author: WALLACE, Judge.

text:
    Norman A. MOORE, II, Appellant, v. Deanne Schapell GILLETT and John Gillett, as natural father, legal guardian, and next friend of Byron John Gillett, Appellees.
    No. 2D11-1235.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.
    Rehearing Denied Sept. 20, 2012.

      Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, for Appellant.
    Amy S. Farrior and Raymond T. Elli-gett, Jr., of Buell & Elligett, P.A.; and Justin C. Johnson of Justin C. Johnson & Associates, P.A., St. Petersburg, for Appel-lees.
   WALLACE, Judge.

Deanne Schapell Gillett and John Gillett, her husband, sued Norman A. Moore, II, for damages because of personal injuries that Mrs. Gillett sustained in an automobile accident. A jury awarded Mrs. Gillett approximately $250,000 for her past and future medical expenses. However, the jury found that Mrs. Gillett did not sustain a permanent injury and did not award the Gilletts anything for noneconomic damages.

The trial court set aside the jury’s verdict and ordered a new trial based on alleged multiple instances of misconduct by Mr. Moore’s lead attorney (defense counsel). Mr. Moore appeals the trial court’s order setting aside the jury’s verdict and granting the Gilletts a new trial (the new-trial order). Most of the instances of defense counsel’s conduct referenced in the new-trial order were either not improper or were not the subject of a preserved objection. To the extent that defense counsel’s conduct was both improper and not the subject of a preserved objection, we conclude that it did not rise to the level of fundamental error. For these reasons, we reverse the order and remand for the entry of a final judgment in accordance with the jury’s verdict.

I. THE FACTUAL BACKGROUND

The automobile accident occurred on January 19, 2000. Mr. Moore, who was driving a full-size pickup truck, ran a stop sign and struck the car driven by Mrs. Gillett. The force of the impact caused Mrs. Gillett’s car to spin 180 degrees and to collide with Mr. Moore’s truck a second time. Although the Gilletts filed their complaint in 2002, the case did not go to trial until September 2010, more than ten years after the accident.

At the beginning of the trial, Mr. Moore admitted liability for the accident. Mrs. Gillett dropped her claim for lost earnings and some of her medical claims. Mr. Gil-lett dropped his claim for loss of consortium. Thus the primary issues at trial were the nature and the extent of Mrs. Gillett’s injuries resulting from the accident. The trial, which lasted ten days, was largely a battle of medical and other expert witnesses.

Mrs. Gillett claimed that she had sustained permanent injuries to her left shoulder, left knee, neck, and lower back because of the accident. She also claimed that her injuries and resultant surgeries had caused her to develop a painful condition referred to at the trial as “reflex sympathetic dystrophy” (RSD). RSD is also known as “complex regional pain syndrome” (CRPS). In closing argument, the Gilletts’ attorney requested an award of over nine million dollars.

Mr. Moore conceded that Mrs. Gillett had been injured in the accident, but he denied that she had suffered a permanent injury. The defense contended that either preexisting conditions or degenerative changes — or both — caused the problems that Mrs. Gillett experienced with her left shoulder, left knee, neck, and lower back. The defense denied that Mrs. Gillett had RSD. Instead, the defense contended-that Mrs. Gillett had a preexisting somatization disorder. In closing argument, the defense suggested that it would be appropriate for the jury to award Mrs. Gillett some amount for her medical bills, but nothing more.

At the conclusion of the trial, the jury returned a verdict awarding Mrs. Gillett $26,434.40 for past medical expenses and $225,000 for future medical expenses. However, the jury found that Mrs. Gillett did not sustain a permanent injury because of the accident and awarded nothing to the Gilletts for noneconomic damages.

II. THE PROCEDURAL BACKGROUND

The Gilletts sought a new trial based solely on the alleged misconduct of defense counsel both before and during the trial. The Gilletts did not claim that the verdict was inadequate or against the weight of the evidence. They did not file a motion for additur.

After a daylong hearing, the trial court announced that it would set aside the verdict and grant the Gilletts a new trial. In a subsequent written order, the trial court described the trial as a “contentious” one, which resulted in “basically a defense verdict.” However, the trial court did not find that the verdict was against the weight of the evidence. Instead, the sole basis of the order is the alleged misconduct of defense counsel. The trial court did not base its decision to grant the Gilletts a new trial on any single act or incident. Instead, the trial court emphasized that it based its ruling on “the totality” of defense counsel’s conduct:

[T]he Court has examined the cumulative nature of the defense attorney’s conduct over the course of the ten-day trial and finds that there was prejudicial conduct that made it impossible to have a fair and impartial trial for the Plaintiffs.
In reviewing and considering the totality of the defense attorney’s conduct, from voir dire to closing argument, the Court finds that his conduct cast doubt on the integrity and overall fairness of the trial, thus necessitating a new trial.

The trial court also found that defense counsel’s conduct violated “the Standards of Professional Courtesy and Professionalism adopted by the Sixth Judicial Circuit and the Florida Bar Rules of Professional Conduct.”

The structure of the new-trial order bears some examination. The order begins with a series of six preliminary findings describing various acts of alleged misconduct by defense counsel. After these and other preliminary observations, the order lists separately eight “highlights of the major issues on which the Court relied in granting” a new trial. The trial court repeated two of its preliminary findings in the eight “highlights” that form the stated basis for the new-trial order. The trial court mentioned the six other alleged acts of misconduct for the first time as “highlights.”

Taking into account the preliminary findings and the highlights in the new-trial order, the trial court attributed twelve separate types of misconduct to defense counsel. Several of the alleged acts of misconduct involve repetitive behaviors. We will not detail all of these alleged acts and behaviors here. Of the twelve asserted acts of misconduct, the Gilletts’ argument in support of the new-trial order places substantial emphasis on four grounds as involving preserved error. The four grounds involving a claim of preserved error are as follows:

[ (1) Djuring the opening and closing, the defense attorney improperly referenced claims for damages made by Plaintiff that were dropped prior to the commencement of trial....
[ (2) Djuring the direct examination of Defendant’s expert witness, Dr. John Shim, defense attorney elicited new opinion testimony from Dr. Shim that Plaintiff did not have Reflex Sympathetic Dystrophy (RSD). Prior to trial, Dr. Shim had indicated in his report that he was deferring to other physicians regarding RSD and the defense attorney made statements during Dr. Shim’s deposition that he would not be offering opinions on RSD. Plaintiffs objected to Dr. Shim’s testimony regarding RSD; however, the Court permitted Dr. Shim to testify regarding RSD, not realizing the contents of the doctor’s report or the exchange during the deposition which was presented at the hearing on the Amended Motion for Mistrial.
[ (3) Djuring the defense attorney’s direct questioning of Dr. Harold Linde, a defense witness, the defense attorney, again and continuously, improperly testified by leading during his questioning of the witness despite countless sustained objections and warnings from the Court.
[ (4) D]ue to defense attorney’s discovery violations and the failure to conduct an exhibit exchange as required under the Court’s Order Setting Jury Trial & Pretrial Conference dated December 30, 2009, and reaffirmed by the Court’s Uniform Pre-Trial Conference Order dated August 24, 2010, defense counsel improperly conducted a trial by ambush through the testimony of Defendant’s expert witness, Dr. Wilhelmina Korev-aar.

We will consider these four grounds separately in the discussion that follows.

After the trial court entered its new-trial order, Mr. Moore filed a motion to recuse the trial judge. The trial judge granted the motion, and the case was reassigned to Judge Amy Williams. Mr. Moore sought a reconsideration of the new-trial order, but Judge Williams declined to set the order aside.

III. THE STANDARD OF REVIEW

We review a circuit court’s order granting a motion for a new trial for abuse of discretion. Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998). Moreover, “it takes a stronger showing of error in order to reverse an order granting a new trial than an order denying a new trial.” Harris v. Grunow, 71 So.3d 186, 188 (Fla. 3d DCA 2011) (quoting Greens to You, Inc. v. Gavelek, 967 So.2d 318, 320 (Fla. 3d DCA 2007)). Thus we begin with the presumption that the trial court properly exercised its discretion, and we will not disturb the trial court’s ruling absent a clear abuse of that discretion. Manasse, 707 So.2d at 1111. However, “such orders must nevertheless be supported by the record or by findings of influence outside the record.” Reynolds v. Towne Mgmt. of Fla., Inc., 426 So.2d 1011, 1013 (Fla. 2d DCA 1983). Hence, a ruling that is unsupported by the record constitutes a clear abuse of discretion. See Dobbins v. Dobbins, 584 So.2d 1113, 1116 (Fla. 1st DCA 1991); Earnest v. Se. Fid. Ins. Co., 422 So.2d 1092, 1093 (Fla. 3d DCA 1982). Accordingly, where a trial court’s finding of cumulative error is the basis for the alleged misconduct of defense counsel, and that finding is unsupported by the record, the reviewing court must reverse an order granting a new trial. Snapper Power Equip., Inc. v. Dozer, 605 So.2d 1012, 1013 (Fla. 4th DCA 1992).

