12 Fla. L. Weekly Supp. 582a
Insurance — Personal injury protection — Discovery — Interrogatories — Failure to comply — Where court finds defendant in willful and wanton contempt of court for violating numerous orders to provide better answers to expert witness interrogatories, and medical provider has been prejudiced by failure to provide information needed to fully and fairly cross-examine experts at trial, insurer’s experts are stricken with prejudice
ORTHOPAEDIC CENTER OF SOUTH FLORIDA, P.A., as assignee of Fnu Luciana, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-19652 COCE (55). March 24, 2005. Eric M. Beller, Judge. Counsel: Cris Evan Boyar, for Plaintiff. Thomas Freehling, for Defendant.
ORDER STRIKING DEFENDANT’S EXPERTS
THIS CAUSE having come on Plaintiff’s Motion to Strike Defendant’s Expert Witnesses and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED as follows:
1. The Plaintiff filed a PIP suit for breach of contract on 10/8/03.
2. The Defendant filed an Answer and Affirmative defenses on 11/4/03.
3. The Plaintiff noticed the case ready for trial on 4/28/04.
4. The Plaintiff propounded expert witness Interrogatories on 4/28/04.
5. The Defendant did not respond to Plaintiff’s expert witness Interrogatories and the Plaintiff filed an ex parte motion to compel a response which was granted by the court on 8/4/04. Said Order gave the Defendant 10 days to respond.
6. The Defendant disregarded this first Order.
7. On 5/10/04 this Court scheduled this matter for trial to commence during the week of 7/19/04. The Defendant asked for a continuance which was granted by the Court.
8. The Plaintiff filed a Motion to Compel a response to the previous order and Motion for Sanctions which was granted by the Court. On 8/25/04 the Court, for a second time, Ordered the Defendant 15 days to answer the expert witness Interrogatories and sanctioned the Defendant $250.
9. The Defendant disregarded this second order and the Plaintiff filed yet another Motion to Strike the Defendant’s experts for noncompliance with Court Orders. On 9/28/04 the Court denied the motion and entered a third Order compelling the Defendant to answer the expert Interrogatories within 15 days from 9/28/04 and sanctioned the Defendant another $250.
10. The Defendant violated this third Court order by not responding to the expert Interrogatories within 15 days of 9/28/04 or paying the sanctions in time frame required by the Court.
11. The Defendant answered the expert witness Interrogatories on November 30, 2004 but the answers were incomplete as the Defendant objected to questions 10 though 17. The Plaintiff filed a Motion to Compel better answers.
12. On February 7, 2005 the Court heard argument on the Defendant’s objections and entered an order compelling the Defendant to provide better answers to expert witness Interrogatories numbered 10 through 17 within 30 days.
13. The Defendant did not comply with this direct and clear order.
14. On 2/15/05 the Court entered an Agreed Order denying Plaintiff’s Motion to strike Defendant’s experts and ordered the Defendant to pay additional sanctions. The Defendant has failed to pay the additional $200 in sanctions as ordered by the Court. This order specifically states “[I]f the Defendant fails to comply with this Court Order additional sanctions shall be imposed. No extensions of time will be responded.”
15. On 3/17/05, the Plaintiff filed another Motion to Strike the Defendant’s experts due to the Defendant’s failure to comply with the above Court orders. This is the motion which is the subject of today’s hearing.
16. The Plaintiff argues the Defendant’s expert should be stricken due to the Defendant’s failure to comply with the above Court orders. The Plaintiff further argues it is prejudiced as this matter is set for trial on April 25, 2005.
17. The Court finds the Defendant in wilful and wanton contempt of Court for violating the Court’s numerous orders and finds the Plaintiff has been prejudiced by the conduct of the Defendant. The Plaintiff was entitled to answers to the expert Interrogatories and would need this information to fully and fairly cross examine the Defendant’s experts at the time of trial, which is set to begin on 4/25/05.
18. As a result of the foregoing, the Court grants the Plaintiff’s Motion and strikes the Defendant’s experts with prejudice.
19. Defense counsel cannot specify what the problem with the expert is.
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