufficient
testimony to establish the reasonableness and necessity of the medical
bills presented to the jury, and the trial court properly denied Defendant’s
motion for directed verdict and the post-trial motions for new trial and for
judgment in accordance with motion for directed verdict. Unpersuaded by
Defendant’s arguments, we affirm the trial court on this issue.
Trial Preparation Order Noncompliance
Additional Background
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Upon setting the case for trial, the trial court entered a trial preparation
order. The trial preparation order required the parties to disclose their
expert witnesses ninety days prior to trial and to include particular
information regarding their expert witnesses. Significantly, the order
stated that the parties would be strictly limited to trial witnesses properly
and timely disclosed.
With two amendments, Plaintiff filed disclosures in response to the trial
preparation order. None of the disclosures designated the Surgeon as an
expert and his area of expertise or provided his curriculum vitae, as
required by the trial preparation order. In the initial and first amended
disclosures, the Surgeon was listed in conjunction with a records
custodian or representative of his office. None of the disclosures contained
separate descriptions of the substance of each witness’s testimony, as
required by the order. However, in the initial and first amended
disclosures, after listing her witnesses, Plaintiff included a brief final
paragraph which stated:
Will testify as to the history, examination, diagnosis,
treatment, prognosis, disability, causation, permanency of the
Plaintiff’s condition and reasonable necessary charges for
services.
In the last disclosure filed, the Surgeon and the records custodian from
his office were listed on separate lines, but the Surgeon still was not
designated as an expert. The final disclosure did not contain the brief
paragraph at the end of the list of witnesses used in the prior disclosures
stating a general description of the witness testimony collectively.
Prior to the start of trial, Defendant objected to Plaintiff calling the
Surgeon as an expert witness due to noncompliance with the trial
preparation order. Defense counsel informed the court that she had not
deposed the Surgeon and argued that the Surgeon’s reports did not
discuss anything regarding causation or permanency of the injury. She
argued that the failure to designate the Surgeon as an expert and the
failure to disclose the substance of his opinions precluded the Surgeon
from providing any expert opinions on those issues. Plaintiff’s counsel
confirmed that she intended to have the Surgeon testify regarding
causation and permanency, stating that he was the treating doctor and
that his opinions were implicit in the medical records. When asked by the
trial court, Plaintiff conceded that she had not provided the Surgeon’s
curriculum vitae to Defendant, but argued that Defendant had not provided
a curriculum vitae for his expert either. Apparently looking at one of
Plaintiff’s prior trial preparation disclosures, the trial court noted the
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paragraph at the end of the witness list stating collectively what Plaintiff’s
witnesses would be testifying about, including causation and permanency.
Defendant maintained that this was insufficient because experts were
supposed to be specifically designated. The trial court overruled the
objection.
Defendant did not renew his prior objection when the Surgeon testified
that Plaintiff’s injury was a permanent disability. The prior objection was
renewed when Plaintiff’s counsel asked the Surgeon whether the injury
was related to the car accident. Defendant’s renewed objection was
overruled. The Surgeon then testified that in his opinion, he believed the
injury was related to the accident. Defendant’s medical expert disputed
the accident caused a permanent injury to Plaintiff.
Analysis
Defendant contends the trial court erred in denying his motion for new
trial. The motion asserted the trial court improperly allowed the Surgeon
to testify as an expert on issues of causation and permanency in violation
of the trial court’s trial preparation order.
Generally, we review trial court orders regarding motions for new trial
for abuse of broad discretion. Office Depot, Inc. v. Miller, 584 So. 2d 587,
589 (Fla. 4th DCA 1991). Admission or exclusion of the testimony of a
witness in violation of a trial preparation order is within the trial court’s
discretion. Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla.
1981).
In Binger, our supreme court held that “a trial court can properly
exclude the testimony of a witness whose name has not been disclosed in
accordance with a pretrial order.” Id. at 1313. “The discretion to do so
must not be exercised blindly, however, and should be guided largely by a
determination as to whether use of the undisclosed witness will prejudice
the objecting party. Prejudice in this sense refers to the surprise in fact of
the objecting party[.]” Id. at 1314 (footnote omitted). Binger also outlined
other factors which should guide the discretion to permit or exclude
evidence in violation of trial preparation orders:
(i) the objecting party’s ability to cure the prejudice or,
similarly, his independent knowledge of the existence of the
witness; (ii) the calling party’s possible intentional, or bad
faith, noncompliance with the pretrial order; and (iii) the
possible disruption of the orderly and efficient trial of the case
(or other cases). If after considering these factors, and any
others that are relevant, the trial court concludes that use of
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the undisclosed witness will not substantially endanger the
fairness of the proceeding, the pretrial order mandating
disclosure should be modified and the witness should be
allowed to testify.