IV. DISCUSSION

A. Improper References to “Dropped Claims.”

1. Background. An understanding of the trial court’s ruling on the “dropped claims” issue requires some explanation of the events occurring immediately before and at the beginning of the trial. At the pretrial conference, the Gilletts’ attorney (plaintiffs’ counsel) submitted a summary of Mrs. Gillett’s medical billings. This summary was sixteen pages long and contained eighty-three separate entries. Many of the entries included multiple billings. The medical billings included on the summary totaled $1,002,190.81. Plaintiffs’ counsel proposed to use the summary at trial in accordance with section 90.956, Florida Statutes (2010).

At the beginning of the trial, plaintiffs’ counsel filed a notice dropping a number of Mrs. Gillett’s claims, including a claim for past and future lost wages, a claim for lost earning capacity, and claims for six different medical conditions. One of the medical conditions that Mrs. Gillett chose not to pursue was a claim for migraine headaches.

After the announcement that Mrs. Gil-lett was dropping several of her claims and after the filing of an appropriate notice of dismissal, plaintiffs’ counsel made a motion in limine to prohibit any reference at trial to Mrs. Gillett’s medical conditions that were unrelated to the medical conditions for which claims remained to be tried. In support of this motion in limine, plaintiffs’ counsel asserted: “This morning plaintiffs filed a [notice] of dropping claims for things like migraine headaches, TMJ. We don’t believe those are relevant anymore as plaintiff is no longer making a claim for those medical conditions.” After some discussion with counsel, the trial court announced that it would deny the motion in limine.

After the denial of the motion in limine concerning unrelated medical conditions, the parties made their opening statements. During defense counsel’s opening statement, he addressed Mrs. Gillett’s primary complaint of RSD as follows:

You can’t find a reason for it. They don’t know what caused it. And I’ll talk more about that in a bit. But that’s the way you diagnose it. It’s a diagnosis of exclusion. We want [to] find out what’s wrong, off you go to RSD. Now, that’s what their primary claim is here, not the claim of headaches that was dropped[], etc., etc.
I’m going to deal with RSD before I get back to the substance of what I’m talking about. As far as RSD—

(Emphasis added.) At this point, plaintiffs’ counsel interrupted, and a bench conference ensued. Plaintiffs’ counsel objected, “[defense counsel] can’t say that, referring to the claims we’ve dropped.” The trial court agreed and instructed defense counsel that “to be mentioning the claims [that were] dropped would be inappropriate.” The bench conference concluded, and defense counsel continued his opening statement without another reference to the dropped claims.

At this point, two things are worthy of note. First, the trial court had previously declined to preclude any references at the trial to Mrs. Gillett’s “unrelated medical conditions.” However, during defense counsel’s opening statement, the trial court cautioned him that it would be “inappropriate” to refer to such matters in the context of dropped claims. Although these two rulings can be reconciled, there is a certain tension between them. Defense counsel could easily have concluded from the denial of the motion in limine that comment on the dropped claims was permissible. Second, the trial court’s ruling on the objection to defense counsel’s isolated reference to the dropped claim for headaches was the first time that the trial court had informed defense counsel that he could not mention the dropped claims. Accordingly, defense counsel’s initial reference to the dropped claims could not constitute a violation of a prior court order because there was none.

During the trial, plaintiffs’ counsel introduced into evidence the summary of the medical billings that had been presented at the pretrial conference. However, plaintiffs’ counsel had not revised the summary to delete the charges attributable to the dropped claims. Thus the summary received in evidence, which totaled the billings at $1,002,190.81, included numerous billings representing the cost of treating a variety of medical conditions for which Mrs. Gillett was no longer making a claim.

After both sides had rested but before closing arguments, plaintiffs’ counsel addressed the discrepancy between the amount shown on the summary and the amount for past medical expenses that Mrs. Gillett was actually claiming. Out of the hearing of the jury, he announced, “We’ve made an adjustment to the medical bills. We’ve gone in and carefully pulled out anything that we believe is not RSD related. And our new medical number is $475,086.85 in the past.” Plaintiffs’ counsel proposed to address the problem by withdrawing the summary from evidence. Defense counsel objected because one of Mrs. Gillett’s treating physicians had testified extensively with reference to the summary. After extensive discussions with counsel, the trial court ultimately ruled that the summary would remain in evidence and that defense counsel could “use” it in his closing argument. In context, the trial court’s ruling that defense counsel could “use” the summary in his closing would necessarily include permission to comment on it.

In closing, defense counsel said, in pertinent part:

What followed after that, even though [Mrs. Gillett] did not have a blow to the head and had not lost consciousness, she went to a neurologist because of complaints of headaches. Now, they are not claiming headaches in this case at this point. However, if you go to the bills that they submitted for your evaluation for you to award, included in those numbers are the bills from Spiegel, a neurologist. And they told you they brought every relevant physician here? They didn’t bring Garner in. Dr. Garner is the other neurologist that was treating Mrs. Gillett.
As you can see from the summary, she treated her for TMJ, she treated her for headaches that they are not claiming here, but they included almost $50,000 in bills for Dr. Garner in the bills that they want you to have Norman Moore quote—

At this point, plaintiffs’ counsel objected and another bench conference ensued. Plaintiffs’ counsel asked for a curative instruction and claimed that defense counsel had “made a blatantly false statement.” In support, he argued that “we took any of those bills out and [defense counsel is] testifying to things that are not true.” The trial court did not overrule or sustain the objection, and plaintiffs’ counsel did not ask for a ruling on his objection. However, the trial court expressly declined to give a curative instruction and told plaintiffs’ counsel that he was “free to discuss that in your part.” Thereafter, defense counsel discussed the bills included in the summary for approximately one-half page of the trial transcript without further objection by plaintiffs’ counsel.

2. Analysis. In the new-trial order, the trial court ruled that defense counsel “improperly referenced claims for damages made by Plaintiff that were dropped prior to the commencement of trial.” The Gilletts’ brief filed in support of the new-trial order does not direct us to any case law or other authority for the proposition that a reference to medical conditions for which claims were originally made but dropped at the beginning of trial is improper. Instead, the Gilletts argue that defense counsel violated “the trial court’s ruling during opening statement that mentioning dropped claims was inappropriate.” However, a review of the record reveals that defense counsel did not violate a trial court order by referencing the dropped claims.

During opening statement — as we have already seen — defense counsel did not mention the dropped claims again after the trial court’s initial ruling that further reference to the dropped claims would be “inappropriate.” Defense counsel did not violate the trial court’s ruling during closing argument either. The evidence in the case relative to the dropped claims changed substantially once plaintiffs’ counsel introduced the summary of the medical billings into evidence. More than one-half of the dollar amount of the billings in the summary represented medical conditions for which Mrs. Gillett was no longer making a claim at trial. Because the summary was in evidence, defense counsel was certainly entitled to point out to the jury that the summary included billings for conditions related to claims that Mrs. Gillett was no longer making. The trial court recognized this point when it ruled that defense counsel could “use” the summary in his closing. The trial court also properly permitted plaintiffs’ counsel to reply to defense counsel’s comments.

In short, defense counsel complied with the trial court’s rulings concerning the dropped claims. His comments were not improper. The summary introduced into evidence by plaintiffs’ counsel overstated what Mrs. Gillett was actually claiming for past medical expenses by more than one hundred percent. To the extent that there was a problem at the trial concerning the dropped claims, plaintiffs’ counsel created it by introducing the summary into evidence and using it to question one of his witnesses. It follows that the record does not support the grant of a new trial based on defense counsel’s - references to the dropped claims.

B. Eliciting New Opinion Testimony fi'om Dr. John Shim.

1. Background. In the second ground, the trial court ruled that defense counsel “elicited new opinion testimony from Dr. [John] Shim that Plaintiff did not have Reflex Sympathetic Dystrophy (RSD).” A review of this basis for the new-trial order requires some background.

Dr. Shim is an orthopedic surgeon whom the defense retained to conduct an independent medical examination (IME) of Mrs. Gillett. The focus of Dr. Shim’s report and deposition testimony was on Mrs. Gillett’s shoulder, knee, neck, and lower back problems. During the deposition conducted by plaintiffs’ counsel, Dr. Shim testified that he was not a specialist in RSD or related disorders. Accordingly, Dr. Shim said that he would defer to other specialists regarding a diagnosis of RSD. Later in the deposition, defense counsel volunteered that Dr. Shim would not be offering any opinions concerning whether Mrs. Gillett had RSD.

