13 Fla. L. Weekly Supp. 819a
Insurance — Personal injury protection — Expert witnesses — Exclusion — Fraud on court — Expert witness for insurer is excluded and testimony is stricken where witness attempted to perpetrate fraud on court by submitting false information regarding number of IMEs performed, percentage of IMEs performed for defense, and amount of labor and expense that would be required to comply with discovery request for IMEs that expert had already been required to compile in another case involving same insurer, and insurer assisted expert in concealing information by representing to court that expert had never previously produced IMEs for discovery — Verdict is directed in favor of medical provider where, as result of striking testimony, there is insufficient evidence to support termination of benefits
LOUISE B. MASSIE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2002 SC 005418, Division V. May 12, 2006. Patricia A. Kinsey, Judge. Counsel: Arthur A. Shimek, Pensacola, for Plaintiff. James C. Rinaman, III and Vicki S. Graves, of James C. Rinaman, III & Associates, Jacksonville, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR MISTRIAL AND/OR DIRECTED VERDICT AND/OR TO STRIKE DEFENDANT’S EXPERT WITNESS TESTIMONY AND/OR FOR A NEW TRIAL
At a hearing on April 27, 2006, the court heard argument from counsel regarding the issues remaining under advisement from the jury trial which took place over the two day period beginning March 27, 2006. This is a PIP “IME cut-off” case involving chiropractic care subsequent to a March 16, 2002, motor vehicle collision. As a result, the pivotal issue for the finder of fact revolved around the testimony of Dr. Lancaster, the defendant’s expert witness who performed the compulsory medical examination. The parties stipulated tothe fact that the sole issue before the jury was whether the chiropractic care subsequent to the IME cutoff was medically necessary, reasonable and related to the motor vehicle collision.
This jury trial was plagued with error from the very beginning when the defendant violated the motion in limine by affirmatively insinuating to the jury in its opening statement that the plaintiff’s chiropractic care was over-priced as it was merely cold packs/heat packs and massage (or words to that effect) at the rate of $195.00 per a visit. The tone of voice was unmistakable. Counsel literally informed the jury that chiropractic treatment, both in general and as applied to this plaintiff, was nothing more than over–priced hand-holding.
This is important because the defendant suddenly raised the issue of the “amount charged” in the days immediately preceding jury selection. Because the “cost” issue was not raised as an affirmative defense, and was not raised as an issue or question for the jury to resolve in the joint pre-trial memorandum, the court ruled that any question about the amount charged was waived and could not be raised at trial. Regardless, the defense immediately raised the issue with the jury specifically addressing it inopening statement. Plaintiff approached and made a motion for mistrial which the court took under advisement.
As the case progressed, the defense effectively changed the issue from whether or not the plaintiff’s chiropractic care subsequent to the IME cutoff was medically necessary, reasonable and related to the motor vehicle collision by once again straying into another area which the court ruled wasinadmissible: that is, “we didn’t cut off all medical care — just chiropractic care.” The defense emphasized that they just wanted plaintiff to seek other medical treatment which they were willing to pay for, and subsequently did pay for, with a medical doctor. Whether or not plaintiff could seek other medical treatment was not the issue for the finder of fact. The only issue for the jury was whether or not the treatment she actually received was medically necessary, reasonable and related — not whether other treatment might be covered. There can be no question but that this type of testimony and argument could and would confuse the jury. The defense strayed into this forbidden area time and time again throughout the two day trial.
Finally, and most troubling to the court, it appears that there was an attempt to perpetrate a fraud on the court. Using the words of plaintiff’s counsel during argument at the hearing on whether or not to strike the testimony of the IME provider on April 27th, “. . .there exists in this case five separate and distinct incidents of false information that was produced by the Defendant, the Defendant’s agent (counsel) or the Defendant’s expert.” All five misrepresentations involved attempts to conceal the true relationship between the defendant and Dr. Lancaster — the IME chiropractic expert. The existence of, extent of, and nature of this relationship directly impacts the defendant’s reliance on Dr. Lancaster’s “expertise” and justification in cutting off plaintiff’s PIP benefits — the underlying question or issue of fact to be answered by the jury. Herein lies the very serious nature of the fraud perpetrated on the court. Because plaintiff’s counsel presented the five incidents so clearly and concisely, the court will quote from the transcript ofthis hearing. The documents he refers to are attached to this order.
