23 Fla. L. Weekly Supp. 637a
Online Reference: FLWSUPP 2306ROSEInsurance — Personal injury protection — Coverage — Medical expenses — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider where affidavit is opinion of expert who was not disclosed in pretrial stipulation and who, consequently, is not permitted to testify at trial
COUNTY LINE CHIROPRACTIC CENTER, INC., as assignee of Racquel Rose, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17409 COCE 52. November 4, 2015. Giuseppina Miranda, Judge. Counsel: Cris E. Boyar, Boyar and Freeman, P.A., Coral Springs, for Plaintiff. Rashad El-Amin, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before this Court at the Hearing held on November 4, 2015 on Plaintiff’s Motion for Final Summary Judgment dated 9/30/15, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, it is thereupon,
ORDERED and ADJUDGED that:
1. The Plaintiff filed suit because the Defendant did not pay the medical bills submitted by the Plaintiff.
2. The Plaintiff moved for Summary Judgment based on the competent and detailed affidavit of Dr. Amir Hajisafari, D.C. wherein he opines the treatment was reasonable, medically necessary and related to the crash of 7/24/07.
3. In opposition the Defendant relies on the affidavit of Bradley Simon, D.C.
4. The Court will not consider the late filed affidavit of Dr. Simon as the Order Setting Pre-Trial Conferences and Deadlines was entered on 6/19/15 and, pursuant to the Order, the Defendant was required to list its expert witnesses by 7/29/15. The order further states:
At trial, the parties shall be strictly limited to witnesses and exhibits disclosed in the pretrial stipulation. A party desiring to use an exhibit or witness not previously disclosed must immediately, upon discovery, notify all other counsel and the Court. Use of the exhibit or witnesses may only be allowed for good cause shown or to prevent manifest injustice.
5. The Defendant listed Dr. Simon on 10/26/15, well after the cut off date and after numerous hearings, without leave of court or any good cause shown. Discovery in this matter ended on October 5, 2015.
6. The court finds the Defendant failed to provide the Court with a valid reason, exigent circumstances, compelling reasons, or other good cause for the late listing of this expert.
7. The court finds the Plaintiff would be prejudiced by this dilatory conduct by the Defendant’s late listed expert in a case that was filed in 2008. There would be insufficient time for the Plaintiff to: a) conduct discovery as to Dr. Simon, b) have the court rule on any Daubert issues, c) have the court rule on any other summary judgments, or d) to be properly prepared for trial which is scheduled to take place in three weeks. Any additional delay in this matter, based on the facts of this case, would cause the Plaintiff manifest injustice.
8. Since Dr. Simon is not permitted to testify at trial his affidavit cannot be used to defeat Plaintiff’s Motion for Final Summary Judgment. In support of this proposition see State Farm v. Champion Chiropractic and Rehab, 20 Fla. L. Weekly Supp. 482a (Fla. 17th Cir. 2005); Priority Medical v. State Farm, 22 Fla. L. Weekly Supp. 858a (Fla. Broward County 2015); and Fla. R. Civ. Proc. 1.510(e).
9. Only facts admissible in evidence can be used to defeat Summary Judgment. Since Dr. Simon’s opinions will not be admitted into evidence at the time of this trial his opinions cannot be used to defeat a Summary Judgment.
10. Accordingly, Plaintiff’s motion is granted and final judgment will be entered in favor of the Plaintiff.