Id.
On appeal, Defendant argues that a new trial is required because he
was prejudiced by the Surgeon’s undisclosed opinions. He argues that
Plaintiff’s counsel failed to properly disclose the Surgeon as an expert
witness, even though she intended to present expert opinions from him on
the issues of causation and permanency. Plaintiff’s counsel’s intention
was demonstrated by Plaintiff’s counsel providing the Surgeon with all of
Plaintiff’s medical records, including a compulsory medical examination
report and other records the Surgeon did not previously have, two days
before trial so that the Surgeon could review them. Defendant further
argues that there were no opinions as to causation and permanency in the
Surgeon’s medical records and that he was surprised in fact by the
Surgeon’s undisclosed opinions. Additionally, Defendant argues he was
prevented from taking the Surgeon’s expert opinions into account in
preparing for and defending the case and had no ability to cure the
prejudice, as he had no time to counteract these opinions or to allow his
own expert to analyze the Surgeon’s testimony.
In part, Defendant’s arguments are framed around the distinction
between a treating physician testifying as a fact witness and a treating
physician testifying as an expert witness. However, we are satisfied that
the trial court recognized that the Surgeon was testifying as an expert
witness, in addition to providing fact testimony as the treating physician.
We are also satisfied that the trial court recognized that Plaintiff failed to
properly disclose the Surgeon as an expert witness in strict compliance
with the pretrial order. While it is clear from the record that Plaintiff’s
counsel failed to comply with the trial preparation order, Defendant’s
arguments do not demonstrate an abuse of discretion by the trial court.
Defendant argues that had he known Plaintiff intended to use the
Surgeon as an expert, he could have conducted additional expert discovery
and deposed the Surgeon. However, the Surgeon was listed as a witness
on each of Plaintiff’s witness lists and it does not appear that Defendant’s
counsel sought to depose him, even as the treating physician. He further
argues that he likely would have challenged the Surgeon’s opinion as to
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permanency under the Daubert 1 expert opinion standards. However,
Defendant failed to ask for a Daubert hearing during trial or
contemporaneously object to the Surgeon’s testimony regarding the
permanency of Plaintiff’s injury. Indeed, nothing prevented Defendant
from objecting at trial regarding the Surgeon’s bases for determining his
opinion as to permanency. Thus, his argument that he was prejudiced by
the nondisclosure of the Surgeon as an expert, fails. Furthermore,
Defendant’s argument that he was surprised by the Surgeon’s opinions is
suspect, where apart from damages, those were the only other two issues
in dispute to be determined at trial.
It appears to us the trial court was somewhat persuaded that Plaintiff’s
first two witness lists indicated generally that witnesses would be
providing testimony as to permanency and causation, even after observing
that Plaintiff did not explicitly comply by identifying which witness would
testify about those issues. The trial court was also concerned that the
prior general statement about the substance of witness testimony
collectively was not included in the last version of Plaintiff’s witness list.
However, the trial court found it significant that Defendant did not seek to
compel Plaintiff’s strict compliance with the trial preparation order.
Indeed, Defendant did not raise the issue of Plaintiff’s noncompliance until
just before trial was to begin. Additionally, despite the failure to enforce
compliance, Defendant was able to present his own expert witness
disputing the causation and permanency of Plaintiff’s injury.
Finally, we note that part of the reason the trial court decided not to
strike the Surgeon’s expert testimony was because it had found that
neither party had strictly complied with the trial preparation order. As
Binger provides, “if after considering [the Binger] factors, and any others
that are relevant, the trial court concludes that use of the undisclosed
witness will not substantially endanger the fairness of the proceeding, the
pretrial order mandating disclosure should be modified and the witness
should be allowed to testify.” Id. at 1314 (emphasis added).
Having failed to establish the trial court abused its discretion, we find
no error in the admission of the Surgeon’s testimony, despite
noncompliance with the pretrial preparation order, or the denial of
Defendant’s motion for new trial based on issues regarding the Surgeon’s
testimony.
1 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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Conclusion
Although Defendant raised eight issues arguing for reversal, we are not
persuaded the trial court erred.
Affirmed.
GERBER, C.J., and LEVINE, J., concur.
NOTE: GERBER, C.J., did not participate in oral argument, but has had
the opportunity to review the entire proceedings.
* * *
Not final until disposition of timely filed motion for rehearing.
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