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Gurin Gold, LLC v. Dixon

Florida Court of Appeals, Fourth District

July 10, 2019


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey Levenson, Judge; L.T. Case No. CACE 15-008461 (09).

          Alyssa M. Reiter of Wicker Smith O'Hara McCoy & Ford, P.A., for appellants.

          Andrew A. Harris and Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and Todd L. Baker of Steinger Iscoe & Greene, P.A., Fort Lauderdale, for appellee.

          LEVINE, C.J.

         As far back as 1993, this court wrote that "[a]lthough we thought it was generally accepted that civil trials are not to be ambushes for one side or another, we are confronted here by such tactics used by the plaintiff to the prejudice of the defense." Grau v. Branham, 626 So.2d 1059, 1059 (Fla. 4th DCA 1993) (citation omitted). In this case twenty-six years later, we are once again confronted with the same type of tactics. These "trial by ambush" tactics were wrong in 1993, and they remain wrong today.

         In the present case, plaintiff's expert witness at deposition testified regarding plaintiff's MRI examination from 2014. That expert specifically had not viewed MRIs from plaintiff's prior accident in 2010. Defense counsel in opening statement told the jury that his expert witness, on the other hand, had viewed both the 2010 and 2014 MRI results. Only then, long after the discovery deadlines and in the middle of trial after defense counsel had committed to a certain line of defense, did plaintiff's counsel show his expert the 2010 MRI. After this mid-trial review, plaintiff's expert witness compared the two MRIs and opined to the jury that the herniation depicted in plaintiff's 2010 MRI had in fact "gone up" in the later MRI due to the plaintiff's accident with the defendant driver. Further, plaintiff's expert witness for the first time testified to the different quality of each MRI derived from two different machines. We find that the trial court erred in allowing the plaintiff's expert witness to testify for the first time at trial about the MRI from 2010. Thus, we reverse and remand for a new trial.[1]

         This case arises out of a 2014 automobile collision where appellant Macijauskas collided with a car driven by appellee. The only issue at trial was the extent of appellee's injuries caused by the collision.

         Prior to trial and pursuant to a pre-trial discovery order, appellee disclosed Dr. Myers as his treating physician after the 2014 accident. During a deposition, Dr. Myers testified to viewing MRI scans of appellee taken in 2014. Appellee told Dr. Myers about a prior injury from 2010, but Dr. Myers did not view any scans, X-rays, or medical records relating to this prior injury. Dr. Myers assigned appellee a 7% permanent impairment rating, concluding that appellee's pre-existing condition was "permanently aggravated or exacerbated by the motor collision dated 7/21/2014."

         During opening statements at trial, appellants addressed Dr. Myers's anticipated medical opinion, commenting that the jury was "going to be able to weigh and judge is there a basis for the opinion. . . . Maybe the person who is giving opinions didn't have all the information that they needed to be able to make that conclusion." Significantly, appellants stated that their own expert would be able to testify based on comparisons of the 2010 and 2014 MRIs.

         On the second day of trial, counsel for appellee showed the 2010 MRI to Dr. Myers for the first time. During a proffer of Dr. Myers outside the presence of the jury, he admitted to viewing appellee's 2010 MRI for the first time that day. Dr. Myers also acknowledged that he had new opinions based on his review of the 2010 MRI. For example, he opined that one could not compare the two MRIs since the magnets used for each MRI differed in strength. Dr. Myers continued that although the two MRIs could not be compared due to differing magnet strengths, he could still conclude that "the disc herniation, although you are not comparing identical films, shows a progression of the herniation on the new film." Appellants moved to exclude any testimony or new opinions pertaining to reading the 2010 MRI or conclusions regarding the comparability of the MRI scans. Appellee's counsel maintained that there was no change in Dr. Myers's testimony, although counsel acknowledged that Dr. Myers's testimony about the MRIs was "to some extent" important to the case.

         The trial court initially granted appellants' motion to exclude, concluding that Dr. Myers's testimony now was "completely prejudicial" and "not fair" to appellants:

THE COURT: All right. I think what you did is egregious. I think it was inappropriate. This is not trial by ambush. If you are going to bring in additional information, you are duty-bound to disclose ...

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