VICKY PACK, APPELLANT,
v.
GEICO GENERAL INSURANCE COMPANY, APPELLEE

Fla. 4th DCA | 2013-09-04
No. 4D12-3146
WARNER, CONNER, JJ., and LEVENSON, JEFFREY, R., Associate Judge, concur.
119 So. 3d 1284 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 6 cases

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Synopsis

Vicky Pack sued GEICO for injuries from a car collision with an uninsured motorist. The jury returned a zero-damage verdict despite undisputed evidence of a neck sprain and medical expenses. The Fourth District reversed, holding Pack was entitled to recover reasonable diagnostic medical expenses and finding the zero verdict against the manifest weight of the evidence.


Holding

Pack was entitled to recover at least the reasonable medical expenses for diagnostic testing to determine causation of her injuries, and the zero-damage verdict was both against the manifest weight of the evidence and inadequate as a matter of law. The trial court properly admitted evidence of the letter of protection as relevant to show potential bias under Florida Statutes section 90.608(2).


Headnotes

[1] A jury verdict awarding zero damages is against the manifest weight of the evidence when medical experts agree that a plaintiff suffered at least a minor injury, such as…

[2] A plaintiff is generally entitled to recover reasonable medical expenses for diagnostic testing necessary to determine if an accident caused their injuries, regardless of…

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Key Quotes

“Generally, a plaintiff may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries. Sparks-Book v. Sports Authority Inc., 699 So.2d 767, 768 (Fla. 3d DCA 1997). This is true whether or not the jury finds the accident to be the legal cause of the injury.”

Establishes the core principle that diagnostic testing expenses are recoverable independent of jury conclusions about injury causation

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Facts & Procedural History

Pack was injured in a multi-car accident caused by an uninsured driver. She had uninsured motorist coverage through GEICO. Medical experts agreed Pack…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Vicky Pack sued Geico General Insurance Company (“Geico”) for injuries suffered following a car collision with an uninsured motorist. The evidence was undisputed that Pack suffered at least a neck sprain as a result of the accident and had medical expenses related to the diagnosis of the sprain. The jury returned a verdict for zero damages. Pack appeals the trial court’s denial of her motion for new trial. We reverse, holding that under the facts of this case, Pack was entitled to the reasonable medical expenses incurred for diagnostic testing, and the failure to award any damages rendered the verdict both against the manifest weight of the evidence and inadequate.

*1286Pack also contends that she is entitled to a new trial because the trial court denied her motion in limine and permitted the defense to introduce a letter of protection between her and her treating physician who testified as her expert witness on her claim of more serious injuries to her neck. Under Section 90.608(2), Florida Statutes (2009), any party may impeach a witness’s credibility by showing that the witness is biased. We affirm the lower court’s ruling because a letter of protection between a plaintiff and a treating physician is relevant to show potential bias.

Factual Background

Pack was involved in a multi-car accident with an uninsured driver. She had an uninsured motorist policy through Gei-co. At trial, Geico admitted the negligence of the driver; therefore the issue for the jury was whether that negligence was the legal cause of the loss, injury, or damage sustained by Pack.

Pack’s medical expert, Dr. Gieseke, is a neurosurgeon who examined Pack upon a referral from the emergency room doctor. Treatment commenced under a letter of protection.

Each medical expert testifying at trial agreed that an injury was caused by the accident. However, they differed as to the severity of the injury. Dr. Gieseke explained that Pack suffered a neck sprain from which he could feel a neck spasm. He also diagnosed her with a fracture and disc herniation. Geico’s medical expert, Dr. Routman, stated that the accident caused only a neck sprain.

Prior to the accident at issue, Pack was twice hospitalized with complaints including neck pain. During examinations after the accident, she did not reveal either pri- or hospitalization to either Dr. Gieseke or Dr. Routman. She testified that the neck pain on both occasions was minor and incidental to other more severe injuries.

The jury returned a verdict stating that the uninsured driver’s negligence was the legal cause of damage to Pack. However, the jury awarded Pack zero damages for past or future medical expenses and declared her injury non-permanent. Pack moved for a new trial on the bases that the verdict was both inadequate and against the manifest weight of the evidence. The motion was denied. Pack now appeals, claiming the trial court error erred by denying a new trial and by allowing evidence of a letter of protection.

Analysis

I. Manifest Weight of the Evidence and Inadequate Verdict

Generally, a plaintiff may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries. Sparks-Book v. Sports Authority Inc., 699 So.2d 767, 768 (Fla. 3d DCA 1997). This is true whether or not the jury finds the accident to be the legal cause of the injury. Id.

An exception to the general rule exists when certain factors are met. In State, Department of Transportation v. Rosario, 782 So.2d 927, 928 (Fla. 2d DCA 2001), the court listed the factors that could allow a jury to award a zero verdict regardless of any medical expenses incurred. These factors include pre-existing injuries with extensive treatments, lack of candor with treating physicians, videotapes that show actual physical capabilities, and expert medical opinions which conflict as to causation. Id. The court upheld the zero verdict because the evidence supported the fact the “jury could conclude that [the plaintiff] suffered no damages as a result of the ... accident.” Id.

