21 Fla. L. Weekly Supp. 581b
Online Reference: FLWSUPP 2106GOMEInsurance — Personal injury protection — Expert witnesses — Where insurer disclosed on day before pre-trial conference that it was substituting new expert for previously disclosed expert, and allowing substitution would result in unfair prejudice to medical provider that is incurable and would result in fourth continuance attributable to insurer, motion to strike new expert is granted
ADVANCED X-RAY ANALYSIS, INC., a/a/o ANTONIO GOMES, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 2009-40129-CC-23. January 30, 2014. Linda Singer Stein, Judge. Counsel: Chad A. Barr, Eiffert & Associates, PA, Orlando, for Plaintiff. Luis Nestor Perez, Perez & Rodriguez, PA, Coral Gables, for Defendant.
ORDER ON PRE-TRIAL CONFERENCE
THIS MATTER came before the Court at a scheduled Pre-Trial Conference held on January 14, 2014, and, being considered by the Court and otherwise being fully advised of the premises; it is hereby ORDERED AND ADJUDGED that:
1. The Court hereby Orders that, on or before January 23, 2014 the Defendant issue a check to the Plaintiff in the amount of $700.00 pursuant to this Court’s Order dated August 28, 2013. In the August 28, 2013 Order, the Court Ordered sanctions against the Defendant in the amount of $700.00 and the Defendant has failed to make payment as of the date of the Pre-Trial Conference in this matter conducted on January 14, 2014.
2. The Plaintiff, prior to the Pre-Trial Conference, filed a Motion to Strike Defendant’s Expert Darrell Spell and Exhibits Listed by the Defendant that Reference Payments and/or the Medicare Fee Schedule. No objection was made by Defendant’s counsel to the motion being heard at the Pre-Trial Conference. No response to the Motion to Strike was filed prior to or at the Pre-Trial Conference by the Defendant. The Plaintiff’s Motion to Strike was filed in response to the Defendant filing a Second Amended Witness List, on the day before the Pre-Trial Conference, wherein the Defendant withdrew its previously disclosed expert, Ms. Nicole Bonaparte, and disclosed for the very first time a new expert, Mr. Darrell Spell. At the time of the instant Pre-Trial Conference, the Plaintiff had deposed Ms. Bonaparte and had conducted paper expert discovery regarding Ms. Bonaparte. This Court finds that the Plaintiff has made a good faith showing in its motion and at the hearing that there is a significant “expert” relationship between Mr. Spell and State Farm. This Court will not place the Plaintiff in the position of either settling for a fourth continuance or proceeding to trial. Defendant represented that it could not divulge why the experts were being substituted because it was trial strategy and therefore was protected by the attorney-client relationship. The Court finds that to allow the Defendant to make this expert swap would result in unfair prejudice to the Plaintiff, which is incurable at this point, and would most certainly result in a continuance of this trial for a fourth time at the request or action of the Defendant. The Plaintiff’s Motion to Strike Defendant’s Expert Darrell Spell is hereby GRANTED.
3. As it relates to the Plaintiff’s Motion to Strike Defendant’s Exhibits that Reference Payments and/or the Medicare Fee Schedule, the Court in accordance with its October 4, 2013 Order, hereby GRANTS the Plaintiff’s Motion to Strike. Exhibits 5-7 are hereby stricken from the Defendant’s Second Amended Exhibit List.
4. The rulings in this Order are binding even if this case does not proceed to trial on the February 2014 trial setting due to the Court’s calendar settings.
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