CASCANET v. Allen
2011 WL 3516135, 83 So. 3d 759, 2011 Fla. App. LEXIS 12644 (2011)
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Rule of Law:
Expert witnesses, particularly independent medical examiners, are generally prohibited from offering opinions at trial that were not disclosed in their written reports, as required by procedural rules like Florida Rule of Civil Procedure 1.360(b). Furthermore, attorneys are prohibited from making closing arguments that appeal to the jury's sympathy for a party or ask them to consider the economic impact of a verdict on a defendant.
Facts:
- Joshua Cascanet's vehicle was hit from behind by a car driven by Keri Ann Allen and owned by her father, John Allen, while Cascanet was stopped at a red light.
- Cascanet, who was twenty years old at the time, suffered two bulging, herniated discs, with possible inclusion of a third, resulting in increased pain in his back and legs.
- Cascanet underwent a course of treatment over several months, including trigger point injections, chiropractic care, a nerve conduction study, and a painful discogram.
- Cascanet continued to suffer pain, was unable to sit or stand for long periods, could not continue hobbies related to cars, and was unable to work as a technician at Sears due to lifting restrictions, subsequently finding employment as a supervisor at a Firestone store.
- Cascanet's treating physician, Dr. Datta, concluded that Cascanet would likely require surgery eventually, estimating a 90% probability in ten years and 50% in two-to-three years, with subsequent surgeries also likely.
- The defendants, John Allen and Keri Ann Allen, hired Dr. Lawrence Robinson to perform an independent medical exam (IME) of Cascanet, and Dr. Robinson's written report and addendum stated that Cascanet's chronic back and radiating leg complaints were 'likely causally related' to the accident and that surgical treatment 'may eventually be indicated.'
Procedural Posture:
- Cascanet filed a lawsuit against John Allen and his daughter, Keri Ann, for his injuries sustained in the car accident.
- At trial, Cascanet's attorney made a motion in limine to ensure the defendants' independent medical examiner, Dr. Robinson, would not offer opinions not contained in his written report, which defense counsel agreed to.
- Despite this agreement, the trial court allowed Dr. Robinson to testify, offering new opinions regarding spontaneous disc healing and other possible causes of thigh pain that were not in his prior reports.
- During closing arguments, the trial court allowed defense counsel to argue that the jury should not 'burden' the young Keri Ann Allen with a substantial damage award and to ask for 'justice for my client,' appealing to the jury's sympathy.
- The jury returned a verdict awarding Cascanet only past medical bills and lost wages ($23,764.57), but no future economic or non-economic damages, and found that Cascanet had not sustained a permanent injury.
- Cascanet filed a motion for a new trial, which the trial court denied.
- Cascanet appealed the final judgment to the Florida Fifth District Court of Appeal.
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Issue:
Does a trial court err by allowing an independent medical examiner to offer expert opinions not disclosed in their written report and by permitting defense counsel to make closing arguments designed to curry sympathy for the defendant, thereby depriving the plaintiff of a fair trial?
Opinions:
Majority - SAWAYA, J.
Yes, the trial court erred by allowing the independent medical examiner to testify regarding new opinions not expressed in his report and by permitting the improper closing arguments, which together deprived Cascanet of a fair trial. The court held that allowing Dr. Robinson to testify about spontaneous disc healing and alternative causes of thigh pain, when these opinions were not in his written IME report or addendum, violated Florida Rule of Civil Procedure 1.360(b). This rule requires disclosure of all expert opinions to prevent surprise and prejudice, and a party receiving a report should be confident it contains all major conclusions, as established in precedents like Office Depot, Inc. v. Miller and Suarez-Burgos v. Morhaim. Cascanet's attorney was indeed surprised and unprepared to rebut these new theories. The court further found that defense counsel's closing arguments, which urged the jury not to 'burden' Keri Ann Allen with a substantial award and implied 'justice for her' while she sat alone at the defense table, were an improper attempt to curry sympathy. Such appeals to a jury's sympathy or discussion of a defendant's economic status are consistently prohibited. The jury's quick verdict, failure to find permanent injury despite uncontradicted evidence, and specific damages awarded (matching defense counsel's suggested 'fair burden') demonstrated the improper argument's impact. The court concluded that the combination of these two errors deprived Cascanet of a fair trial, necessitating reversal and remand for a new trial.
Analysis:
This case significantly reinforces the strict requirement for expert witness disclosure under Florida's procedural rules, underscoring that experts cannot introduce new or undisclosed opinions at trial that may surprise or prejudice the opposing party. It serves as a strong reminder to trial courts to vigilantly enforce rules of evidence and professional conduct during closing arguments, particularly concerning appeals to sympathy or discussions of a party's financial burden. The decision highlights the judiciary's commitment to ensuring fair trials by preventing 'trial by ambush' and maintaining a focus on evidence-based decision-making rather than emotional manipulation. It will likely impact future cases by leading to stricter adherence to expert reporting requirements and closer judicial scrutiny of attorneys' closing arguments to prevent similar abuses.
