12 Fla. L. Weekly Supp. 88a
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer and expert medical witness failed to comply with court order requiring production of reports of independent medical examinations performed by witness and 1099 forms reflecting compensation for IMEs, failure to comply is without excuse, and failure to provide timely and complete discovery resulted in unjust and undue prejudice to medical provider, expert witness is stricken
CENTRAL MAGNETIC IMAGING OPEN MRI OF PLANTATION, LTD., (a/a/o Tasha Cassanova), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 02-29159 SP 23. October 7, 2004. Myriam Lehr, Judge. Counsel: Kenneth J. Dorchak, Law Offices of Kenneth J. Dorchak, North Miami, for Plaintiff. Emilio Stillo, for Defendant.
ORDER STRIKING DEFENDANT’S EXPERT WITNESS
THIS CAUSE having come before the Court upon the Motion of the Plaintiff Striking Defendant’s Expert Witness, and after hearing argument of all counsel concerned and being advised of premises thereof, it is hereby:
ORDERED AND ADJUDGED that the Court makes the following finding:
1. The Plaintiff noticed the taking of the Defendant’s expert witness, Dr. Peter Millheiser, M.D. The deposition was set for April 27, 2004. In conjunction with said deposition, the Plaintiff served a subpoena duces tecum upon Dr. Millheiser. The subpoena commanded production of documents from Dr. Millheiser including copies of all examination reports for exams conducted pursuant to Section 627.736(7), Fla. Stat., for the years 2002 and 2003; copies of all payments received as compensation for performing exams pursuant to Section 627.736(7), Fla. Stat. for the years 2001, 2002, and 2003; copies of 1099 forms received from the Defendant for the years 2001, 2002, and 2003; and copies of 1099 forms received from Florida Medical Specialists from the years 2001, 2002 and 2003.
2. The Defendant’s attorney failed to appear for the April 27, 2004 deposition of Dr. Millheiser. Notwithstanding the absence of the Defendant’s counsel the Plaintiff proceeded with the deposition which lasted for only 1 hour. The deposition ceased after one hour due to Dr. Millheiser’s declaration that he could not continue any further due to the fact that he had to see patients. Despite having been served with a subpoena duces tecum, Dr. Millheiser, M.D. failed to produce any documents at the April 27, 2004 deposition.
3. As a result of Dr. Millheiser’s failure to produce any documents at the April 27, 2004 deposition, the Plaintiff filed a Motion to Compel. On May 3, 2004 the Plaintiff’s motion to compel was heard by the Court. On May 3, 2004 the Court ordered that Dr. Millheiser again appear at deposition on May 10, 2004 and that at said deposition Dr. Millheiser was to produce all IME reports or peer reviews issued in the past three months and that Dr. Millheiser was to produce 1099 forms issued to him by the Defendant for the year 2001, 2002 and 2003.
4. The parties appeared on May 10, 2004 at 11:00 a.m. for the deposition of Dr. Millheiser as ordered by the Court. The deposition did not go forward due to the absence of a court reporter and due the fact that Defendant had filed an emergency motion for protective order which motion was heard via telephone by the Court at 11:45 a.m. on May 10, 2004.
5. On June 9, 2004 the Court held yet another hearing regarding the deposition of Dr. Millheiser. This hearing was held as a result of a letter sent by Dr. Millheiser regarding his deposition. At said hearing the Court found that the Defendant had still not yet complied with the Court’s May 3, 2004 order insomuch as the IME reports and 1099 forms had not yet been produced. As a result the Court issued an order which stated that the Defendant was to produce the documents specified in the Court’s prior order dated May 3, 2004 and that compliance was to be made within 5 days. The Court’s order further stated that failure to comply shall result in an emergency hearing where the Court shall entertain sanctions, including the striking of Dr. Millheiser.
6. On June 24, 2004, 15 days after the Court’s order of June 9, 2004, the Defendant had still not produced the documents as required by the Court’s May 3, 2004 order thereby placing the Defendant in violation of the Court’s June 9, 2004 order. Due to the Defendant non-compliance, on June 24, 2004 counsel for the Plaintiff forwarded a letter to opposing counsel advising of the Defendant’s non-compliance with this Court’s order and, as a courtesy, providing the Defendant an additional 5 days to comply.
7. By July 22, 2004 the Defendant had still not provided the documents and thereby continued to be in violation of this Court’s orders dated May 3, 2004 and June 9, 2004. On July 22, 2004 counsel for the Plaintiff sent a letter to opposing counsel advising of the Defendant’s continued non-compliance with this Court’s orders. The letter from Plaintiff’s counsel demanded production of the documents and advised that such documents would be needed in advance of the third deposition of Dr. Millheiser which was by then reset for August 31, 2004.
8. On August 31, 2004 the parties appeared for the deposition of Dr. Millheiser. As of the date of the deposition the Defendant and Dr. Millheiser, M.D. had still failed to comply with the Court’s May 3, 2004 and June 9, 2004 orders. Dr. Millheiser and the Defendant failed to produce any of the documents which were ordered by the Court to have been produced.
9. The Court notes that the Plaintiff served a subpoena upon Dr. Millheiser’s accountant who were identified by Dr. Millheiser at the April 27, 2004 deposition as being in possession of the sought after 1099 forms. The subpoena was served and said accountants responded to Plaintiff’s counsel that they did not have such records.
10. The Court further notes that the Plaintiff set the deposition of the Defendant’s financial records custodian which deposition duces tecum was to have occurred on September 29, 2004. The Defendant’s financial records custodian failed to appear at the deposition and again the Plaintiff was prevented from obtaining the 1099 forms.
11. The Court finds that the Defendant and its witness, Dr. Peter Millheiser, M.D. have failed to provide discovery as required by this Court’s Orders dated May 3, 2004 and June 9, 2004. The Court finds that such failure to comply is without excuse. The Defendant and Dr. Millheiser had ample time to provide the requested discovery. The Court further finds that the Defendant’s failure to provide timely and complete discovery has resulted in undue and unjust prejudice to the Plaintiff.
IT IS THEREFORE ORDERED AND ADJUDGED that:
Dr. Peter Millheiser, M.D. shall be stricken as a witness from the Defendant’s list of witnesses and that said witness shall not be permitted to testify on behalf of the Defendant in this matter.
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