The substantial majority of Dr. Shim’s testimony for the defense at trial — as at his deposition — concerned his opinions about Mrs. Gillett’s shoulder, knee, neck, and lower back problems. However, defense counsel did ask Dr. Shim whether he observed some of the clinical signs of RSD during his physical examination of Mrs. Gillett. When defense counsel began this line of inquiry, plaintiffs’ counsel objected, and the following colloquy ensued at the bench:

THE COURT: [Defense counsel], you can ask him what are the signs or symptoms, but to read him from the list one by one would be leading. That’s what I’m meaning.
[PLAINTIFFS’ COUNSEL]: One other thing, [defense counsel] deposed him, and he readily admits he’s not an RSD person, he’s not given RSD opinions, he’s not an RSD expert, he doesn’t treat RSD. So, he’s outside the scope of his report and testimony, you know, injecting new opinions that [Mrs. Gillett] doesn’t have any signs or symptoms. He clearly disqualifies himself in his report as clearly orthopedic.
[THE COURT]: You can ask him, certainly, those questions on cross-examination and—
[PLAINTIFFS’ COUNSEL]: Well, it’s—
THE COURT: He’s asked him are you — are you familiar with RSD. He says he has a general knowledge of it. So, we’ll let [defense counsel] continue to ask questions without leading just to explore that a little bit, and I’ll keep that in mind but appreciate the information.
[PLAINTIFFS’ COUNSEL]: And the problem is he testifies all the RSD stuff in, in effect. And you, in effect, have an opinion from—
THE COURT: Then you’ll be standing up and—
[PLAINTIFFS’COUNSEL]: I will.
[THE COURT]: — and objecting.
[PLAINTIFFS’ COUNSEL]: I will.
THE COURT: Okay. Thank you.

(Emphasis added.) Thereafter, defense counsel resumed his examination of Dr. Shim concerning whether he noted some of the clinical signs of RSD on his physical examination of Mrs. Gillett. Dr. Shim testified — without further objection that such testimony was outside the scope of his prior report and deposition — that he did not observe such signs. Dr. Shim never testified that Mrs. Gillett did not have RSD. Indeed, on cross-examination, plaintiffs’ counsel twice asked Dr. Shim if he was offering opinions about RSD. Dr. Shim responded in the negative both times.

2. Analysis. We begin our review of this point by noting that the statement in the new-trial order that defense counsel elicited opinion testimony from Dr. Shim that Mrs. Gillett did not have RSD is inaccurate. Although Dr. Shim testified that he did not observe any clinical signs of RSD on his physical examination of Mrs. Gillett, he repeatedly disclaimed offering any opinions about a diagnosis of RSD. In overruling the objection to defense counsel’s line of questions about Dr. Shim’s observation of clinical signs of RSD, the trial court told plaintiffs counsel to object if Dr. Shim offered an opinion on RSD. After Dr. Shim’s testimony resumed, plaintiffs’ counsel never objected on that ground.

The trial court linked the issue of Dr. Shim’s testimony with other examples of defense counsel’s alleged misconduct. However, this ground for the new-trial order is more properly analyzed as an evidentiary issue under Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981), and its progeny. Cf. Spalding v. Zatz, 70 So.3d 692, 698 (Fla. 5th DCA 2011) (noting that the claim of “surprise” testimony in that case might also be viewed as an issue of attorney misconduct). In Binger, the Supreme Court of Florida announced the test for trial courts to apply in determining whether an undisclosed witness should be precluded from testifying because of prejudice to the objecting party:

[A] trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case.... If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Id. at 1313-14 (footnotes omitted). Under Binger, “the test for exclusion of evidence for non-disclosure during pretrial discovery is whether the opposing party was prejudiced in his preparations for trial.” Gouveia v. Phillips, 823 So.2d 215, 222 (Fla. 4th DCA 2002). “The Binger analysis should be applied where a medical expert changes his or her opinion, resulting in surprise and prejudice to the opposing party and necessitating a new trial.” Allstate Prop. & Cas. Ins. Co. v. Lewis, 14 So.3d 1230,1234 (Fla. 1st DCA 2009).

Applying a Binger analysis here, two reasons compel the conclusion that the admission of the testimony of Dr. Shim under review does not warrant a new trial. First, Dr. Shim’s testimony did not represent a change or reversal of his opinions. Dr. Shim’s testimony that he did not observe any signs of RSD on his physical examination of Mrs. Gillett is not the equivalent of offering an opinion that she did not have RSD. Dr. Shim emphasized during direct examination by defense counsel that he was not offering any opinions about RSD. Plaintiffs’ counsel confirmed this point with Dr. Shim twice on cross-examination.

Second, to the extent that Dr. Shim’s testimony about the absence of clinical signs of RSD can be viewed as a new opinion, plaintiffs’ counsel could not have been prejudiced in his preparation for trial by the testimony. The testimony, which formed a limited part of the direct examination, was nothing more than a recital of Dr. Shim’s findings on his physical examination of Mrs. Gillett. The testimony was consistent with Dr. Shim’s prior report. Moreover, the testimony did not prejudice plaintiffs’ counsel in his preparation for trial. The question of whether Mrs. Gillett had RSD was one of the central issues in the case. Plaintiffs’ counsel was fully prepared to address this issue, and he did. Under these circumstances, Binger and its progeny do not support the grant of a new trial based on Dr. Shim’s testimony. See Spalding, 70 So.3d at 698 (finding no prejudice where the objecting party was prepared to address the claimed “surprise” testimony with his own contrary evidence). In its new-trial order, the trial court failed to consider that Dr. Shim’s testimony could not have prejudiced plaintiffs counsel in his preparation for trial.

A consideration of the other evidence presented at trial on the RSD issue demonstrates the absence of prejudice in another way. In addition to Dr. Shim, five doctors offered testimony at trial reporting negative clinical examinations of Mrs. Gil-lett for RSD. Of these five other doctors, three testified for Mrs. Gillett, and two testified for Mr. Moore. One of Mrs. Gil-lett’s treating physicians even testified that Mrs. Gillett did not have RSD when he saw her. Dr. Linde, Mrs. Gillett’s treating neuropsychologist, described Mrs. Gillett as “an outlier,” i.e., the presentation of her symptoms was “extreme” for an RSD patient. He also testified that Mrs. Gillett scored “off the charts” on the hysteria scale of a standard psychological test. In addition, the defense offered expert opinion testimony from other doctors that Mrs. Gillett did not have RSD. In the absence of Dr. Shim’s testimony about his negative clinical observations, there was ample evidence to support a conclusion by the jury that Mrs. Gillett did not have RSD. The new-trial order does not explain how Dr. Shim’s limited testimony about negative clinical signs for RSD could have affected the verdict under these circumstances. For these reasons, the trial court abused its discretion in granting a new trial based on defense counsel’s examination of Dr. Shim.

C. Leading Questions During the Direct Examination of Dr. Linde.

1. Background. Harold Linde, Psy. D., is Mrs. Gillett’s treating neuropsychologist. Mr. Moore called Dr. Linde as a defense witness. During defense counsel’s direct examination of Dr. Linde, the trial court sustained objections by plaintiffs’ counsel that defense counsel was “leading” or “testifying” fifteen times. We have carefully examined the questions at issue. Although a few of them may have been leading, most were not.

Nevertheless, the trial court eventually warned defense counsel as follows: “We are going down the leading path again. One more time and your questions of [Dr. Linde] are over. All right?” Despite the absence of a further objection, the trial court interrupted defense counsel in the middle of his next question to the witness and terminated the direct examination of Dr. Linde. Then, plaintiffs’ counsel proceeded directly to his cross-examination of the witness. Plaintiffs’ counsel did not make a contemporaneous motion for mistrial based on the ground of leading questions.

2. Analysis. We conclude that defense counsel’s alleged “testifying” by leading questions posed to Dr. Linde will not support the new-trial order for three reasons. First, plaintiffs’ counsel did not make a contemporaneous motion for mistrial based on the purportedly leading questions. Indeed, plaintiffs counsel acquiesced in the remedy chosen by the trial court — the termination of defense counsel’s direct examination of the witness. This was a severe remedy for asking leading questions. And under these circumstances, this issue was unpreserved. See Companioni v. City of Tampa, 51 So.3d 452, 455-56 (Fla.2010); Millar Elevator Serv. Co. v. McGowan, 819 So.2d 145, 153 (Fla. 2d DCA 2002); Bew v. Williams, 373 So.2d 446, 448-49 (Fla. 2d DCA 1979); Dorsey v. Reddy, 931 So.2d 259, 265 (Fla. 5th DCA 2006); Puza v. Winn-Dixie Supermarkets, Inc., 526 So.2d 696, 697 (Fla. 4th DCA 1988).

Second, although the trial court sustained objections to many of defense counsel’s questions to Dr. Linde on the basis that they were “leading” or involved counsel’s “testifying,” the questions posed were generally not leading or otherwise improper. “An objection may be made to a question as leading because it is, in fact, leading or because objecting counsel is attempting to disrupt the smooth flow of testimony.” Murrell v. Edwards, 504 So.2d 35, 36 (Fla. 5th DCA 1987). Here, plaintiffs’ counsel appears to have made the objections for the latter reason, not the former.

