00-3174 LION V. SUAREZ

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 3d00-3174

Case Date: 05/14/2003

Plaintiff: 00-3174 LION

Defendant: SUAREZ

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2003

LION PLUMBING SUPPLY, INC., Appellant, vs. BIENVENIDO SUAREZ and DELIA SUAREZ, Appellees.

** ** ** ** ** LOWER TRIBUNAL NO. 96-3821 CASE NO. 3D00-3174

** Opinion filed May 14, 2003.

An appeal from the Circuit Court for Dade County, Steve Levine, Judge. Barnett, Barnard & Sechan; Elizabeth K. Russo, for appellant. Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel Eaton, for appellees. Before SCHWARTZ, C.J., and COPE and RAMIREZ1, JJ. COPE, J. Lion Plumbing Supply, Inc. appeals an adverse judgment in an

Judge Ramirez did not hear oral argument, but participated in the decision.

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automobile accident case. We conclude that two expert witnesses of defendant-appellant Lion Plumbing should not have been excluded, and remand for a new trial. I. The car of plaintiff-appellees Bienvenido and Delia Suarez was struck from the rear by defendant Lion Plumbing's truck. The

plaintiffs sought treatment for neck and back pain the day after the accident. The plaintiffs were treated by a general practitioner, Dr. William Colado. When their complaints of pain persisted, Dr.

Colado referred them to, and received reports from, an orthopedic surgeon, two neurologists, a clinical psychologist, a psychiatrist, and neuro-psychologist. The medical professionals were of the

opinion that the husband, age sixty, had suffered a herniated disk, persistent pain, and an inability to perform his regular job duties. had a The medical opinion was that the wife, age fifty-eight, bulging disk, persistent pain, and an inability to

concentrate, which likewise limited her ability to perform her job responsibilities. The plaintiffs sued the defendant for negligence. It was

conceded that the defendant had been negligent in causing the rearend collision.2 The main disputes at trial were whether the neck

The defendant counterclaimed for comparative negligence, contending that the plaintiffs' automobile stopped abruptly when the defendant had no reason to anticipate it. The jury found
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and back ailments of the plaintiffs were attributable to the accident or were the result of degenerative changes in the body, and whether the plaintiffs' medical complaints were as severe as they claimed. By pretrial ruling, the trial court indicated that expert witnesses would be limited to one per side per specialty. plaintiffs' pretrial disclosure listed all seven The

treating

professionals. The defense obtained medical examinations of the plaintiffs by a neurologist, as well as an orthopedic examination by Dr. Ramirez for the wife and Dr. Glatzer for the husband. In opening statement, plaintiffs' counsel reviewed the course of treatment of the plaintiffs, identifying the medical

professionals who had treated them.

Plaintiffs' counsel outlined

the plaintiffs' theory of the case, and also discussed the medical evidence which was anticipated from the defendant's experts. In

opening statement, defense counsel outlined the defense theory of the case and explained that the defense would be calling its neurologist as well as the two orthopedic specialists. On the first day of trial, the plaintiffs called the

neurologist to the stand to testify.

On the morning of the second

day of trial, plaintiffs' counsel announced that he had decided not to call the plaintiffs' orthopedic surgeon--but requested the court against the defendant on this issue. 3

to rule that if the plaintiffs withdrew their orthopedic surgeon, then the defense would likewise not be allowed to call either of its orthopedic experts, Dr. Ramirez or Dr. Glatzer. The trial

court so ruled, and the plaintiffs withdrew their orthopedic expert. The plaintiffs went on to present testimony from the general practitioner and the plaintiffs' neuro-

plaintiffs' psychologist.

In the defense case, the defense was only allowed to call its neurologist, Dr. Scheinberg, as an expert. The neurologist

acknowledged that he could only testify regarding the plaintiffs' complaints from a neurological standpoint. The defense neurologist also said: As I indicated in my report, I felt that in both instances, for Mrs. and Mr. Suarez, that in view of the nature of their complaints, that an independent orthopedic exam might be helpful, because I could not explain on a physiologic basis the persistence of pain for a period of time after the accident. (TR. 475). In closing argument, plaintiffs' counsel emphasized that the plaintiffs had been treated by seven physicians over the years, all of whom agreed from their various viewpoints that the plaintiffs had suffered a permanent injury, whereas the defense had only produced a single hired expert, Dr. Scheinberg. The jury returned the verdict in favor of the plaintiffs, and the defendant has appealed.

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II. A limitation on the number of experts per side is allowed as a mechanism to prevent the "needless presentation of cumulative evidence."

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