“On January 24th of 2005, I subpoenaed Dr. Lancaster’s IME. The first document that you see there is the actual subpoena, the three-page document that was served on him. In response to that subpoena, Dr. Lancaster submitted an affidavit on February 24th, 2005, a month later, that is the second document that you see here. In that affidavit he stated a couple of thingsof relevance. Number one is that he had 442 IME’s for the time period stated. And remember, we’re talking January or February of 2005. That number is not relevant right now but becomes significant later.
The thing that — the false information that was submitted in theaffidavit for this first incident is when he attested in items 8 and — well, 7, 8, and 9, where he talks about the extreme difficulty and time consuming nature of locating these documents and how expensive it’s going to be to redact and to copy them. And, in fact, he wanted $6,298.00.
Later we learned with the emergence of the Crossley case that just one month before my subpoena, Dr. Lancaster had been ordered to produce those very records in Judge White’s court. That is the third document before you. And I highlighted December — I think it’s December 29th. It doesn’t really matter, but in December of 2004, a month before my subpoena. Therefore, at least at this point it appears that Dr. Lancaster’s statements regarding taking 12 hours to find the documents, 12 hours to redact and copy, and the amount of money is not true because he had just done the very same thing and produced those documents to Mr. Heath.
What I didn’t realize until actually today, I called Mr. Heath’s office because it’s one thing to have an order requiring you to compel, it’s another thing to see when, if, in fact, he actually complied with that order.
The next document is the actual invoice from Dr. Lancaster to Robert Heath dated January 12th of 2005, 12 days before my subpoena. It is on that day that he prepared all of the documents for which it was going to cause extreme hardship for him to prepare 12 days later for my subpoena that he, on that day, prepared and sent it to Mr. Heath at a cost of $1,328.00.
I think it’s evident from that first incident there that since 12 days before my subpoena Dr. Lancaster had, in fact, located, redacted and produced the very documents that I was subpoenaing him for and then the 12 hours — or the 24 hours of labor and five times the amount that it would cost is simply untrue, and I think it’s proven with that.
The second incident of false information occurred when I served interrogatories on the defendant on November 8th of 2005. The next document is the relevant page of the interrogatory, which is Number 5. Number 5 requested the percentage of work performed by their expert, which was Lancaster, percentage of work performed for the plaintiffsand the defendants. The answer provided by the defendant and signed under oath by the defendant, which is the next item there, isthat Dr. Lancaster provided 75% of his IME’s for defendant and 25% for the plaintiff. The court then ordered, as you know, all of the plaintiffs’ and defendants’ IME’s, that was part of the order which was part of the subsequent subpoena.
At trial, or the day before trial, Dr. Lancaster produced 939 reports, all of which were for the defendant or for insurance companies, none of which were for plaintiffs. He also testified at the trialthat all of thereports that he does are for defendants and nothing for plaintiffs. He expressed some confusion, but in cross-examination I think that it was pretty clear that he did 100% and that the answer, sworn answer to interrogatories was an indication that he was not as intimate with the insurance companies and this defendant as the defendant would have us and me and the court believe.
The third incident is Dr. Lancaster’s second affidavit. On February 7th, 2006, which you’ll see is the next document in that list of documents, there’s a subpoena duces tecum dated February 7th, 2006. And, again, I subpoenaed Lancaster’s IME reports. I didn’t get them the first time, but we didn’t seekan order to compel them either. One week later onFebruary 15th, 2006, Dr. Lancaster submitted an affidavit. And in there he stated that he prepared 523 IME’s from the period October 1st of 2003 to February 10th of 2006. That is a significant figure. He also stated that he wanted $10,000 for 36 hours of work that it was going to cause him to prepare for this. Again, the court ordered production of these IME’s the day before trial.
At trial it was established, and even Dr. Lancaster eventually had to agree, that during the same time period of which he testified under oath in the affidavit that there were 523, there were, in fact, 939 IME’s. Now, at trial, the defendant claimed that he was just simply mistaken. I find that to be incredible for a couple of reasons: Number one, it’s a vast difference. But Number two, if we look back to the February of 2005 affidavit, the affidavit almost a year before this one, he states that there were 442. At trial, and the transcript will bear out, that’s an accurate number. in his February of 2005 affidavit he stated an inaccurate number of IME’s. What the defendant’s expert was trying to conceal in the second affidavit is the last year of what appeared to be a very, very intimate relationship that he had with the defendant and the insuranceindustry.
If you look at his second affidavit where he — there’s an overlap of ayear. There’s actually a difference of a year or an overlap, I guess, of a year — not an overlap, a lack of an overlapof a year.