Third, even if the questions had been leading and a contemporaneous motion for mistrial had been made, defense counsel’s propounding of leading questions would not warrant a new trial. The Gil-letts have not cited any Florida decision in a civil case that has required a new trial based on objections to leading questions. In fact, the case law suggests that — at least in civil cases — leading questions do not result in an error that will warrant a new trial. See Puza, 526 So.2d at 697 (reversing an order for new trial for the defendant based on the trial court’s conclusion “that the plaintiffs counsel had asked an excessive number of leading questions”); Murrell, 504 So.2d at 36 (“Leading questions are not often analyzed in appellate opinions because they seldom, if ever, are the basis for error on appeal.”).

Here, the trial court viewed defense counsel’s “leading” questions posed to Dr. Linde as only one part of the “totality” of defense counsel’s alleged misconduct before and during the trial. At the hearing on the motion for new trial, the trial court acknowledged that the alleged “leading” questions posed to Dr. Linde were not sufficient — considered in isolation — to warrant granting the plaintiffs a new trial. Undeniably, this ground does not support the new-trial order.

D. “Trial by Ambush” Through the Testimony of Wilhelmina Korevaar, M.D.

1. Background. In the fourth ground, the trial court found that “defense counsel improperly conducted a trial by ambush through the testimony of Defendant’s expert witness, Dr. Wilhelmina Korevaar.” The new-trial order attributes the “ambush” to alleged discovery violations by defense counsel and a failure to conduct a pretrial exhibit exchange as required by court order. In support of the new-trial order, the Gilletts explain that the “ambush” resulted from Dr. Korevaar’s opinion — not disclosed in her report — that Mrs. Gillett had a somatization disorder. We think this ground for the new-trial order actually conflates three separate issues: (1) unspecified discovery violations, (2) the violation of a court order requiring a pretrial exchange of trial exhibits, and (3) the alleged expression by a defense medical expert witness — Dr. Korevaar— of an opinion not disclosed in her report. As in the ground for the new-trial order involving Dr. Shim, we think that a Éinger analysis — not a focus on alleged attorney misconduct — is the appropriate way to analyze the third issue.

Dr. Korevaar is a board-certified anesthesiologist with a subspecialty in pain management. She enjoys a reputation as an expert on RSD, and her office is located in a Philadelphia suburb. Dr. Korevaar conducted an IME of Mrs. Gillett in Tampa on August 20, 2009, more than one year before the trial began. Dr. Korevaar’s report was available shortly thereafter.

For reasons unexplained in our record, plaintiffs’ counsel did not schedule Dr. Ko-revaar’s deposition until a date in August 2010, approximately one month before trial. Plaintiffs’ counsel cancelled that deposition because defense counsel was in trial in another case on the scheduled date. Plaintiffs’ counsel rescheduled the deposition but then cancelled it again for reasons that we need not detail here.

On the morning of Friday, September 17, the fifth day of the trial, plaintiffs’ counsel informed the trial court that he had not yet deposed Dr. Korevaar and requested an opportunity to depose her before she testified. Although defense counsel planned to call Dr. Korevaar to testify that afternoon, the trial court ruled that plaintiffs’ counsel would have an opportunity to depose Dr. Korevaar before she testified. In accordance with the trial court’s ruling, plaintiffs’ counsel deposed Dr. Korevaar that evening.

During her deposition, Dr. Korevaar testified in accordance with her prior report that Mrs. Gillett did not have RSD. However, Dr. Korevaar also explained that a diagnosis of a somatization disorder could reasonably explain Mrs. Gillett’s unusual constellation of symptoms. The latter statement was not included in Dr. Korev-aar’s prior report.

The defense did not call Dr. Korevaar to testify until Thursday, September 23, the ninth day of the trial. Before Dr. Korev-aar took the stand, plaintiffs’ counsel filed a motion in limine seeking to preclude Dr. Korevaar from testifying that Mrs. Gillett had a somatization disorder. Plaintiffs’ counsel argued that the Gilletts would be prejudiced if Dr. Korevaar were allowed to offer this opinion because it was not previously disclosed in her report. Defense counsel responded that plaintiffs’ counsel was not prejudiced because he had already covered the issue of a somatization disorder with Dr. Linde and the question of malingering with two medical doctors. After hearing argument, the trial court granted the motion in limine.

Next, Dr. Korevaar took the stand and testified to her opinion that Mrs. Gillett did not have RSD. Dr. Korevaar honored the trial court’s ruling on the motion in limine and did not mention a somatization disorder. During defense counsel’s direct examination of Dr. Korevaar, he asked her questions about Mrs. Gillett’s documented physical complaints that had no apparent physical cause. These physical complaints were generally inconsistent with a diagnosis of RSD; some of them were consistent with a diagnosis of a somatization disorder. Plaintiffs’ counsel objected several times that defense counsel was leading Dr. Ko-revaar through the signs of a somatization disorder without using the term. The trial court overruled these objections and allowed defense counsel to proceed. With this background, we turn to an analysis of this ground for the new-trial order.

2. Analysis. We will analyze separately the three issues combined in this ground for the new-trial order. On the first issue, we note that the trial court’s finding that defense counsel had committed discovery violations relative to Dr. Korevaar’s testimony is puzzling. Plaintiffs’ counsel acknowledged receiving Dr. Korevaar’s report, and he had a year before the trial to schedule her deposition. To the extent that defense counsel may have been at fault for the inability of plaintiffs’ counsel to take Dr. Korevaar’s deposition before trial, plaintiffs’ counsel received the remedy he sought — the opportunity to take the deposition before Dr. Korevaar testified. Indeed, although Dr. Korevaar resided in Pennsylvania, defense counsel acquiesced in postponing her testimony. Dr. Korevaar did not take the witness stand until six days after her deposition was taken.

On the second issue, the trial court’s reference to the failure to conduct a pretrial exhibit exchange in the context of Dr. Korevaar’s testimony is also puzzling. Granted, one might fault both attorneys for failing to conduct a pretrial exchange of exhibits as required by the trial court’s order. The nature of the case — a two-week trial featuring voluminous medical records and complicated expert witness testimony — makes this omission particularly difficult to understand. Nevertheless, plaintiffs’ counsel had the opportunity to review Dr. Korevaar’s records before she testified on the ninth day of the trial. Moreover, an exhibit exchange would not have revealed Dr. Korevaar’s undisclosed opinion — expressed in her deposition but not at trial — that Mrs. Gillett had a soma-tization disorder. The trial court could have sanctioned counsel for violating the court order requiring a pretrial exchange of exhibits. Nevertheless, the grant of a new trial is not an appropriate sanction for a dereliction by counsel that could not have affected the verdict. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1029 (Fla.2000); Platz v. Auto Recycling & Repair, Inc., 795 So.2d 1025, 1026 (Fla. 2d DCA 2001).

Thus the first two issues concerning Dr. Korevaar’s testimony do not support the new-trial order because they have no foundation in the record. An analysis of the third issue leads to the conclusion that the trial court abused its discretion in granting a new trial based on a conclusion that Dr. Korevaar’s testimony resulted in a trial by “ambush.” Dr. Korevaar’s trial testimony did not produce any surprises.

As we have already noted, the trial court granted the motion in limine precluding Dr. Korevaar from offering an opinion that Mrs. Gillett had a somatization disorder. Dr. Korevaar scrupulously observed the trial court’s ruling. For this reason, a Binger analysis with regard to Dr. Korevaar’s testimony is arguably unnecessary. Even so, Dr. Korevaar’s testimony about Mrs. Gillett’s physical complaints — some of which were consistent with a somatization disorder — could not have prejudiced plaintiffs’ counsel in his trial preparation. In 2001, Marc A. Reis-kind, M.D., one of Mrs. Gillett’s treating physicians, had diagnosed her with “questionable somatoform disorder.” Somati-zation disorder is one of the recognized somatoform disorders. Dr. Reiskind’s medical records were received in evidence at the trial. Dr. Linde, Mrs. Gillett’s treating neuropsychologist, testified at trial that he had diagnosed Mrs. Gillett with a somatization disorder. John Leaven-good, M.D., who had conducted an IME of Mrs. Gillett, testified that she had a soma-tization disorder. Like the diagnosis of RSD, plaintiffs’ counsel knew that a diagnosis of somatization disorder was an issue in the case long before the trial began, and he was fully prepared to address the issue. Here again, the trial court failed to consider that Dr. Korevaar’s testimony could not have prejudiced plaintiffs’ counsel in his preparation for trial. See Spalding, 70 So.3d at 698 (finding no prejudice where the objecting party was prepared to address the claimed “surprise” testimony with his own contrary evidence). For these reasons, the issues concerning Dr. Korevaar’s testimony do not support the new-trial order.

V. CONCLUSION

In conclusion, none of the grounds stated in the new-trial order which the Gilletts contend rest on preserved error are sufficient to warrant a new trial. Nor are the preliminary findings and the “highlights” stated in the new-trial order considered in their totality, or in any combination of fewer grounds, sufficient to warrant a new trial. To the extent that any of the grounds stated in the new-trial order do not rest on preserved error, we conclude that they are insufficient to constitute fundamental error under the demanding standard of Murphy, 766 So.2d at 1027-31. We have not discussed every argument made by the Gilletts in their answer brief. However, we have considered all of their arguments, and we find them to be insufficient to warrant affirmance of the new-trial order.