In this case, there is no evidence that Pack’s prior neck injuries required *1287extensive treatments. There were no videotapes depicting her physical capabilities. Finally, both the plaintiff and defense experts agreed that Pack suffered at least a neck sprain as a result of the accident. Therefore, the jury had no reasonable basis to conclude that Pack suffered no injury as a result of the accident, and the verdict was against the manifest weight of the evidence.

Further, because Pack was awarded zero damages, the verdict is inadequate as a matter of law. “The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable [persons] could have returned that verdict.” Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969). Because the exception to the general rule, requiring payment of diagnostic testing, does not apply, Pack was entitled to at least the medical costs for reasonable diagnostic testing.

II. Letter of Protection

Any party may attack the credibility of a witness by exposing a potential bias. § 90.608(2), Fla. Stat. (2009). Evidence pertaining to a letter of protection between a plaintiff and her treating physician, when that treating physician testifies as an expert on the plaintiffs behalf, is relevant to show potential bias. See Carnival v. Jimenez, 112 So.3d 513, 520 (Fla. 2d DCA 2013); see also Allstate Inc. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999) (“A jury is entitled to know the extent of the financial relationship between the party and the witness.... ”).

Pack argues that evidence pertaining to a letter of protection, absent a referral relationship from the lawyer to the doctor, is not relevant according to this court’s prior ruling in Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011). In Katzman, this court held that a letter of protection is not sufficient in itself to allow discovery of an expert beyond that permissible under Florida Rule of Civil Procedure 1.280(b)(4)(A). This court stated that a referral from a lawyer to the expert witness doctor injects the doctor into the litigation and therefore the balance shifts in favor of allowing discovery. Katzman, 76 So.3d at 1064. However, this court did not state that a letter of protection is not relevant to show potential bias.

Similarly, Steinger, Iscoe & Greene v. GEICO General Insurance Co., 103 So.3d 200 (Fla. 4th DCA 2012) does not state that letters of protection are irrelevant to show potential bias. In Steinger, this court held that discovery of letters of protection was premature. Id. At 206. Steinger is distinguishable because, in that case, Geico sought discovery of all letters of protection between the law firm and four medical providers regardless of whether the letters of protection pertained to the plaintiff in that case. Id. at 203. The purpose of discovering the letters of protection in Steinger was to expose the extent of the financial relationship between the law firm and the treating physicians. Id. at 205. This court held that because the discovery went beyond that permissible under Florida Rule of Civil Procedure 1.280(b)(5)(A), it was premature absent a showing of a financially beneficial relationship between the law firm and the doctors, including a referral relationship. Id. at 206.

Both Katzman and Steinger are inappo-site to the instant case because they pertain to discovery of financial information beyond what is generally permissible under Florida Rule of Civil Procedure 1.280. Neither case stands for the proposition that evidence pertaining to a letter of protection between a plaintiff and her treating physician is not relevant to show a potential bias when that treating physician testifies as the plaintiffs medical expert. *1288Therefore, the trial court properly admitted the evidence pertaining to the letter of protection because it was relevant to show a potential bias.

Therefore, we reverse and remand for a new trial on damages for Pack’s undisputed, non-permanent neck sprain.1

Reversed and remanded for further proceedings.

WARNER, CONNER, JJ., and LEVENSON, JEFFREY, R., Associate Judge, concur.


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Cited By

  • Hernandez v. Gonzalez, 124 So. 3d 988 (Fla. 4th DCA 2013)
    …, 669 (Fla. 2d DCA 1982); Peek v. Stevens, 395 So. 2d 617, 617-18 (Fla. 5th DCA 1981); Ridenour v. Sharek, 388 So. 2d 222, 224 (Fla. 5th DCA 1980). As such, appellants suggest that this court’s recent decision in Pack v. Geico General Insurance Co., 119 So. 3d 1284 (Fla. 4th DCA 2013), supports their request for a new trial. In Pack, we reaffirmed the general rule that a plaintiff may recover the cost of medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident c…
  • Brown v. Mittelman, 152 So. 3d 602 (Fla. 4th DCA 2014)
    …“direct referral by the lawyer to the doctor” as one circumstance that creates a potential for bias. However, contrary to Dr. Brown’s assertion, we did not intend to limit discovery to that narrow situation.1 See, e.g., Pack v. Geico Gen. Ins. Co., 119 So. 3d 1284 [*605] (Fla. 4th DCA 2013) (recognizing that the potential bias arising from a letter of protection exists independent of any referral relationship). A doctor’s referral arrangements -with a law firm in other cases is a proper source for impeachment…
  • State Farm Mut. Auto. Ins. Co. v. Ferranti, 256 So. 3d 238 (Fla. 5th DCA 2018)
    …mage. Through pleadings and discovery, Ferranti asserted injuries to his neck, lower back, and hip. Ferranti moved for partial summary judgment on the issues of liability and causation. In doing so, he relied on Pack v. Geico General Insurance Co., 119 So. 3d 1284 (Fla. 4th DCA 2013), in which the court noted, "Generally, a plaintiff may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries. This is true whether or not the jur…

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