11 Fla. L. Weekly Supp. 1113a
Insurance — Personal injury protection — Discovery — Willful and deliberate failure to obey court’s discovery order — Sanctions
A-1 MOBILE MRI (Edwin Hurtado), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, General Civil Division. Case No. 03-13705 COCE (56). August 23, 2004. Linda R. Pratt, Judge. Counsel: Robert G. Nichols, Nichols Williams, P.A., Ft. Lauderdale, for Plaintiff. Wendy Brewster Maroun.
AMENDED ORDER ON PLAINTIFF’S MOTIONFOR SANCTIONS REGARDING DEFENDANT’SDISCOVERY VIOLATIONS
THIS CAUSE having come on to be heard on Plaintiff’s Motion for Sanctions Regarding Defendant’s Discovery Violations and the Court having reviewed the Motion and heard argument of the respective attorneys, and otherwise advised in the Premises, the Court therefore makes the following findings:
(A) On August 25, 2003, the Court entered a Pretrial Order requiring the parties to file a Pretrial Catalogue no later than October 1, 2003, which must contain, among other things, a list of all witnesses, and that discovery must be completed no later than 10 days prior to the beginning of trial period. The Order states that, “At trial, the parties shall be strictly limited to witnesses and exhibits disclosed in the pretrial stipulation.”
(B) On April 4, 2004, this Court entered an Order requiring the production of all medical records in the Defendant’s possession with regard to this case, as well as requiring that “The deposition of the adjuster must be taken before May 7, 2004 and the Defendant shall make her available.”
(C) Thereafter, the Defendant was properly noticed for a Deposition Duces Tecum, on May 3, 2004, of the corporate representative with the most knowledge of the PIP file in this case, which included a specific list of documents to bring to the deposition. The witness produced by the Defendant testified that she was not prepared to testify regarding several relevant matters that were included on the subpoena duces tecum. The Court also finds that the Plaintiff’s Counsel was obstructed by improper objections by the Defendant Attorney. In addition, the Defendant improperly terminated the deposition before it had been completed.
(D) Thereafter, the Defendant was again properly noticed for a Deposition Duces Tecum, on June 17, 2004, of the corporate representative with the most knowledge of the PIP file in this case, which included a specific list of documents to bring to the deposition. The Defendant’s corporate representative improperly failed to appear at the deposition. No Motion for Protective Order was filed by the Defendant, and no objection was made by the Defendant during the intervening Pretrial Conferences before this Court.
(E) The Defendant failed to list Dr. Neil Fleischer, D.C., or to designate any “expert”, in its Pretrial Catalogue.
The Court therefore finds that the Defendant has willfully, and deliberately failed to obey this Court’s Discovery Order of April 4, 2004, as well as the Pretrial Order of August 25, 2003 which caused prejudice of the Plaintiff. It is, therefore,
ORDERED AND ADJUDGED that said Motion be GRANTED as follows:
Pursuant to Florida Rule of Civil Procedure 1.380, the Court therefore imposes the following sanctions against the Defendant, United Automobile Insurance Company:
(1) The Court hereby prohibits the Defendant from calling Dr. Neil Fleischer as a witness at trial, or using the contents of any report prepared by him during the trial;
(2) The Court hereby strikes the Defendant’s Corporate Representatives (including all United Auto corporate representatives listed on the Defendant’s Pretrial Catalogue Witness List);
(3) The Court hereby orders that the following facts be taken as established in this case: That the insured, Edwin Hurtado, provided timely notice to the Defendant, United Automobile Insurance Company, of the subject motor vehicle accident and the resulting claim.
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