Accordingly, we reverse the trial court’s new-trial order. On remand, the trial court shall reinstate the jury’s verdict and enter a final judgment in accordance with it.

Reversed and remanded with directions.

WHATLEY and CRENSHAW, JJ., Concur.

      . Mr. Moore's appellate counsel did not represent him in the trial court.

      . Mr. Gillett continued to pursue a claim under section 768.0415, Florida Statutes (1999), for the loss of parental consortium on behalf of one of their minor children.

      . "Complex regional pain syndrome (CRPS), formerly Begum Syndrome, is a chronic progressive disease characterized by severe pain, swelling and changes in the skin. It often affects an arm or a leg and may spread to another part of the body and is associated with dysregulation of the autonomic nervous system resulting in multiple functional loss, impairment and disability.... The cause of this syndrome is currently unknown. Precipitating factors include injury and surgery, although there are documented cases that have no demonstrable injury to the original site.” Complex regional pain syndrome (Apr. 26, 2012, 7:21 a.m.), http://en.wikipedia.Org/w/ index.php?title=Complex_regional_pain_ syndrome&oldid=489276891

      . "Somatization disorder (also Briquet's syndrome or hysteria) is a somatoform disorder characterized by recurring, multiple, clinically significant complaints about pain, gastrointestinal, sexual and pseudoneurological symptoms. Those complaints must begin before the individual turns 30 years of age, and could last for several years, resulting in either treatment seeking behavior or significant treatment. Individuals with somatization disorder typically visit many doctors in pursuit of effective treatment. Somatization disorder also causes challenge and burden on the life of the caregivers or significant others of the patient.” Somatization disorder (Mar. 4, 2012, 7:20 a.m.), http://en.wikipedia.Org/w/ index.php?title=Somatization_disorder& oldid=480107991 (footnotes omitted).

      . We have not overlooked the Gilletts' argument in support of the order granting a new trial based on the unpreserved grounds. According to the Gilletts, a consideration of the unpreserved grounds cumulatively with the preserved error entitles her to a new trial “because the level of misconduct exhibited by defense counsel throughout the trial satisfies Murphy [v. Int'l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000) ].”

      . While the trial continued, the trial judge graciously allowed the parties to use a hearing room at the courthouse to review the pertinent documents, including Mrs. Gillett's voluminous medical records.

      . "In psychology, a somatoform disorder is a mental disorder characterized by physical symptoms that suggest physical illness or injury — symptoms that cannot be explained fully by a general medical condition, direct effect of a substance, or attributable to another mental disorder (e.g.[,] panic disorder). The symptoms that result from a somatoform disorder are due to mental factors. In people who have a somatoform disorder, medical test results are either normal or do not explain the person’s symptoms. Patients with this disorder often become worried about their health because the doctors are unable to find a cause for their health problems. This causes severe stress, due to preoccupations with the disorder that portrays an exaggerated belief about the severity of the disorder. Symptoms are sometimes similar to those of other illnesses and may last for several years. Usually, the symptoms begin appearing during adolescence, and patients are diagnosed before the age of 30 years.” Somatoform disorder (Apr. 22, 2012, 8:55 p.m.), http://en.wikipedia.org/ w/index.php?title=Somatoform_disorder& oldid=488711043 (footnotes omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hebert MICHEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2767.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Aders v. State, 67 So.3d 368 (Fla. 4th DCA 2011).

GROSS, HAZOURI and CONNER, JJ., concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Jan GROSSMAN, as Personal Representative of the Estate of Laura Grossman, deceased, Appellee.
    No. 4D11-916.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Sept. 28, 2012.
    Gordon James III and Eric L. Lundt of Sedgwick LLP, Fort Lauderdale and Gregory G. Katsas of Jones Day, Washington, DC, for appellant.
    Steven J. Hammer and Jonathan Gdan-ski of Schlesinger Law Offices, P.A., Fort Lauderdale, and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
   PER CURIAM.

R.J. Reynolds Tobacco Company challenges the order awarding prevailing party costs to Jan Grossman, personal representative of the deceased. The underlying judgment has been reversed and remanded for a new trial on Phase II issues. See R.J. Reynolds Tobacco Co. v. Grossman, 96 So.3d 917, 2012 WL 2400887 (Fla. 4th DCA 2012). Accordingly, the costs judgment based on that judgment must be reversed as well. See Mulato v. Mulato, 734 So.2d 477, 478 (Fla. 4th DCA 1999) (citation omitted).

Reversed.

STEVENSON, HAZOURI and GERBER, JJ., concur.


text:
    Aaron JOHNS, Appellant, v. CITY OF SANFORD and Johns Eastern Company, Inc., Appellees.
    No. 1D11-4672.
    District Court of Appeal of Florida, First District.
    July 24, 2012.
    Rehearing Denied Sept. 20, 2012.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Lamar D. Oxford and Jeffry Branham of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellees.
   PER CURIAM.

AFFIRMED. See Punsky v. Clay County Sheriff’s Office, 18 So.3d 577, 584 (Fla. 1st DCA 2009) (“[I]f the employer’s medical testimony shows that several non-work related factors or conditions are the cause of a heart attack, and such evidence is accepted and credited by the trier of fact, such testimony could be found sufficient as competent and substantial evidence to rebut the statutory presumption [in section 112.18, Florida Statutes,] and establish non-industrial causation”).

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


author: GERBER, J.

text:
    Justin and Selma SORONSON, individually, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, a corporation, Appellee.
    No. 4D10-3234.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Rehearing Denied Sept. 21, 2012.

      Timothy H. Crutchfield of Mintz Trupp-man, P.A., North Miami, and Leslie Go-lembiewski, Orlando, for appellants.
    Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   GERBER, J.

The insureds appeal the circuit court’s final summary judgment in favor of the insurer. The insureds primarily argue that their untimely pre-suit notice of the alleged loss and untimely pre-suit submission of a sworn proof of loss did not preclude them from recovery under the policy. We disagree. We conclude that the insureds’ untimely pre-suit notice of the alleged loss and untimely pre-suit submission of a sworn proof of loss created a presumption of prejudice to the insurer, which the insureds failed to rebut, thereby precluding the insureds from recovery under the policy. Thus, we affirm.

From the insurer’s motion for summary judgment, the insureds’ response, and the insurer’s reply, we discern the following undisputed material facts. In October, 2005, Hurricane Wilma allegedly damaged the insureds’ roof. The insureds’ policy provides that “[ajfter a loss ... [the insureds] shall ... give immediate notice to [the insurer]” and shall “submit to [the insurer], within 60 days after the loss, [the insureds’] signed, sworn proof of loss.” The policy further provides: “No action shall be brought unless there has been compliance with the policy provisions.” The insureds did not give immediate notice of the alleged loss to the insurer and did not submit to the insurer a sworn proof of loss within 60 days after the alleged loss.

Instead, more than three years later, in February, 2009, the insureds filed a claim for the alleged loss. They stated that an inspection performed earlier that month made them aware of roof damage allegedly resulting from Hurricane Wilma.

The insurer investigated the claim. The investigation included an inspection of the roof. In May, 2009, the insurer sent the insureds a letter stating, in pertinent part:

... [The inspector] did not find any ... physical loss to the roof which could be directly attributed to Hurricane Wilma.
Furthermore ... our ability to independently determine the cause and date of loss for the roof damage claim has been compromised. Specifically, your failure to provide immediate notice of the loss, your failure to display the damage, and failure to maintain complete and accurate records of the repairs completed, has compromised our ability to arrive at a fair coverage determination ....

The letter then referred the insureds to the policy provisions stating, among other things, that “[a]fter a loss ... [the insureds] shall ... give immediate notice to [the insurer]” and “submit to [the insurer], within 60 days after the loss, [the insureds’] signed, sworn proof of loss.”

In December, 2009, the insureds submitted a sworn proof of loss to the insurer. Later that month, the insureds sued the insurer for breaching the policy by failing to pay the claim.

The insurer’s motion for summary judgment argued that the insureds materially breached their duties under the policy by, among other things, not giving immediate notice of the alleged loss and not submitting a sworn proof of loss within 60 days after the loss. According to the insurer, the insureds’ material breach of their duties under the policy relieved the insurer of its duties under the policy.

The insureds’ response to the motion argued that they complied with the policy by giving immediate notice of the loss as soon as they discovered the loss in February, 2009. The insureds conceded that they did not submit the sworn proof of loss within 60 days after they discovered the loss. However, the insureds argued that their failure to submit a sworn proof of loss within 60 days after they discovered the loss did not prejudice the insurer and therefore was not a ground for denying coverage. According to the insureds, conditions did not change between the discovery of the loss and their submission of the sworn proof of loss.

