22 Fla. L. Weekly Supp. 324a
Online Reference: FLWSUPP 2203SPIKInsurance — Personal injury protection — Expert witnesses — Striking — Abuse of discretion to strike insurer’s expert witness for failure to comply with subpoena duces tecum for voluminous medical records of non-parties and expert’s financial documents that was served two days prior to trial — Further, non-parties’ medical records were not subject to production absent provision of statutorily required notice to non-parties — New trial required
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. COUNTY LINE CHIROPRACTIC CENTER, a/a/o DONNA LEE SPIKE-HOUSEN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-394 AP. L.T. Case No. 07-029365 SP 23. August 20, 2014. An Appeal from the County Court in and for Miami-Dade County, Florida, Lehr, J. Counsel: Lara J. Edelstein, and Michael J. Neimand, Office of General Counsel, Trial Division, United Automobile Insurance Company, for Appellant. Arnold R. Ginsberg, Ginsberg & Schwartz and Michael P. Brodi, for Appellee.
(Before TUNIS, SANCHEZ-LLORENS and HIRSCH, JJ.)
(PER CURIAM.) This matter involves an appeal from a final judgment and directed verdict, an order striking an expert medical witness, and an order granting an amended motion in limine in a personal injury protection case. Both the order granting an amended motion in limine and the order striking an expert medical witness are reviewed for an abuse of discretion. Mercer v. Raine, 443 So. 2d 944, 945 (Fla. 1983); SourceTrack LLC v. Ariba, Inc., 958 So. 2d 523, 526 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1419a]; Watson v. Peskoe, 407 So. 2d 954, 956 (Fla. 3d DCA 1981). This Appellate Court finds that the trial court did not abuse its discretion in granting the amended motion in limine prohibiting, in part, any testimony or evidence regarding the medical bills that occurred prior to May 2, 2007.
However, we find that the trial court abused its discretion in striking the expert medical witness, the sole opposing witness at trial, for noncompliance with the subpoena duces tecum. Procedurally, the subpoena duces tecum served for voluminous non-parties’ medical documents and the expert’s financial documents two days prior to trial constituted unreasonable notice. See Fla. R. Civ. P. 1.410(c); 1.280(b)(5). Further, we find that the non-parties’ medical documents subpoenaed were not subject to production for collateral impeachment purposes absent compliance with section 456.057(7), Florida Statutes requiring notice to non-parties. USAA Cas. Ins. Co. v. Callery, 66 So. 3d 315, 316 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1230a]; Crowley v. Lamming, 66 So. 3d 355, 359 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1567a]; Graham v. Dacheikh, 991 So. 2d 932, 934 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2015a]; United Auto. Ins. Co. v. Advanced Chiro. & Med. Ctr. Corp, a/a/o Elsie Mitchell, 16 Fla. L. Weekly Supp. 233a (Fla. 17th Cir. Ct. Feb. 4, 2009).
Wherefore, the final judgment and the directed verdict are REVERSED and REMANDED for a new trial. Appellee County Line Chiropractic Center’s motion for attorney’s fees pursuant to section 627.428, Florida Statutes (2008) is denied. (TUNIS, SANCHEZ-LLORENS and HIRSCH, JJ. concur.)