If you take the 523 that he said he did from October of 2003 to February of 2006, and subtract the 442, which is the accurate number from October of 2003 to February of 2005, you have 81. And that 81 represents his testimony that that’s the number of IME’s he did from February of 2005 to February of 2006. In reality, and Dr. Lancaster admitted on the stand that during that same time period of one year he, in fact, did 495. And that’s where we get to the fourth lie.
Now, the fourth situation here is that the defendant actually gets aggressively involved in helping this expert conceal information. As I stated before, I think the whole purpose of this concerted effort of complicity among the agent of the party, the expert of the party andthe party itself is to conceal the relationship that they have of complicity and concerted action.
Item Number 4 is where the defendant, again, gets aggressive. February 17th, 2006. The defendant, Progressive, files a motion for protective order in which it adopts and advocates Dr. Lancaster’s positions in hisaffidavit. And one thing we need to remember, this is the same defendant that was in the Crossley case. I know we have different attorneys, but it’s still the same party that’s advocating the positions of Dr. Lancaster.
At the March 2nd, 2006 hearing, the defense attorney acknowledged to both me and the court, in open court, that Dr. Lancaster had never produced IME’s before, in an attempt to justify the labor and expense required for him to produce all of this stufffor thefirst time. Again, at a hearing two weeks later, on March 16th of 2006 — there was a second hearing, this time it was on a reconsideration as well as a motion for sanctions — there the defendant again acknowledged before the court that it was her understanding that he had not produced it, but then alleged a mistake. And it the court will recall, she said, I asked him has he ever produced a report, did he have them, and he answered no. As opposed to a very clear question that I asked her, and that she acknowledged in the previous hearing, has he ever had to produce these before, and the answer unequivocally was, no. Now, she — at that point, she added the other question which made it somewhat ambiguous — . . .(discussionabout being more specific about “she” being “Ms. Graves” to make the record clear). . .the time, we were not aware of the other four incidences. So at the time — at least before the Crossley case emerged, I thinkit was fairto take Ms. Graves’ word that it may be mistaken. Once the Crossley case came out, I think it cast a lot of doubt on that. But even if it was the mistaken effort or mistaken statements of the defense counsel, we have to remember this is a position that the counsel is representing Progressive, the very same Progressive that was involved in the Crossley case in which Progressive knew that those documents had been presented, you know, before. So for counsel to make that affirmative statement, an affirmative unambiguous statement, on behalf of a party when that same party was involved in another case that is clearly inconsistent withthat statement is at least a false information that should be imputed to the defendant itself.
That leads us now to Number 5. Number 5 is at trial itself. And Dr. Lancaster testified that he did 200-300 IME’s a year. It was established that he did more like 500 a year. He acknowledged his “mistake.”
The mistakes keep adding up, your honor. The truth of the matter is that the defendant never dreamed that I would be able to go through 939 IME’s on the weekend before trial. And it was a very, very arduous process to do that.
Your honor, we have five lies. We have five frauds on the court, and those are the things that they were caught on, and that we have conclusive — clear, convincing and conclusive evidence that the factual statements that were made, four or five of which were under oath, the fifth one was an officer of the court making statements in open court, we have clear evidence that those were false. And we also have a purpose, a concerted effort for a common cause to conceal the nature of the relationship which would be damaging if exposed.” (T. 4-13)
Watching this apparent fraud unfolding during the final days as the trial approached was unsettling. To have it confirmed during the trial bythe sworn trial testimony of Dr. Lancaster through the extraordinary efforts of plaintiff’s counsel was unconscionable. The disturbing natureof this schemeto defraudis not diminished by the fact that, at least to some extent, plaintiff’s counsel was ableto expose it to the jury. The full nature of the attempt to fraudulently conceal and/or fabricate evidence was not apparent until just hours before, during and after the jury trial and therefore this scheme to defraud, clearly calculated to interfere with the judicial system’s ability to adjudicate an issue on its merits, requires the court to take action commensurate with the violations.
It is the insidious nature of this type of behavior that warrants a sanction. It is the abuse of and attempt to subvert the judicial process in and of itself that warrants a sanction. The calculated attempt to mislead the jury as to the true relationship between the IME “cutoff” report, Dr. Lancaster and the defendant must be addressed. While Mr. Rinaman, co-counsel for defendant, may be “shocked at the tenor of the allegations” at the April 27th hearing, the court can only respond that plaintiff’s counsel presented the facts and his argument factually, with professionalism and objectivity that should be acknowledged and commended. These allegations could have been presented with great drama and “colorful” language, but plaintiff’s counsel chose to proceed with a factual presentation in an orderly, precise and objective manner. However, this time, in this case, the plaintiff has asked the court to “draw a line inthe sand” and address what has become a chronic problem in PIP litigation.
