GURIN GOLD, LLC, MINDAUGAS MACIJAUSKAS, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellants,
CHARLES DIXON, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey Levenson, Judge; L.T. Case No. CACE
M. Reiter of Wicker Smith O'Hara McCoy & Ford, P.A.,
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.
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
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.
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.
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."
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.
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.
trial court initially granted appellants' motion to
exclude, concluding that Dr. Myers's testimony now was
"completely prejudicial" and "not fair"
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 ...