Tetrault v. Fairchild

• Decision Date: 24 July 2001
• Docket Number: No. 5D00-1336, No. 5D00-1641.
• Parties: Tina M. TETRAULT and Arthur T. Tetrault, Appellants, v. James A. FAIRCHILD, Appellee.
• Court: Florida District Court of Appeals

799 So.2d 226

Tina M. TETRAULT and Arthur T. Tetrault, Appellants, v. James A. FAIRCHILD, Appellee.

Nos. 5D00-1336, 5D00-1641.

District Court of Appeal of Florida, Fifth District.

July 24, 2001.

Rehearing Denied November 13, 2001.

Richard A. Sherman and Rosemary B. Wilder, of Law Office of Richard A. Sherman, P.A., Fort Lauderdale, and Theresa K. Clark, of Law Office of Patricia E. Garagozlo, Melbourne, for Appellants.

James I. Knudson and Jerry D. McGreal of Knudson & McGreal, P.A., Rockledge, and Edna L. Caruso, of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellee.

PER CURIAM.

Tina Tetrault, while driving a vehicle owned by herself and her husband, collided with a vehicle driven by James Fairchild, causing him injury. Fairchild sued and prevailed. We reverse. Dr. Gordon was the radiologist assigned to the emergency room that received the plaintiff on November 13, 1996. While being evaluated in the emergency room, x-rays were ordered and these were examined on the day of the accident by Dr. Gordon, who wrote a report opining that these x-rays reflected no visible injury. That was the extent of his involvement with the plaintiff. Plaintiff was given Darvaset and Valium for pain in the emergency room and released.

Plaintiff subsequently began treatment with Dr. Seconi, a chiropractor. Dr. Seconi referred the plaintiff to Dr. Prusinski, a neurologist, who performed a 1996 MRI and whose report reflected only "bulging discs." The plaintiff continued treatment with Dr. Seconi through the end of 1997. In October 1999, the plaintiff began to experience increased pain and began to treat with an orthopaedic surgeon, Dr. Hanna. Dr. Hanna ordered a new MRI, which was performed in October 1999. The radiologist, Dr. Shapiro, found "No significant interval change" since the 1996 MRI and diagnosed a "bulging disc with a tear in the posterior annular fibers."

Approximately three months before the second MRI was taken, the trial court entered its order setting various trial preparation cut-off dates and scheduling the trial for January 24, 2000. Disclosure of expert witnesses was required by October 15, 1999, and discovery was to be completed by January 10. The defendant took an up-dated deposition of the plaintiff on November 29 and, at that time, learned of the plaintiff's recent and on-going treatment with Dr. Hanna and Dr. Shapiro. Previously, on September 21, 1999, the plaintiff responded to expert interrogatories identifying the various physicians and experts expected to testify. Rather than answer the interrogatories as posed, the restated answers created aggregate responses. The only one appearing to apply remotely to Dr. Gordon is the following:

Doctors shall testify to their care and treatment of Plaintiff. Dr. Prusinski, Dr. Seconi, and Dr. Fornus will also testify that plaintiff has sustained a permanent impairment as a result of the injuries sustained in the incident which is the subject matter of this lawsuit. They shall also testify as to the causation of the injuries for which they treated plaintiff. Further, they will testify as to diagnosis, prognosis and necessity for further follow-up care. [Emphasis supplied.]

The defendant appeals the court's refusal to allow the defense a continuance in order to obtain a neuroradiologist to evaluate the 1996 and 1999 MRIs and critique the opinions of the current treating physicians concerning the plaintiff's condition.

The testimony of Dr. Gordon was critical to plaintiff's case. Shortly before the trial, Dr. Gordon was contacted by plaintiff's counsel, was given the 1996 and 1999 MRIs and was asked to give an opinion concerning the injury they depicted. From the date of the plaintiff's accident until trial, Dr. Gordon was indicated as nothing more than the post-accident emergency room x-ray-reading radiologist who had written a report reporting no injury. Nothing in the answers to expert interrogatories and nothing learned by the defendant through the taking of the plaintiff's deposition could have reasonably put the defense on notice that Dr. Gordon would be called to testify as an expert radiologist to give his evaluation of the two subsequent MRIs and render opinions based on them that the plaintiff had suffered a herniated disc caused by the accident.

