Blog Post: Javier A. Reyes
Key words: Evidence, Expert Discovery, Damages.
Evidence – Expert Discovery/Damages: In Vazquez v. Martinez, 175 So. 3d 372 (Fla. 5th DCA 2016) the court addressed the credibility of expert witnesses and the standard for obtaining future medical expenses.
With respect to an expert-witness’ credibility, the court held that the plaintiff was entitled to fully explore the relationship between the defendant and his expert witnesses. During the trial, the trial court permitted plaintiff to present evidence that payments totaling almost $700,000 were made “by the defense or its agents” to defendant’s expert witnesses. Here, an insurance company represented the tortfeasor defendant. The defense argued that this evidence was irrelevant because the insured did not have any direct financial relationship with any of the experts, and instructing the jury on payments made by “representatives of the defendant” or “defendant or its agents” improperly implied the existence of insurance. The Fifth DCA acknowledged that, typically, “introducing the subject of insurance where insurance is not a proper issue constitutes prejudicial error,” citing Herrera v. Moustafa, 96 So. 3d 1020, 1021 (Fla. 4th DCA 2012). Nevertheless, the court reasoned that:
A party may attack the credibility of a witness by exposing a potential bias. § 90.608(2), Fla. Stat. (2013). “A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship.” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999).
And that “whether the party has a direct relationship with any of the experts does not determine whether discovery of the doctor/law firm relationship or doctor/insurer relationship is allowed.” The purpose of § 90.608(2) is to expose any bias between the expert and the party, including ties between the litigants’ agents (e.g., lawyers and the insurer). The Fifth DCA cited the Herrera case again, which held that a party was entitled to show financial ties between an expert and a litigant by showing that the defense firm had paid the expert $330,000. Herrera, 96 So. 3d at 1021. The Fifth DCA did emphasize that the trial judge must permit evidence of possible bias without disclosing the actual existence of insurance.
Second, the Fifth DCA denied a jury award of $50,000 for future medical expenses because the evidence was insufficient. The court reaffirmed that future medical expenses may only be awarded if it is reasonably certain to be incurred in the future. As part of that analysis, there must also be an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses. A mere possibility that certain treatment might be obtained in the future cannot form the basis of an award of future medical expenses. Fasani v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA 2010).
In Vazquez, the experts testified that the Plaintiff did not need future surgery or follow-up treatment. And while the experts recognized that she may seek medications or chiropractic or physical therapy, neither expert thought it would be helpful. Therefore, “no competent, substantial evidence establishing that Ms. Martinez was reasonably certain to incur expenses for future medical treatment.”
Takeaways: When a Plaintiff is exploring an expert’s relationship with an insurance company, the court must be careful to permit evidence of bias (i.e., the relationship between the expert and the insurance company) without disclosing to the jury the existence of insurance. The court’s reasoning in this regard sanctions what amounts to a fig-leaf of sorts since some jurors might surmise that the plaintiff in a run-of-the-mill automobile negligence case does not have the resources to directly pay doctors $700,000 in fees. Nevertheless, it is fair to say that the court prioritized a party’s ability to attack an expert’s credibility over the need to guard against the disclosure of insurance and the potential prejudice arising therefrom.