14 Fla. L. Weekly Supp. 819a
Insurance — Personal injury protection — Discovery — Appeals — On appeal of summary judgment order entered against insurer after striking of insurer’s expert witness as sanction for noncompliance with discovery orders, appellate court will not determine whether information sought in interrogatories was proper or evaluate the sufficiency of insurer’s answers where those issues would have been suitable for certiorari review of trial court’s orders compelling better answers — No abuse of discretion in striking expert witness where insurer was compelled four times by court order to provide answers to interrogatory regarding expert’s testimony in other cases, was subjected to monetary sanctions for noncompliance twice and has yet to provide ordered response
UNITED AUTOMOBILE INSURANCE CO., a Florida Corporation, Appellant, vs. SOUTH FLORIDA PAIN & REHABILITATION, P.A., (a/a/o Sasha Reid), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 06-016815 (02), 06-020222 (consolidated), 07-004978 (consolidated). May 14, 2007. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Coral Gables. Joseph R. Dawson, Law Offices of Dawson & Finkelstein, LLP, Fort Lauderdale.
ORDER
(VICTOR TOBIN, J.) THIS CAUSE is before the Court upon Appellant, UNITED AUTOMOBILE INSURANCE COMPANY’s (“United”) appeal of the county court’s October 16, 2006 Final Summary Judgment, November 30, 2006 Final Judgment for Attorney’s Fees and Costs, and February 14, 2007 Final Judgment for Additional Costs and Attorney’s Fees. The Court having considered same, having reviewed the briefs submitted by the parties and being otherwise duly advised in premises, finds and decides as follows:
United presents two arguments in this appeal. United first argues the trial court erred in striking their medical expert, whose testimony, according to United, presented a genuine issue of material fact; therefore, United asserts reversible error by the trial court in entering Final Summary Judgment in favor of Appellee, SOUTH FLORIDA PAIN & REHABILITATION, P.A. (“South Florida Pain”). United argues further that reversal of the judgment also requires reversal of the statutory fee award. This Court dispenses with oral argument. See Fla. R. App. P. 9.320.
The following recitation of facts illustrates that the trial court entered four (4) orders compelling United to answer and/or provide better answer to interrogatories, and imposed two (2) separate monetary sanctions upon United, over the course of one year. South Florida Pain served interrogatories upon United on July 6, 2005. The court entered an order on August 17, 2005, granting South Florida Pain’s Ex Parte Motion to Compel, requiring United to provide answers within ten (10) days of the order. The trial court granted a Second Motion to Compel Answers to Interrogatories on September 21, 2005, and monetarily sanctioned United for untimely filing “inadequate answers” on September 15, 2005. On March 9, 2006, an order granting South Florida Pain’s Second Motion to Compel Better Answers to Interrogatories numbered 3 (b, d), 4 and 5, within twenty (20) days was entered. At the August 25, 2006 hearing on South Florida Pain’s Motion to Strike Defense Expert, the court deferred its ruling on the motion to strike, monetarily sanctioned United, and ordered United to provide a complete response to Interrogatory 3(D)1 within ten (10) days or their expert would be stricken. The trial court granted South Florida Pain’s Motion to Strike Defense Expert on September 12, 2006. On October 11, 2006, South Florida Pain’s Motion for Summary Judgment was granted, and Final Summary Judgment was entered October 16, 2006.
United argues that summary judgment could not have been entered, but for the erroneous striking of United’s medical expert, and cites numerous cases2 where certiorari relief was properly sought to review an order compelling discovery. A discovery order is a non-final and non-appealable order. Gleicher v. Claims Verification, Inc., 908 So. 2d 560 (Fla. 4th DCA 2005); citing Broward County v. G.B.V. Int’l Ltd., 787 So.2d 838, 843 (Fla. 2001); Cowan v. Fla. Dental Ass’n, Inc., 463 So.2d 285, 286 (Fla. 4th DCA 1984). The appellant did not petition this Court for a writ of certiorari as to the September 12, 2006 non-final order striking United’s expert; however, United did timely appeal the October 11, 2006 Final Summary Judgment. The instant appeal cannot be treated as a writ of certiorari, as the Gleicher court did, because as a writ of certiorari, it is untimely. This Court will not determine whether the information sought in South Florida Pain’s interrogatories was proper, nor will this Court evaluate the sufficiency of United’s answers, as such would have been suitable for certiorari review of any one of the trial court’s orders compelling United to provide better answers to interrogatories.
