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Walerowicz v. Armand-Hosang

Florida Court of Appeals, Fourth District

May 23, 2018


         Not final until disposition of timely filed motion for rehearing.

          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.


         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 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 ...

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