Defendants such as the one in this case face important business decisions every day. One very important decision is their selection of a member of the medical community whom they askto meet with their insured and determine if the medical treatment they are receiving is medically necessary, reasonable, and related to the motor vehicle collision coveredbythe insurance policy they issued. The integrity, professionalism and standards of the medical expert they select shouldbeabove reproach. Yet here, Dr. Lancaster, under oath, both before and during the jury trial, misrepresented through fraudulent concealment and fabrication, in a cold and calculated manner, the number and nature of his relationships with litigants in previous cases, the extent of his financial relationship with the “insurance industry” and would not even provide truthful, accurate answers to pre-trial interrogatories or requests to produce during the trial/discovery process. His trial testimony could bestbe described as an attempt to “block the truth” that fortunately had otherwise been uncovered through the diligent efforts of plaintiff’s counsel. Each and every action wasa concerted effort to conceal the potentially damaging relationship with and financial dependence he mighthave withthe defendant in particular and the insurance industry in general.
A party should not be penalized for the actions of one of their witnesses except under extraordinary circumstances. However, in a PIP “IME cut-off” case, the IME expert is not just a mere “witness.” The compulsory medical examination is an integral part of an insurance policy. The selection of the medical provider who examines their insured to determine whether or not the treating physician has properly evaluated his own patient and is effectively treating the insured is not just a mere “witness” for whichthe insurance company bears no responsibility. They, and they alone, make a choice. They affirmatively choose their “witness” and then use his “expertise” to dictate their insureds’ present and future medical treatment. To think otherwise is to ignore reality.
The exclusion of a witness’s testimony is a permissible sanction under Florida Rules of Civil Procedure 1.380. Courts should resort tosuch asevere sanction only under the most egregious circumstances. The credibility and sworn testimony of the IME provider inaPIP IME cutoff case is not a collateral issue. It is the underlying basis for the defendant’s case. The pattern of misconduct in this casepresents the court no option but to protect the integrity of the judicial process and send a strong message that fraudulent concealment and/or fraudulent fabrication will not be tolerated. There comes a time when the court is forced to “draw a line in the sand.” It has become commonplace — just part of every PIP case — to have multiple hearings over the production of information from the IMEprovider. The responsibility of IME providers tomaintain and provide information and records is clear and unambiguous in the PIP statute and case law. There is no surpriseor question aboutwhat information will be required from them during PIP litigation. Either the IME providers decide to takethe lawseriously or suffer the consequences — and it has become abundantly clear to the court that it is time to enforce those consequences.
The sanction here should be such that Dr. Lancaster will make sure that he maintains proper records and provides accurate and truthful information about his IME practice if he wishes to accept employment doing compulsory medical examinations. The sanction should be such that the defendant will make sure that only those physicians who accept responsibility for maintaining andproviding the statutorily required records, and providing timely, accurate and truthful information about their medical practice(s) will be permitted to perform compulsory examinations. The sanction should be such that attorneys are on notice to communicate clearly and unambiguously with their witnesses so that each and every “witness” understands their responsibilities during litigation and understands that there are consequences for each and every decision made.
How could a finder of fact reach a decision on the merits in a case so fraught with fraud, error and misrepresentation? Having considered the totality of the circumstances, the clear and convincing evidence of misconduct by the IME expert, the compelling evidence of intentional fraud upon the court in the most pertinent of material issues before the finder of fact, it is therefore
ORDERED AND ADJUDGED that Dr. Lancaster is excluded as a witness and his testimony is stricken from the record.
FURTHER ORDERED that as a result of Dr. Lancaster’s testimony beingstricken from the record there is insufficient evidence to support the termination of plaintiff’s chiropractic PIP benefits and therefore plaintiff’s Motion for Directed Verdict is granted. The court therefore does not reach plaintiff’s Motion for Mistrial and/or plaintiff’s Motion for a New Trial as they are now moot.
FURTHER ORDERED that Plaintiff is directed to prepare a proposed Final Judgment within twenty days of the date of this order and provide it to the defendant who will within twenty days providewritten comments and/or objections to the court.
FURTHER ORDERED that the court reserves jurisdiction to address the issue of attorney’s fees, costs and entry of the Final Judgment as well as any other matters necessary to be fair andjust inthis matter.