The insureds further argued that even if the delayed discovery rule were not applicable, the policy provisions requiring them to give immediate notice of the loss and submit a sworn proof of loss within 60 days of the loss were cooperation clauses and, therefore, the issue of whether their untimely notice and untimely submission of a sworn proof of loss materially breached those provisions is a jury question. See Schnagel v. State Farm Mut. Auto. Ins. Co., 843 So.2d 1087, 1038 (Fla. 4th DCA 2003) (“Where ... an insured cooperates to some degree [with a cooperation clause], the issue of whether there has been a material breach of the insurance contract is one for a jury — not the trial judge.”) (citation omitted). The insureds supported this argument with their own affidavit. In the affidavit, the insureds claimed that any breach by them of the policy provisions was not material because they did not make any repairs to the roof following Hurricane Wilma, and no comparable windstorm events occurred after Hurricane Wilma. Thus, the insureds claimed, “While the damage to the roof may have increased since 2005, the work necessary to repair the damage has not changed. The roof needs to be replaced, whether done in 2005 or 2009.”

In reply, the insurer argued that the insureds’ contention of having complied with the policy by reporting the loss “upon its discovery” improperly attempted to rewrite the policy. The insurer further argued that the policy provisions which the insureds breached were conditions precedent to suit, and not cooperation clauses, and therefore the insurer need not show prejudice. In support of the latter argument, the insurer cited Goldman v. State Farm, Fire General Insurance Co., 660 So.2d 300, 303-04 (Fla. 4th DCA 1995), for the proposition that “an insurer need not show prejudice when the insured breaches a condition precedent to suit.... On the other hand, if the provision is a cooperation clause, the burden would be on the insurer to demonstrate substantial prejudice before a breach would preclude recovery under the policy.” (citations and footnote omitted).

After a hearing, the circuit court entered a one-sentence order stating that the insurer’s motion was “Granted. Goldman v. State Farm, 660 So.2d 300 (Fla. 4th DCA 1995).” The court then entered a final judgment in favor of the insurer.

This appeal followed. Our review is de novo. See Chandler v. Geico Indem. Co., 78 So.3d 1293, 1296 (Fla.2011) (when the issue on appeal stems from the trial court’s ruling on summary judgment based upon the interpretation of an insurance contract, the appellate court’s standard of review is de novo) (citations omitted).

We agree with the insurer that the policy provisions requiring the insureds to give immediate notice of the loss and submit a sworn proof of loss within 60 days of the loss were conditions precedent to suit, and not cooperation clauses, and that the delayed discovery rule does not apply. An insurance contract “must be construed in accordance with the plain language.” Id. at 1300 (citation and internal quotations omitted). Here, the policy’s plain language states that “[ajfter a loss ... [the insureds] shall ... give immediate notice to [the insurer]” and shall “submit to [the insurer], within 60 days after the loss, [the insureds’] signed, sworn proof of loss.” The policy further provides: “No action shall be brought unless there has been compliance with the policy provisions.” Such language causes the giving of immediate notice of the loss and the submission of a sworn proof of loss within 60 days of the loss to become conditions precedent to suit. See Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla.1985) (“A notice of accident in most insurance policies is a condition precedent to a claim. It was so designated in the policy in this case.... A failure to cooperate clause, on the other hand ... is a condition subsequent. ...”); Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513-14 (Fla. 5th DCA 2007) (the insured’s obligation under an insurance policy to provide the insurer with a sworn proof of loss within 60 days after loss constituted a condition precedent to suit where the policy stated: “No suit or action may be brought against us unless there has been full compliance with all policy terms.”).

Despite the fact that a notice of loss and a sworn proof of loss are conditions precedent to suit, however, our supreme court long has held that “[s]uch a condition can be avoided by a party alleging and showing that the insurance carrier was not prejudiced by noncompliance with the condition.” Bankers, 475 So.2d at 1218. In other words, “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Id. (citations omitted).

Applying that principle to this case, the insureds’ untimely pre-suit notice of the alleged loss and untimely pre-suit submission of the sworn proof of loss is presumed to have prejudiced the insurer. Thus, the burden shifted to the insureds to show that the insurer was not prejudiced by their untimely pre-suit notice of the alleged loss and the untimely pre-suit submission of the sworn proof of loss. This burden shifting is consistent with the burden shifting which occurs on a motion for summary judgment when the movant has met the initial burden of demonstrating the nonexistence of any genuine issue of material fact. See Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (“A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counterevidenee sufficient to reveal a genuine issue.”).

Here, the insureds failed to come forward with counterevidence sufficient to reveal a genuine issue of material fact as to whether the insurer was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss and untimely pre-suit submission of the sworn proof of loss. The insureds’ evidence consisted of their own affidavit, attached to which were unsworn copies of reports from the engineers who inspected the insureds’ roof. In the affidavit, the insureds claimed that any breach by them of the policy provisions was not material because they did not make any repairs to the roof following Hurricane Wilma, and no comparable windstorm events occurred after Hurricane Wilma. Thus, the insureds claimed, “While the damage to the roof may have increased since 2005, the work necessary to repair the damage has not changed. The roof needs to be replaced, whether done in 2005 or 2009.” At best, the insureds’ affidavit merely adopts unsworn statements that Hurricane Wilma damaged their roof and that their roof needs to be replaced as a result. Their affidavit does not present sufficient counterevidence to overcome the insurer’s presumption of prejudice. Therefore, the insureds properly suffered an adverse final judgment. Compare Bankers, 475 So.2d at 1218 (“[The insured] should have shown that [the insurer] suffered no prejudice from this unreasonable delay. [The insured] failed to present any evidence on this issue and properly suffered an adverse final judgment.”), with Stark v. State Farm Fla. Ins. Co., 95 So.3d 285 (Fla. 4th DCA 2012) (reversing summary judgment for the insurer where, among other things, the insurer’s investigator allegedly told the insureds’ public adjuster “that there appeared to be storm damage to the [insureds’] roof.”).

We have considered the insureds’ other arguments and conclude without further discussion that those arguments lack merit.

Affirmed.

TAYLOR and LEVINE, JJ., concur.

      . In reaching this decision, we clarify our opinion in Kroener v. Florida Insurance Guaranty Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011). There, in affirming a summary judgment for the insurer, we held: “[W]e agree with the trial court's ruling that, as a matter of law, notice to the insurer of a claim of loss more than two years and two months after the loss occurred was not prompt notice; the untimely reporting of the loss violated the insurance policy and was sufficient to bar the claim.” Id. at 916 (citation omitted). That holding was based upon a record similar to this case, where the insurer argued that it was prejudiced by the insureds’ untimely pre-suit notice of the alleged loss, and the insureds did not come forward with counterevidence sufficient to reveal a genuine issue as to whether the insurer was prejudiced. Kroener should not be interpreted as having deviated from the prejudice analysis described in Bankers.


author: ROTHENBERG, J.

text:
    CENTENNIAL HOMEOWNERS ASSOCIATION, INC., Appellant, v. DOLOMITE CO., INC., Appellee.
    No. 3D11-2966.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Rehearing Denied Sept. 25, 2012.
    G. David O’Leary; William J. Motyczka, Miami, for appellant.
    Restani, Dittmar & Hauser, and Helen Ann Hauser, Coral Gables, for appellee.

      Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

Centennial Homeowners Association, Inc. (“Centennial”) appeals from an order granting Dolomite Co., Inc.’s (“Dolomite”) motion in limine to exclude evidence in Centennial’s betterment action, filed pursuant to section 66.041, et seq., Florida Statutes (2009), and from a final judgment entered in favor of Dolomite following a jury trial. We affirm.

H.G. Enterprises at Centennial, Inc. (“the developer”) began development of a residential community, including improvements to common areas. The improvements to the common areas were made before the developer abandoned the community and while the developer had legal title to the common areas. Thereafter, in 1999, Wottsamatta Company (“Wottsmat-ta” or “Dolomite’s predecessor-in-interest”) purchased the common areas at a sheriffs sale for the benefit of the developer’s creditors. Within a few weeks of the sheriffs sale, Centennial moved to intervene and sought to set aside the sale. Centennial was given an opportunity to submit proof of its ownership of the common areas, but after it failed to do so, in 2000, the trial court entered a final judgment confirming the sale.

In 2003, Wottsmatta commenced an ejectment action against Centennial. After Wottsmatta sold the common areas to Dolomite, Dolomite was substituted as the plaintiff in the ejectment action. In 2008, Dolomite obtained a final judgment of ejectment against Centennial, and in 2010, this Court per curiam affirmed the final judgment of ejectment. Centennial Homeowners Ass’n v. Dolomite Co., 30 So.3d 506 (Fla. 3d DCA 2010).

Centennial filed a timely betterment action against Dolomite, pursuant to section 66.041, et seq., Florida Statutes (2009). Centennial sought compensation for improvements to the common areas that were made by the developer before the developer abandoned the community, and improvements that were subsequently made by Centennial while Centennial was in possession of the common areas. Dolomite filed a motion in limine to exclude evidence as to the permanent improvements made by the developer. The trial court granted the motion in limine, and therefore, at trial, Centennial was limited to introducing evidence as to the permanent improvements it allegedly made while in possession of the common areas. In a special jury verdict form, the jury found that, while Centennial occupied the tract of land, it did not make any “permanent improvements.” Thereafter, pursuant to the jury’s verdict, the trial court entered final judgment in favor of Dolomite.