The plaintiff urges that the reference in the answer to expert interrogatories that Dr. Gordon would testify as to "causation" was sufficient because "certainly causation encompasses interpreting the MRIs." It is disappointing to see counsel make such an argument. The only other argument to be made is that the expert testimony of Dr. Gordon was harmless because it was "merely cumulative" to Dr. Shapiro's report. While the erroneous omission of cumulative evidence can be harmless, "harmless error" is a more difficult case to make when the testimony is not that of a fact witness, but instead is expert testimony. Dr. Gordon was called by the plaintiff not to testify to his "care and treatment" of plaintiff but to render an opinion as a neuroradiologist based upon his review of MRIs supplied to him in plaintiff's counsel's office as to whether MRIs showed a herniated disc. It was reversible error to allow Dr. Gordon to offer expert testimony based on the October 1996 and October 1999 MRIs. See Suarez-Burgos v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999),

rev. denied, 767 So.2d 461 (Fla.2000).

REVERSED and REMANDED for a new trial.

GRIFFIN, J., concurs.

HARRIS, J., concurs and concurs specially, with opinion.

SAWAYA, J., dissents, with opinion.

HARRIS, J., concurring and concurring specially:

While recognizing that the reasonable exercise of discretion by a trial judge must be upheld, such principle is inapplicable to this case. The primary obligation of any trial court, indeed its most basic responsibility, is to conduct a fair trial. It has no discretion to do otherwise. A ruling by the trial court which denies either party a fair trial cannot be excused based on the proposition that a trial court has exercised its broad discretion. If you disagree with this point, you need read no further.

For those of you remaining, let us consider the facts of this case which made this trial so unfair that reversal is the only remedy.

This action was proceeding to trial on the basis of a soft tissue injury. Indeed, Dr. Gordon, the radiologist who examined the x-rays taken of plaintiff at the emergency room, filed a report furnished to the defense indicating no visible injuries. Subsequently, Dr. Prusinski, at the request of plaintiff, performed the 1996 MRI and reported (this report was also furnished to the defense) that the MRI reflected only "bulging discs." Based on these reports indicating less serious injury, the defense chose not to depose either doctor. Instead, the defense retained Dr. Seig, an orthopedist, to conduct an IME.

The trial court set trial for January 24, 2000, and required that all expert witnesses be listed by October 15, 1999. After that time, and unknown to the defense, the plaintiff had a second MRI performed by Dr. Shapiro. And after that time, Dr. Shapiro, a radiologist, filed his report based on the new MRI finding not only a bulging disc but also "a tear in the posterior annular fibers." And after that time, Dr. Gordon was retained to examine the new MRI and found a herniated disc. Without seeking court approval to amend the witness list, plaintiff added Dr. Hanna, who had referred the plaintiff to Dr. Shapiro, and Dr. Golovac, a "pain expert," to their list. But no mention was made that Dr. Gordon who had previously been disclosed only as having read the emergency room x-rays and as having found no visible injury would now be offered in a new capacity, based on his reading of the new MRI, to testify to a herniated disc. Dr. Gordon's new involvement was not revealed until his trial testimony. The dissent finds that it was the defense's own fault that it did not discover Dr. Gordon's new role because it failed to depose him. This is a strained notion of imputed knowledge. Lawyers should not be encouraged to take unnecessary depositions which tend only to run up the costs of an already expensive legal system. A deposition of Dr. Gordon shortly after the accident would have revealed that he read the x-rays and found no visible evidence of an injury. Since this was revealed by the report furnished to the defense, why depose Dr. Gordon? Further, a deposition of Dr. Gordon at any time before the running of the time in which experts could be added by either party would have revealed the same testimony. By permitting Dr. Gordon to testify at trial in a new undisclosed capacity, the judge rendered the trial unfair. See Colonnell v. Mitchels, 317 So.2d 799 (Fla. 2d DCA 1975)

(The purpose of requiring that physical examinations and discovery be completed by the time of pretrial conference is to avoid surprise at trial. A medical witness changed his opinion based upon a physical examination that took place after the discovery cutoff. A new trial was ordered because of the surprise to the other side when the witness was permitted to testify to his changed opinion at trial.); see also Office Depot, Inc. v. Miller, 584 So.2d 587 (Fla. 4th DCA 1991) (Failure to disclose to plaintiff the defense expert's changed opinion that there was no causal relationship between the accident and the injury after he previously opined that there was required a new trial.).

Here, it was not the defense which violated the court's pretrial order by listing witnesses after the time had run. And it was not the defense which disclosed a witness as having a limited and benign involvement in the case and then, after the running of the period in which to name experts, engaged that witness in a more lethal role. The courts should not permit trial by ambush regardless of which party is riding blithely through the pass.

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