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Ryder Truck Rental Inc. v. Perez6/10/1998
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
LOWER TRIBUNAL NO. 93-1470
An Appeal from the Circuit Court for Dade County, Ronald Friedman, Judge.
Ryder Truck Rental, the defendant below, appeals from a final judgment in a negligence action. We reverse and remand for a new trial.
In October, 1989, Gloria Perez was injured in an automobile collision with a Ryder truck. Ryder admitted liability; the only issues to be tried were the permanence and quantum of Perez' damages. In 1994, the trial court ruled that each party would be allowed to present the testimony of only one expert medical witness per specialty. Perez was examined by two Independent Medical Examiners [IMEs]: one orthopedist and one neurologist; Ryder listed them as its expert witnesses. During discovery, Perez identified Drs. Gordon and Herskowitz as her two treating physicians. Dr. Herskowitz had treated Perez for thirteen months in 1990 and 1991, and opined in discovery that she did not have a permanent injury and had reached maximum medical improvement. Dr. Gordon was Perez' treating orthopedist during the same period, and also opined that she had no permanent injury and had reached maximum medical improvement.
Ryder listed Doctors Gordon and Herskowitz as witnesses. The court ruled that Ryder would not be allowed to call those doctors as witnesses because allowing the treating physicians to render their permanency opinions would violate the "one expert per specialty rule." However, the trial court continued the trial for 3 ½ months to give Ryder the opportunity to have Perez' two treating physicians perform updated examinations of the plaintiff. Ryder could then choose to present expert opinions in each specialty from either the defense expert or the treating physician, but not both. Ryder continued to argue that it had the right to present two same-specialty expert opinions on permanence, on the basis that the treating physicians were not expert witnesses, but were fact witnesses whom the jury should hear. Ryder further argued that it needed to present the opinions of both the treating physicians and the IMEs because they had examined Perez at different times after the accident. The trial court adhered to its "one witness per specialty" rule, and restated its ruling that Perez' treating physicians could not be called by Ryder to testify on the issue of permanence.
The trial court abused its discretion in denying Ryder the right to elicit fact testimony from Perez' treating physicians on the issue of whether Perez suffered from a permanent injury. Treating physicians do not acquire their "expert knowledge for the purpose of litigation but rather simply in the course of attempting to make [their] patient well." Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981). Drs. Gordon and Herskowitz, as Perez' treating physicians, should not have been classified as expert witnesses, but as ordinary fact witnesses not impeded by the "one expert per specialty" rule imposed by the trial court. See Carpenter v. Alonso, 587 So. 2d 572 (Fla. 3d DCA 1991) (treating physician not subject to trial court's limitation of one expert witness per side in medical malpractice suit). Reversed and remanded for a new trial.
COPE and GODERICH, JJ., concur.
Ryder Truck Rental v. Perez Case No. 96-2223
JORGENSON, J., Dissenting.
I respectfully Dissent. Although the court correctly states that treating physicians are witnesses of a different nature than expert witness IMEs, the court misapprehends the nature of the testimony that Ryder sought to elicit from Perez' treating physicians. Ryder did not se
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