In this appeal, Centennial contends that the trial court erred by granting Dolomite’s motion in limine to exclude evidence as to the improvements made by the developer. We disagree.

“The Betterment cause of action was created to prevent unjust enrichment by compensating a party that has lost an ejectment case for any value of improvements that were made by the losing party and are received by the successful party along with the land.” Centennial Homeowners Ass’n v. Dolomite Co., 47 So.3d 863, 864 (Fla. 3d DCA 2010) (emphasis added). Specifically, pursuant to section 66.041(3), the party filing the betterment petition must establish that when he or she “made the improvements or purchased the property improved, he or she believed the title which he or she held or purchased to the land thus improved to be a good and valid title.”

Dolomite’s motion in limine pertained solely to the improvements that undisput-edly were made by the developer. Therefore, as the developer’s permanent improvements to the common areas were not made by Centennial and Centennial never held title to or “purchased the property improved,” it is irrelevant whether Centennial actually believed it held good and valid title to the improved land. Under these circumstances, the trial court properly excluded evidence as to the developer’s permanent improvements to the common areas, as Centennial cannot establish the factors set forth in section 66.041. Accordingly, we affirm the order granting the motion in limine and the final judgment entered in favor of Dolomite.

Affirmed.

      . Section 66.041 provides:
      Betterment, petition. — If a judgment of eviction is rendered against defendant, within 60 days thereafter, or if he or she has appealed, within 20 days after filing the mandate affirming the judgment, defendant may file in the court in which the judgment was rendered a petition setting forth that:
      (1) Defendant had been in possession and that he or she or those under whom defendant validly derived had permanently improved the value of the property in controversy before commencement of the action in which judgment was rendered;
      (2) Defendant or those under whom defendant validly derives held the property at the time of such improvement under an apparently good legal or equitable title derived from the English, Spanish, or United States Governments or this state; or under a legal or equitable title plain and connected on the records of a public office or public offices; or under purchase at a regular sale made by an executor, administrator, guardian or other person by order of court; and
      (3)When defendant made the improvements or purchased the property improved, he or she believed the title which he or she held or purchased to the land thus improved to be a good and valid title. The petition shall demand that the value of the improvements be assessed and compensation awarded to defendant therefor.

      . Centennial did not challenge the jury's finding that Centennial did not make any "permanent improvements” while occupying the subject property.


author: SCHWARTZ, Senior Judge.

text:
    Peguy DELVA, Appellant, v. The CONTINENTAL GROUP, INC., Appellee.
    No. 3D11-2964.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Rehearing Denied Sept. 18, 2012.

      McGuinness & Gonzalez, Lawrence J. McGuinness and Juliana Gonzalez, for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson, Andrew L. Rodman and Bayardo Aleman, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The discrete, single issue in this case is whether the Florida Civil Rights Act, section 760.10, Florida Statute, prohibits discrimination in employment on the basis of pregnancy. Although there was no doubt as to the sufficiency of the allegation that the plaintiff was discriminated against on this basis, the trial judge dismissed the complaint for failure to state a cause of action on the ground that there was no such right. We agree.

Two district courts have addressed this question. In Carsillo v. City of Lake Worth, 995 So.2d 1118, 1119 (Fla. 4th DCA 2008), review denied, 20 So.3d 848 (Fla.2009), the Fourth District held that there was such a right. In O’Loughlin v. Pinchback, 579 So.2d 788, 790 (Fla. 1st DCA 1991), the First District held that there was not, stating:

In General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. However, in 1978, in response to the Gilbert decision, Congress amended Title VII by enacting the Pregnancy Discrimination Act of 1978 (PDA). 42 U.S.C. § 2000e(k). The PDA specifies that discrimination on the basis of pregnancy is sex discrimination, and therefore violative of Title VII. Florida has not similarly amended its Human Rights Act to include a prohibition against pregnancy-based discrimination.

O’Loughlin, 579 So.2d at 791 (footnote omitted).

We believe this holding in O’Loughlin is in accord with the Act, and is by far the better reasoned decision. We therefore adopt it as our own. Accord DuChateau v. Camp Dresser & McKee, Inc., 822 F.Supp.2d 1325 (S.D.Fla.2011); Whiteman v. Cingular Wireless, LLC, 273 Fed.Appx. 841 (11th Cir.2008) (affirming summary judgment for employer where district court found that pregnancy was not a protected class under the Florida Civil Rights Act); Boone v. Total Renal Labs., Inc., 565 F.Supp.2d 1323, 1326 (M.D.Fla.2008) (“This Court agrees with those courts that have found that because the Florida legislature did not add language similar to the PDA [Title VII of the Federal Civil Rights Act as amended by Pregnancy Discrimination Act (PDA) ] to the FCRA when it was enacted in 1992 — after O’Loughlin — the legislature did not intend to include a proscription on pregnancy discrimination in the FCRA.”); Fernandez v. Copperleaf Golf Club Cmty. Ass’n, No. 05-286, 2005 WL 2277591 at *1 (M.D.Fla.2005) (“While plaintiff may be correct that the Florida Civil Rights Act allows a more extensive remedy than under the federal statute, the fact remains that pregnancy discrimination is not prohibited by the Florida Civil Rights Act and therefore the state statute provides no remedy for pregnancy discrimination.”); Frazier v. T-Mobile USA, Inc., 495 F.Supp.2d 1185, 1187 (M.D.Fla.2003) (“This Court is of the opinion that the FCRA does not provide for a claim of pregnancy-based discrimination.”); Swiney v. Lazy Days R.V. Ctr. Inc., No. 00-1356, 2000 WL 1392101 (M.D.Fla.2000) (relying on O’Loughlin and dismissing claim for pregnancy discrimination under FCRA); Zemetskus v. Eckerd Corp., No. 8:02-CV1939-T-27TBM (M.D.Fla. Apr. 1, 2003) (citing O’Loughlin and dismissing FCRA-based pregnancy discrimination-claim); Perrin v. Sterling Realty Mgmt., Inc., No. 3:02-CV-8044-20HTS (M.D.Fla. Nov. 4, 2002) (“As the legislature did not include the language from the PDA, it is presumed that it was aware of the O’Loughlin opinion and did not intend to include pregnancy-based discrimination in the FCRA.”); Hammons v. Durango Steakhouse of Bradenton, No. 8:01-CV-2165-T-23MAP (M.D.Fla. Mar. 7, 2002).

We certify conflict with Carsillo.

Affirmed.

      . The Florida Civil Rights Act of 1992 (FCRA) provides in section 760.10:
      It is an unlawful employment practice for an employer: (a) to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

      . There is no question that the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C. § 2000e-2, explicitly provides that protection:
      It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
      The Pregnancy Discrimination Act of 1978, (PDA), 42 U.S.C. § 2000e(k), specifies that discrimination because of pregnancy is sex discrimination and violative of Title VII: "The terms 'because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy[.]”
      After the ruling below, Ms. Delva in fact brought an action under the federal act in the Dade County Circuit Court. After the case was removed to the federal district court, however, she voluntary dismissed the case without explanation.

      . Ms. Delva's complaint alleged in part:
      1. Count I is a pregnancy discrimination claim seeking declaratory and injunctive relief and damages to redress violations of Chapter 760, Fla. Stat. (the "Act”).
      2. Plaintiff is female and she was discriminated against by Defendant because of her pregnancy.
      3. Plaintiff worked for Defendant as a Front Desk Manager from October 2005 until October 2010.
      4. In February 2010, Plaintiff told Defendant’s Property Manager and her Supervisor [ ] that she was pregnant. Immediately thereafter, [her Supervisor] started to treat Plaintiff in a disparate manner by scrutinizing and criticizing her work and initially refusing to approve plaintiff’s transfer from the night shift to day shifts despite having a doctor’s note requiring such a transfer.
      5. Plaintiff complained ... that [her Supervisor] was treating her in a disparate manner due to her pregnancy.
      6. In response to Plaintiff’s complaint, contrary to Defendant’s policy of allowing its employees to earn extra income by working extra shifts, [her Supervisor] refused to allow Plaintiff to earn more income by covering shifts and instead hired a temporary employee.
      7. In July 2010, Plaintiff left on pregnancy leave. When Plaintiff was medically cleared to go back to work, Defendant never placed Plaintiff back on a work schedule. Similarly situated male employees who went out on medial leave were allowed to return to work.

      . Because the issue is not before us, we express no opinion as to the merits of the alternative holding of O’Loughlin, that the plaintiff could proceed under the FCRA on a federal preemption analysis.


text:
    Maximo Fermin NOVO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1555.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Rehearing Denied Sept. 18, 2012.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    Eric A. SMILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-228.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Rehearing Denied Sept. 19, 2012.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, POLEN and DAMOORGIAN, JJ., concur.


author: HAZOURI, J.

text:
    Rosalva COSTA, Appellant, v. Joseph Henry ABERLE, Appellee.
    No. 4D10-2461.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Rehearing Denied Sept. 25, 2012.

