12 Fla. L. Weekly Supp. 583b
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insured has been trying unsuccessfully for two years to obtain information on amount of money insurer has paid to medical providers who conducted independent medical evaluation and peer review, and insurer’s conduct has come perilously close to but has not quite reached level of egregious conduct necessary to invoke ultimate sanction of striking insurer’s pleadings, striking insurer’s experts and imposition of monetary sanctions are appropriate
REGINA JORDAN, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-3252 COCE 53. March 23, 2005. Robert W. Lee, Judge. Counsel: Cris E. Boyar, Margate, for Plaintiff. Rashad H. El-Amin, Coral Gables, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR CONTEMPT AND ORDER TO SHOW CAUSE
THIS CAUSE came before the Court on March 21, 2005 for hearing on Plaintiff’s Motion for Contempt and Order to Show Cause, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: On April 2, 2003, the Defendant filed its Answer and Affirmative Defenses, asserting that the medical expenses sought were not reasonable, necessary, or related to the automobile accident at issue. On April 28, 2003, the Plaintiff filed her Request for Production seeking, among other information, “[a]ny and all records reflecting payment to the medical providers who conducted independent medical examinations or peer reviews on the Plaintiff for the last three (3) years.” On May 9, 2003, the Defendant filed its Motion for Enlargement of Time to Respond to Plaintiff’s Discovery Request. On June 12, 2003, the Defendant filed its response to this request, stating that it “does not directly pay the IME doctors, furthermore no peer review has been conducted at this time, therefore Defendant states none.”
Thereafter, the Plaintiff attempted to take the depositions of the “underwriting manager with most knowledge concerning the policy of insurance issued to Regina Jordan,” and the “medical claims adjuster with most knowledge of this particular claim.”
On July 27, 2004, the Defendant filed its Notice of Filing Peer Review of Dr. Peter Sciarretta, and Notice of Filing Peer Review of Dr. Marvin Merrit. On July 30, 2004, the Plaintiff served its Supplemental Request for Production. In it, she sought “[c]opies of any and all documents which would reflect the amount of money the Defendant paid to Defendant’s expert, Peter Milheiser [and . . .] Dr. Marvin Merrit for the last three years.” On August 10, 2004, the Defendant filed its Response. As to Peter Milheiser, the response was “[n]ot [a]pplicable.” As to Dr. Merrit, the response was “[n]o such documents exist at this time.”
On July 30, the Plaintiff also propounded interrogatories concerning the same information. The Defendant’s response was that these requests were “[n]ot [a]pplicable,” without any further elaboration or explanation.
On August 23, the Plaintiff filed her Motion to Compel and Motion for Sanctions. In the Motion, the Plaintiff argued that “[c]learly, the Defendant would have some documents in its possession reflecting the amount of money it paid to these providers in the last 3 years.” As for the response to interrogatories, the Plaintiff argued that “[t]his response is clearly a fraud on the Court. Dr. Milheiser routinely testifies in Court for the Defendant[,] and there must be a record of the amount paid to him.” The Plaintiff further argued that “[c]learly, the Plaintiff is entitled to know how much the Defendant has paid these doctors and the Defendant’s responses are sanctionable.”
On August 26, 2004, the Plaintiff issued its Subpoenas Duces Tecum Without Deposition, seeking the same information from Southern Diagnostics Associates; Prime Peer Reviews & Independent Medical Examinations; JBA Medical, Inc.; and Florida Medical Specialists. Defendant filed no objection to these depositions, but sought copies of the documents produced.
On September 10, 2004, the Plaintiff served its Subpoena for Deposition Duces Tecum to Jorge Gonzalez, Accounting Manager for the Defendant, seeking the same information. The deposition was set for October 13, 2004.
On September 21, 2004, the Defendant served its Unverified Amended Answers to Supplemental Interrogatories. These responses stated that an accounting log was being provided for both doctors, as well as stating what Dr. Milheiser was paid in 2001, 2003, and 2004, and how many times Dr. Milheiser testified in the same years. The same day, the Defendant served its Motion for Protective Order, seeking to quash the subpoena to Jorge Gonzalez, claiming that he “has no personal knowledge of the claim.”
On February 10, 2005, the Court entered its Order Denying the Motion for Protective Order, but limiting the deposition to the scope set forth in the interrogatories, and setting a 20-day deadline for the deposition. The deposition was reset for March 1, 2005.
On March 1, 2005, Jorge Gonzalez showed up for deposition more than half an hour late. He failed to bring the required documents with him. He further acknowledged that he did not know why he was being deposed. The Plaintiff as a result has filed her Motion for Contempt and Order to Show Cause, seeking “attorney’s fees, costs, the striking of the Defendant’s pleadings, and the striking of the Defendant’s experts.”
Conclusions of Law: In the instant county court case, the Plaintiff has been trying for almost two years to obtain the requested information through various means. At the hearing, the Defendant was unable to offer any explanation for the failure of the witness to bring the required information. The Plaintiff seeks not only attorney’s fees and costs as a sanction, but also “the striking of the Defendant’s pleadings, and the striking of the Defendant’s experts.” While the Court views the Defendant’s conduct as coming perilously close to the ultimate sanction of striking pleadings, the Court does not believe it has quite reached the level of egregious conduct necessary to invoke the ultimate sanction. Nevertheless, the striking of expert witnesses is appropriate when the Defendant disobeys or disregards a court order. See Premark Int’l, Inc. v. Pierson, 823 So.2d 859, 860-61 (Fla. 5th DCA 2002). Here, the Defendant, without excuse, disregarded this Court’s Order of February 10, 2005. Against the backdrop of the Plaintiff’s two-year struggle to get the requested information in a county court case, the Court finds that the striking of the expert witnesses and imposition of monetary sanctions are appropriate. Accordingly, it is hereby
ORDERED AND ADJUDGED that Dr. Peter Milheiser and Dr. Marvin Merrit are hereby STRICKEN as defense witnesses in this case, and monetary sanctions are hereby awarded in the amount of $750.00, which must be paid by Defendant to Plaintiff’s counsel no later than 20 days from the date of this Order. The Defendant’s timely compliance with this Court’s Order herein is a condition precedent to its continued defense of this action.
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