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Liberty Mutual Insurance Co. v. Wolfson12/27/2000
This is an action by an insured, Jeffrey Wolfson (Wolfson), against his uninsured motorist (UM) carrier, Liberty Mutual Insurance Company (Liberty Mutual), seeking coverage for injuries he sustained when an unidentified motorist struck him while he was walking. A jury trial resulted in a verdict in favor of Liberty Mutual, but the trial court granted Wolfson's motion for new trial.
Liberty Mutual appeals, arguing that the trial court erred in granting the motion for new trial based on improper opening and closing comments made by Liberty Mutual's counsel. Wolfson has filed a cross appeal, asserting error in the admission of evidence that his physician was convicted for narcotics sale, error in permitting evidence that Wolfson's expert's license was temporarily suspended after a peer review process, and error in allowing Liberty Mutual's accident reconstructionist to comment on Wolfson's credibility. We affirm, without discussion, the trial court's rulings on all issues raised in the appeal and cross appeal, except the issue relating to evidence from the doctor's peer review process, which we address in this opinion, for the court's benefit on retrial.
Wolfson sustained injuries when an unidentified motorist struck him while he was walking to his car; the force propelled him up and onto the hood of his car. Evidence of the extent of Wolfson's damages was introduced through three doctors, one of whom was Dr. Gelbard, the subject of the following discussion.
Just prior to Dr. Gelbard's testimony, it came to light that Liberty Mutual's counsel was involved in another case with Dr. Gelbard and had learned in that case about a peer review of Dr. Gelbard, which was underway at the hospital. Wolfson moved to exclude any testimony concerning the peer review. Liberty Mutual argued that the fact that Dr. Gelbard's privileges to perform surgeries at certain hospitals had been suspended was relevant to the issue of his competence.
Even though she did not have corroborating documentation to prove it, defense counsel planned to ask Dr. Gelbard whether it was true that his privileges had been suspended. Counsel assured the court that she could produce documentation at a later date. The court allowed counsel to pursue the line of questioning about Dr. Gelbard's peer review process, but ordered her to produce evidence to support her position in five days or suffer a mistrial if the jury entered a verdict in favor of the plaintiff.
Dr. Gelbard addressed the court during the sidebar conference, and explained that the peer review process is privileged and he cannot be asked about it. The court responded that if Dr. Gelbard was going to testify as an expert in this case, then the issue of suspension was relevant to his qualifications. The doctor explained to the court that during the peer review process, his privileges were temporarily suspended pending review, but they were reinstated at the end of the review. The doctor contended that having to disclose even the temporary suspension of his privileges waived his peer review privilege. The court agreed, but ruled that Liberty Mutual certainly had the right to tell the jury that Dr. Gelbard's privileges had been suspended because, on the other hand, if he had privileges all over the country, Wolfson would certainly wish to point that fact out.
Thereafter, Liberty Mutual's counsel questioned Dr. Gelbard about the suspension of his privileges to perform surgery in certain Broward hospitals and, specifically, the peer review process. Dr. Gelbard maintained, even during questioning, that information concerning the peer review process was privileged, but, when reminded by the court of its ruling, Dr. Gelbard relucta
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