15 Fla. L. Weekly Supp. 744a
Insurance — Personal injury protection — Witnesses — Expert — Where expert witness who performed medical records review testified in deposition that he does not maintain record of other cases in which he has testified at trial or by deposition and would not be able to supply that information to medical provider, motion to strike witness is granted
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Cheyane Duncan) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-10066 COCE (53). April 21, 2008. Robert W. Lee, Judge. Counsel: Emilio R. Stillo, South Florida Trial Lawyers LLC, Sunrise. Ilona Katrus, Office of the General Counsel of United Automobile Insurance Company.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DR. RICHARD GLATZER MD
THIS CAUSE came before the Court April 9, 2008, on Plaintiff’s Motion to Strike Dr. Richard Glatzer MD, and the Court’s having reviewed the entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background. The Plaintiff treated Cheyane Duncan from September 26, 2002 to January 7, 2003 for injuries suffered in an automobile accident on September 17, 2002. Medical treatment rendered by the Plaintiff totaled $6,094.00 dollars.
The Defendant did not pay any of the medical bills within 30 days of receipt of the bills. On October 9, 2004 Dr. Richard Glatzer MD reviewed the patient’s medical records. On May 30, 2006, Plaintiff submitted a pre-suit demand letter. The Defendant did not respond. On July 11, 2006, Plaintiff filed suit. On August 7, 2006, Defendant filed its Answer & Affirmative Defenses. The basis of Defendant’s first affirmative defense is that the treatment is not reasonable, related or necessary based on the opinion of Dr. Richard Glatzer MD.
On October 20, 2006, the Plaintiff propounded Expert Witness Interrogatories onto the Defendant. Interrogatory # 9 asked the Defendant the identity of cases in the last three (3) years in which Defendant’s expert has testified at trial or at deposition. The Defendant did not respond until May 9, 2007 objecting as to providing the list for insurers other than the Defendant.
On July 17, 2007, the deposition of Dr. Glatzer was taken. A copy of the deposition is attached as an exhibit to Plaintiff’s Motion to Strike Dr. Glatzer. Dr. Glatzer testified as follows:
Q: If the Court ordered you to provide the names of trials and who hired you in the past three years, are you able to do that? (page 65, line 21).
A: No.
Q: Why not?
A: Because I don’t keep those records. . . .I don’t keep any records or files that I go to court or depositions on. It serves me no purpose.
Q: How many depositions and trials would you estimate that you testified at in the past three years? (page 60, line 10).
A: I’d be guessing. . . . I don’t know the answer, so I am only guessing.
Q: And there would be no way to determine the answer because you don’t keep that information?
A: I don’t keep it, it serves no medical purpose. I run a medical practice, not a legal practice. I have no purposes whatsoever with keeping that mundane information for my medical practice.
Conclusions of Law. Florida Rule of Civil Procedure 1.280 (b)(4)(A)(iii)3 provides during discovery a party may obtain from a person expected to be called as an expert witness at trial the identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial. In Orkin Exterminating Company, Inc., v. Knollwood Properties, Ltd., 710 So. 2d 687 (Fla. 5th DCA 1998), the issue presented was whether the trial court was correct in requiring an expert to provide a list identifying cases in which the expert has testified for the past three years despite the fact that no list identifying such cases existed. In affirming the trial court, and after noting that the record reflected that the expert did not maintain these records, the appellate court stated that “[t]he expert must supply this information if requested and if the expert wishes to testify in a Florida court.” The holding in Orkin is consistent with Syken v. Elkins, 644 So.2d 539 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla.1996).
The Defendant contends that Plaintiff’s motion is premature as there has been no order compelling the list. The Court rejects this argument as the Court will not require the Plaintiff to perform a futile act based on the clear unequivocal statements of Dr. Glatzer under oath. State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006). The Court also notes Plaintiff’s motion was served February 22, 2008. The Court finds that it was incumbent upon the Defendant to demonstrate to the Court at the hearing of April 9, 2008 that Dr. Glatzer could comply in direct contravention of his clear statements under oath that he could not.
ORDERED and ADJUDGED that Dr. Richard Glatzer is hereby struck as an Expert Witness for all purposes in this action.
