16 Fla. L. Weekly Supp. 976b
Online Reference: FLWSUPP 1610DUNC
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer has violated four discovery orders, been monetarily sanctioned and remains in contumacious disregard of court’s order to provide discovery regarding expert witness, witness is stricken
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Sadonia Duncan) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-10065 COCE (50). July 27, 2009. Peter B. Skolnik, Judge. Counsel: Emilio Roland Stillo and Nathan Avrunin, South Florida Trial Lawyers LLC, Sunrise, for Plaintiff. Terri Kim, United Automobile Insurance Company, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONTO STRIKE DR. PETER J. MILLHEISER MD FOR VIOLATIONS OF COURT ORDERS OF APRIL 9, 2008, APRIL 17, 2008, OCTOBER 29, 2008and FEBRUARY 9, 2009
THIS CAUSE came before the Court July 27, 2009, on Plaintiff’s Motion to Strike Dr. Peter J. Millheiser 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 Sadonia Duncan from September 26, 2002 to January 7, 2003 for injuries suffered in automobile accident on or about September 17, 2002. Medical treatment rendered by the Plaintiff totaled $5,674.00 dollars.
The Defendant did not pay any of the medical bills within 30 days of receipt of the bills. On December 19, 2003, Dr. Peter J. Millheiser MD reviewed the patient’s medical records. No physical exam was conducted on behalf of the insurer. During litigation, the Plaintiff sought discovery from the Defendant regarding Dr. Millheiser MD.
On April 9, 2008, the Court entered an Order requiring the Defendant to respond to Peer Review Interrogatories within 30 days. The Defendant did not timely comply and violated the Court’s Order.
On April 17, 2008, the Court entered an Order requiring the Defendant to furnish verified better responses to Expert Witness Interrogatories. The Defendant did not timely comply and violated the Court’s Order.
On August 25, 2008, the Court sanctioned the Defendant $350.00 dollars for violation of Court Order and ordered the Defendant to provide better responses.
On October 29, 2008, the Court ordered the Defendant to provide responses to Plaintiff’s Supplemental Request for Production regarding Dr. Millheiser MD within 20 days. The Defendant did not respond or move for relief from the Court Order. The Defendant contumaciously violated the Court’s Order of October 29, 2008.
On December 12, 2008, the Plaintiff filed a Motion to Strike Dr. Peter J. Millheiser MD for violations of Court Orders of April 9, 2008, April 17, 2008 and October 29, 2008.
On February 9, 2009, Plaintiff’s Motion to Strike Dr. Peter J. Millheiser MD for violations of the April 9, 2008, April 17, 2008, and October 29, 2008 Orders was heard by the Court. As of the date of the hearing, the Defendant had neither complied nor moved for relief from the Order and remained in contumacious disregard of same.
On February 9, 2009, the Court denied without prejudice Plaintiff’s Motion to Strike Dr. Peter J. Millheiser MD. The Court ordered the Defendant to comply with the October 29, 2008 within 30 days. Moreover, the Court cautioned the Defendant that the Court would consider the striking of Defendant’s Expert if the Defendant failed to comply.
The Defendant did not comply with the Court’s February 9, 2009 Order which enforced the Court’s October 29, 2008 Order. The Defendant has neither complied nor moved for relief from the February 9, 2009 and as of the hearing on July 27, 2009, remained in contumacious, willful and reckless disregard of same.
Conclusions of Law. In considering Defendant’s repeated violations of Court Orders, the Court considers the factors set out in Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994) in determining whether to enter a default judgment as a sanction. A-1 Mobile MRI, Inc. (Osvaldo Placeres) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 987a (Broward Cty. Ct. 2005, Judge Robert W. Lee); Marlon Ellis v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp.498a (Broward Cty. Ct. Judge Robert W. Lee). The Florida Supreme Court has, in other cases, offered additional matters for a trial court to consider. When a sanction is entered as the result of failure to comply with a court order, the Supreme Court has held that “[a] deliberate and contumacious regard of the court’s authority will justify application of this severest of sanctions [dismissal or default. . .], as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” A-1 Mobile MR1, Inc. (Osvaldo Placeres) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 987a (Broward Cty. Ct. 2005, Judge Robert W. Lee); Marlon Ellis v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 498a (Broward Cty. Ct. 2005, Judge Robert W. Lee) citing Mercer v. Raine, 443 So.2d 944 (Fla. 1983) (emphasis added) and Smith v. City of Panama City, 951 So.2d 959, 959-60 (Fla. 1st DCA 2007). The Court has considered the above factors in the instant case. The Defendant’s conduct may warrant the striking of pleadings however the Plaintiff is seeking the lesser sanction of the striking of Defendant’s Expert.
In determining whether to strike Defendant’s Expert, the Court has also considered the Honorable Victor Tobin’s decision in United Automobile Insurance Company v. South Florida Pain & Rehabilitation PA (Sasha Reid), 14 Fla. L. Weekly Supp. 819a (Broward Circuit Ct. 2008) affirming the striking of an Expert Witness. In South Florida Pain & Rehabilitation PA (Sasha Reid), United Automobile Insurance Company violated four (4) separate Court Orders and was monetarily sanctioned as well. The Court found no abuse of discretion in striking the insurer’s Expert Witness where United was compelled to provide answers to interrogatories four (4) times by court order, monetarily sanctioned twice for noncompliance, and had yet to provide responses to the subject discovery as of the date of the hearing. In the instant case, the Defendant has violated four (4) Court Orders, been monetarily sanctioned and remains in contumacious disregard of Court Order as of today’s hearing.
ORDERED and ADJUDGED that Dr. Peter J. Millheiser MD is hereby struck as an Expert Witness for all purposes in this action.