As a direct result of United’s continuous noncompliance with the lower court’s orders compelling better answers and ultimately upon United’s failure to provide a complete response to South Florida Pain’s interrogatory 3(D) within ten (10) days of the court’s August 25, 2006 order, the trial court sanctioned United by striking their expert witness.3 United argues it cannot provide the information concerning the expert witness’ testimony in cases other than those on behalf of United, and further argues that the trial court abused its discretion4 in striking their expert, citing to Cooper v. Lewis, 719 So.2d 944 (Fla. 5th DCA 1998), a case where an expert witness was struck without either a pending motion for sanctions or a motion to compel. In the case sub judice the lower court issued four (4) separate orders compelling United to provide answers and/or better answers to South Florida Pain’s interrogatories. In Cooper, the trial court’s error was in striking the medical expert in the absence of any willful contempt or violation of a court order; however, the trial court in the instant case found a willful violation of numerous court orders.
Furthermore, in Allstate Ins. Co. v. Mazzorana, 731 So.2d 38 (Fla. 4th DCA 1999), although the court found that the dental expert would indeed be required under Elkins v. Syken, 672 So.2d 517 (Fla. 1996)5 to identify each case the expert testified either by deposition or trial in the preceding three years, the Mazzorana court determined that without a prior finding that the expert violated a discovery court order, the court abused its discretion in excluding the expert witness. This Court finds no abuse of discretion in striking United’s expert witness, Dr. Neil H. Fleischer, where United was compelled to provide answers to interrogatories four (4) times by court order, monetarily sanctioned twice for noncompliance, and has yet to provide the court ordered response to South Florida Pain’s interrogatories.
In reviewing the Final Summary Judgment, the standard of review is de novo. McKenna v. Camino Real Vill. Ass’n, Inc., 877 So.2d 900 (Fla. 4th DCA 2004). The court reviews the final summary judgment to determine if any genuine issues of material fact remain and to discern whether the moving party is entitled to judgment as a matter of law. Martin v. Florida Power and Light Co., 909 So.2d 555 (Fla. 4th DCA 2005). As to South Florida Pain’s Motion for Summary Judgment on Issue of Reasonable Related and Necessity of Treatment, United argues that genuine issues of material fact were demonstrated through the affidavit of stricken defense expert, Dr. Neil H. Fleischer. South Florida Pain further points out that notwithstanding the Order striking defense expert, Dr. Neil H. Fleischer, the affidavit of that stricken expert was conclusory, without legal predicate, and was submitted without supporting documentation as per Florida Rule of Civil Procedure 1.510(e); however, this argument is moot in light of this Court’s finding that the trial court did not abuse its discretion in striking the expert witness.
South Florida Pain’s Motion for Summary Judgment was sufficiently supported by the affidavit of Dr. Jennifer Walder, deposition testimony, and responses to United’s Request for Admissions, thus establishing that the medical charges were reasonable, related, and necessary. The trial court did not err in granting South Florida Pain’s Motion for Summary Judgment, where the only contradictory evidence proffered by United was that of a stricken medical expert. Additionally, the Orders granting attorney’s fees and costs and additional fees and costs to South Florida Pain are proper.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the October 16, 2006 Order granting Final Summary Judgment, the November 30, 2006 Final Judgment for Attorney’s Fees and Costs, and the February 14, 2007 Final Judgment for Additional Costs and Attorney’s Fees are AFFIRMED.
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1Interrogatory 3(D) states:
3. Do you intend to call any medical expert witness at the time of trial of this cause?
. . .
D. The identity of other cases, within the last three (3) years, in which the expert has testified at trial or in deposition
2Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999) (Reviewing fourth DCA denial of certiorari in Allstate Insurance Co. v. Boecher, 705 So.2d 106 (Fla. 4th DCA 1998); Allstate Insurance Co. v. Hodges, 855 So.2d 636 (Fla. 2nd DCA 2003) (certioraridenied); Progressive Express Insurance Co. v. Quality Medical Group, Inc., a/a/o Zeida Calderon, 12 Fla. L. Weekly Supp. 1020a (Fla. 1lth Cir. Ct., August 2, 2005) (Finds jurisdiction pursuant to Fla. R. App. P. 9.030(c)(2), certiorari jurisdiction); Allstate Insurance Co. v. Pinder, 746 So.2d 1255 (Fla. 5th DCA 1999) (certiorari granted); Orkin Exterminating Company, Inc. v. Knollwood Properties, Ltd., 710 So.2d 697 (Fla. 5th DCA 1998)(certiorari denied); Syken v. Elkin, 644 So.2d 539 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla. 1996).
3United’s expert was struck by Order dated September 12, 2006.
4Applicable standard of review as to sanctions is abuse of discretion. See Kirkland’s Stores, Inc. v. Felicetty, 931 So. 2d 1013 (Fla. 4th DCA 2006).
5Elkins v. Syken is the leading case defining the permissible scope of discovery obtainable for the purpose of demonstrating medical expert witness bias for impeachment.
