18 Fla. L. Weekly Supp. 627a
Online Reference: FLWSUPP 1807DUNC Insurance — Discovery — Expert witnesses — Where insurer’s expert has unequivocally stated that he will not comply with discovery requirements of rule 1.280(b)(4), court denies motion to reconsider order striking witness as not qualified to testify and order witness to do what he has already said he cannot or will not do — Where insurer concedes that it would not be able to substantially impeach medical provider’s expert without testimony of its stricken expert, summary judgment is entered in favor of provider
NDNC NEUROLOGICAL TREATMENT CENTERS, INC. (a/a/o Cheyane Duncan), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-10066 COCE 53. April 20, 2011. Robert W. Lee, Judge.
ORDER ON PRETRIAL CONFERENCE DENYING DEFENDANT’S MOTION FOR REHEARING ANDGRANTING PLAINTIFF’S MOTION FORRECONSIDERATION, and ORDER GRANTINGPLAINTIFF’S RENEWED MOTION FORSUMMARY JUDGMENT
THIS CAUSE having come before the Court on April 7, 2011 for pretrial conference, at which time the parties addressed the Defendant’s Motion for Rehearing on Plaintiff’s Motion to Strike Dr. Blumberg, etc., and the Court having reviewed the motion and entire Court file; heard argument; reviewed the relevant legal authorities; and having been sufficiently advised in the premises, the Court finds as follows:
On April 1, 2011, this Court entered its order striking Defendant’s expert, Dr. Lawrence Blumberg, due to the expert’s unequivocal and clear statement that he could not and would not comply with the requirements of Rule 1.280(b)(4). This is not an issue of a sanction, but rather whether the expert is qualified to testify in the proceeding. See Orkin Exterminating Co., Inc. v. Knollwood Properties Ltd., 710 So.2d 697, 698 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1090a] in which the appellate court stated:
whether the identity of the cases in which the expert has testified is an exception to the general exemption from discovery of financial or business records, or whether the inability to supply the information without reference to these documents qualifies as an unusual or compelling circumstance, does not matter. The expert must supply this information if requested and if the expert wishes to testify in a Florida court (emphasis added).
This decision was later reaffirmed in Allstate Ins. Co. v. Pinder, 746 So.2d 1255, 1257 (Fla. 5th DCA 1999) [25 Fla. L. Weekly D136a], in which the appellate court reiterated,
An expert must supply the information required by Florida Rule of Civil Procedure 1.280(b)(4)A(iii), and cannot avoid this duty denying he has a document that contains the information or by asserting that the data could only be found in non-discoverable financial or business records. We simply held that if the expert is to testify, he must disclose what the rule requires, including the identity of the cases in which the expert has testified (emphasis added).
Importantly, this case is in a trial posture, with discovery cutoff long past. The case has been to mediation, arbitration, and pretrial conference. In the instant case, taking Dr. Blumberg’s conduct in this case and his entire deposition testimony as a whole, the Court concludes that Dr. Blumberg will not comply with these requirements of Florida law, and therefore he cannot testify in this proceeding. The Defendant would have the Court do a futile act, i.e., order Dr. Blumberg to do something that he has already said he cannot or will not do.
At the March 11, 2011 hearing on the Plaintiff’s Renewed Motion for Summary Judgment, this Court denied the motion in part “without prejudice to the Court’s later ruling on Plaintiff’s 2nd Motion to Strike Dr. Blumberg.” At the April 1, 2011 hearing on the Second Motion to Strike, the Defendant proffered that it might be able to substantially impeach Plaintiff’s expert at trial without the presence of Dr. Blumberg; therefore, the Court declined at that time to reconsider its summary judgment ruling. At the April 7, 2011 pretrial conference, the Defendant conceded it would not be able to substantially impeach Plaintiff’s expert without the testimony of Dr. Blumberg. Based on this concession, and the Court’s declining to reconsider its ruling on Dr. Blumberg, the Court agrees with Plaintiff that it is appropriate to reconsider its March 11 summary judgment ruling and grant Plaintiff’s Motion. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Rehearing of the Court’s Order of April 1, 2011 is DENIED; it is further
ORDERED AND ADJUDGED that Plaintiff’s Motion for Reconsideration of the Court’s Order of March 11, 2011 is hereby GRANTED. Summary Judgment is hereby entered in favor of Plaintiff. The Plaintiff shall submit a proposed judgment conforming to the terms of this Order.