      Carlos A. Bodden of Ellis, Ged & Bod-den, P.A., and Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for Appellant.
    Shelley Senecal of Law Offices of Shelley Senecal, Fort Lauderdale, for Appellee.
   HAZOURI, J.

Rosalva Costa (plaintiff) appeals an order granting a motion for new trial in favor of Joseph Aberle (defendant) in a personal injury case. The motion was based upon special jury instructions given by the trial court after defense experts were allowed to testify that the course of treatment provided by the plaintiffs treating doctors was improper. Plaintiff argues that the trial court erred in granting the motion for new trial based upon the giving of these two special jury instructions. We agree and reverse for entry of a judgment consistent with the jury verdict.

This personal injury action arises out of a motor vehicle accident in which the plaintiff, who was a passenger in a vehicle, was rear-ended by the defendant’s vehicle. The defendant conceded liability, leaving only the issues of causation and damages to be tried by the jury.

Before trial the plaintiff filed a motion in limine to prevent defense experts from testifying that the plaintiffs doctors committed malpractice or medical negligence, that the treatment was inappropriate, and that the plaintiffs symptoms were the result of inappropriate treatment. Defense counsel responded that he was not going to argue malpractice but would simply present testimony that the surgery the plaintiff received was not “necessitated from the accident, there was no reason to perform it....” The court did not rule on the motion.

The testimony at trial revealed the following: Before the car accident, the plaintiff never suffered from pain in her back or neck. Shortly after the accident, she felt pain in her back and could not sleep. She went to a chiropractor and received treatment for about three months. Her lower back did not respond to the treatment and the chiropractor referred her to a neurosurgeon, Dr. Heldo Gomez, Jr., M.D., who ordered an MRI and sent her to a pain management specialist, Dr. Stuart Krost, M.D.

The plaintiff received trigger point injections from Dr. Krost, which made her feel better for a short period of time before the pain returned. She eventually underwent surgery with Dr. Gomez. She first had a discogram, a diagnostic procedure to determine whether her back pain was caused by disc problems. The procedure revealed a leaking disc, and Dr. Gomez performed a lumbar percutaneous discectomy. After the surgery, plaintiff saw Dr. Krost again because the pain returned and she needed pain injections. She saw Dr. Krost for about five weeks of injections and thereafter received another series of injections from another doctor. According to her treating physician she reached maximum medical improvement, and was left with a permanent impairment of eighteen percent of the body as a whole.

During cross examination of Dr. Gomez, the defense suggested that he improperly used a particular device to treat the plaintiff. Three defense experts, a radiologist, an orthopedic surgeon, and a neurologist, testified that the surgery performed by Dr. Gomez was not related to the accident in question. However, over objection, these doctors testified that based upon their review of the records and examination of the plaintiff, there was no reason to perform a discectomy and the surgery was unnecessary. One doctor testified that Dr. Gomez’s course of treatment didn’t make any sense.

During closing argument defense counsel argued that prior to the discectomy, Dr. Gomez over-pressurized the disc during the discogram “just to make sure that the next step takes place. There are obviously many reasons why she had pain on that day.” The clear implication of this argument was that the discogram caused the disc to leak. Defense counsel also argued the surgery took place because Dr. Gomez was motivated to make money. He argued that surgery was not medically necessary.

During the charge conference, the plaintiff requested special instructions based on Stuart v. Hertz and Dungan v. Ford, The Stuart instruction stated, essentially, that any damages the plaintiff incurred from treatment she obtained due to the accident would be regarded as caused by the defendant’s negligence. The gist of the Dungan instruction was that the question of necessity of treatment is to be viewed from the plaintiffs perspective. The plaintiff argued that the defense crossed the line by suggesting that Dr. Gomez was negligent in his treatment of the plaintiff. The court agreed to give the proposed instructions.

The jury returned a verdict finding that the defendant was a legal cause of loss; injury, or damage to the plaintiff and awarded $78,132.28 for past medical expenses and $75,000.00 for future medical expenses. The jury, however, found no permanent injury and did not award any damages for pain and suffering.

The defendant then moved for new trial, arguing that the special instructions were not appropriate under the facts of this case. The defense contended that it had not argued that Dr. Gomez committed malpractice but simply argued that the treatment rendered by Dr. Gomez was not caused by the accident. The trial court granted a new trial.

An order granting a new trial is reviewed for abuse of discretion. Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 644 (Fla. 4th DCA 2008). “Generally, trial courts enjoy greater discretion when they grant a new trial on the ground that the verdict is contrary to the manifest weight of the evidence than when they grant a new trial on a purely legal issue.” Id. at 645. See also Office Depot, Inc. v. Miller, 584 So.2d 587, 589 (Fla. 4th DCA 1991) (latitude given to trial judges due to their superior vantage point “is circumscribed when the motion concerns purely legal matters. Thus, the closer an issue comes to being purely legal in nature, the less discretion a trial court enjoys in ruling on a new trial motion.”); Allstate Prop. & Cas. Ins. Co. v. Lewis, 14 So.3d 1230, 1233 (Fla. 1st DCA 2009) (citing favorably Office Depot, Inc.); Bulkmatic Transport Co. v. Taylor, 860 So.2d 436, 444 (Fla. 1st DCA 2003) (“ ‘[WJhen the issue under review is essentially legal, the ruling is not entitled to the broad deference generally afforded a trial court’s decision to override a jury’s verdict in cases where the court found the verdict contrary to the manifest weight of the evidence.’”) (citation omitted).

The giving of a particular instruction is reviewed under a mixed standard of de novo and abuse of discretion, since a trial court’s discretion is limited by the case law. McConnell v. Union Carbide Corp., 937 So.2d 148, 152-53 (Fla. 4th DCA 2006) (citation omitted). “[T]he merits of instructions will be judged by an examination of the complete charge and if, as a whole, the law is fairly stated the portions singled out for attack will avail the appellant nothing.” Grimm v. Prudence Mut. Cas. Co., 243 So.2d 140, 143 (Fla.1971) (citations omitted). In order for a jury instruction to result in a miscarriage of justice, it must not only be erroneous or an incomplete statement of the law but also be confusing or misleading. Gross v. Lyons, 721 So.2d 304, 306 (Fla. 4th DCA 1998) (citing Florida Power & Light Co. v. McCollum, 140 So.2d 569 (Fla.1962)), approved, 763 So.2d 276 (Fla.2000).

With respect to the Stuart instruction, we find that it was appropriate in this case given the defense experts’ testimony that Dr. Gomez over-pressurized a disc on purpose in order to justify the surgery, and that he used the wrong equipment in treating the plaintiff. The defendant argues that the testimony was intended only to demonstrate that the treatment was not causally related to the car accident. We find the argument to be disingenuous. In Nason v. Shafranski, the defendants also claimed that they were “merely arguing ... that the surgery was unnecessary, not that the physician committed medical malpractice.” 33 So.3d 117, 121 (Fla. 4th DCA 2010). We rejected the argument and observed that “Florida law recognizes that ‘unnecessary surgery may constitute medical malpractice where it deviates from the standard of care.’ ” Id. (citation omitted). It is certainly permissible for the defense to argue that the treatment the plaintiff underwent was not caused by the accident. It is an entirely different thing to argue, as the defendant did in the instant case, that the treatment was inappropriate and unnecessary. The defendant’s argument could have led the jury to believe that if the plaintiffs doctor was wrong, the plaintiff couldn’t recover damages for the treatment she underwent, even if the injuries she suffered in the car accident caused her to pursue treatment and she reasonably relied on her doctor’s advice.

That brings us to the Dungan instruction, which was requested in order to address the barrage of testimony that the surgery was unnecessary. We find that under the specific facts of this case, where the defense experts suggested that Dr. Gomez purposely rendered inappropriate and unnecessary treatment, the standard instructions were not adequate. Additionally, the special instruction, when read together with the standard instructions, and in light of the evidence introduced at trial, did not misstate the law or conflict with the standard instructions.

The defendant focuses on the jury’s award of the full amount requested for past and future medical expenses as evidence that it was misled by the Dungan instruction. The defendant fails to explain how the jury was misled. The defendant contended that the treatment rendered by Dr. Gomez was not caused by the accident and was unnecessary and improper. The defendant never contended that the plaintiff acted unreasonably in seeking medical treatment or in consenting to the treatment recommended by her doctor. Therefore, the verdict fails to reveal that the jury was misled. Based on the foregoing, we find that the trial court was correct when it gave the requested instructions and erred in granting a new trial based on the instructions. We reverse and remand for entry of a judgment consistent with the jury verdict.

GROSS and CONNER, JJ., concur.

      . 351 So.2d 703 (Fla.1977). The trial court gave the following instruction:
      Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skills of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment of the physician or surgeon.

      . 632 So.2d 159 (Fla. 1st DCA 1994). The trial court gave the following instruction:
      When determining whether medical expenses and services were “reasonably necessary,” you must determine reasonableness from the perspective of the injured party, rather than from the perspective of a medical expert.