24 Fla. L. Weekly Supp. 178b
Online Reference: FLWSUPP 2402MUSSInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer has repeatedly failed to comply with discovery orders and has offered no justification for its noncompliance, resulting delay has prejudiced medical provider in prosecution of case, and court concludes that monetary sanctions would be inadequate, insurer is precluded from placing any expert opinions into evidence
POMPANO BEACH PAIN & REHABILITATION, INC., a Florida corporation, (a/a/o Judy Musselman), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. COUNTY COURT, 17th Judicial Circuit in and for Broward County. Case No. 12-25313 (54). May 2, 2016. Stephen J. Zaccor, Judge. Counsel: Joseph R. Dawson, Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Matthew Hellman, Fort Lauderdale, for Defendant.
OMNIBUS ORDER PRECLUDING DEFENDANT FROMCALLING ANY EXPERT WITNESSES AS SANCTIONSDUE TO NUMEROUS FAILURES TO ABIDE BY COURTORDERS COMPELLING DISCOVERY
THIS CAUSE having come on for hearing on April 27, 2016, on Plaintiff’s Second Motion to Compel Compliance with Court Orders dated April 7, 2014, and December 8, 2015, Plaintiff’s Motion to Compel Compliance with Court Order dated January 5, 2016, addressing Plaintiff’s Supplemental Interrogatories, and Plaintiff’s Motion to Compel Compliance with Court Order dated January 5, 2016, addressing Plaintiff’s Supplemental Request to Produce, (hereinafter referred to jointly as “Motions”), and the Court having reviewed same, and being otherwise duly advised in the Premises, the Court finds as follows:
Procedural History
1. This is an action for damages arising out of an alleged breach of the insurance contract and a violation of Florida Statute § 627.736 et seq.
2. Plaintiff served Defendant with its Initial on January 29, 2013.
3. On April 7, 2014, an Order granting Plaintiff’s Motion to Compel Better Answers to Interrogatories was entered by the Court which required the Defendant to provide better responses to be filed no later than thirty (30) days from the date of the Order.
4. As the Defendant failed to comply with the Order of April 7, 2014, Plaintiff filed its [First] Motion to Compel Compliance with Court Order on November 3, 2015.
5. On December 8, 2015, an Order granting that [First] Motion to Compel Compliance was entered and which required the Defendant, within 20 days to “provide fully compliant response to the subject interrogatories as required in the previous court order . . . .” At that time, the Court further held that “Plaintiff is entitled to sanctions, but the Court will defer as to any Order granting sanctions until after the Defendant submits its Better Answers to the Interrogatories. The Defendant failed to comply with that Order by providing compliant better answers.1
6. On January 1, 2016, the Plaintiff filed its Second Motion to Compel Compliance and for Sanctions, which was scheduled for hearing on this date by notice dated March 11, 2016.
7. On January 5, 2016, the Court entered two Orders granting Plaintiff’s Ex Parte Motions to Compel responses to its Supplemental Request to Produce and Supplemental Interrogatories, filed pursuant to Local Rule 11. The Defendant did not comply with these Orders2 with the time frame contained in the orders, and which also warned that sanctions could be imposed for noncompliance.
8. No justification for the repeated failure to comply with the aforementioned Orders referenced above has been offered.
Legal Analysis
The trial court has the inherent authority to impose sanctions arising out of “unprofessional or unethical litigation tactics undertaken solely for bad faith purposes.” Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002) [27 Fla. L. Weekly S175b]. In exercising this authority, however, a balance must be struck to “ensure that attorneys will not be deterred from pursuing lawful claims, issues, or defenses on behalf of their clients or from their obligation as an advocate to zealously assert their clients’ interests.” Id., at 226. In addressing the obligations of attorneys and their duties to the court, the Third District Court of Appeals stated in Visoly v. Security Pacific Credit Corp., 768 So. 2d 482, 492 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2003a], that:
The privilege to practice law requires attorneys to conduct themselves in a manner compatible with the administration of justice. While counsel does have an obligation to be faithful to their clients lawful objectives, that obligation cannot be used to justify unprofessional conduct by elevating the perceived duty of zealous representation over all other duties.
Id., at 492. (emphasis added).
In this case, the Defendant has violated numerous orders compelling discovery responses without any discernable justification or excuse. “A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Garden-Aire Village Sea Haven, Inc., v. Decker, 433 So. 2d 676, 677 (Fla. 4th DCA 1983), cited in Precision Tune Auto Care, Inc., v. Radcliffe, 804 So. 2d 1287, 1291 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D361a].
On December 8, 2015, the Court placed Defendant on notice that its failure to comply with the Order of April 7, 2014,3 entitled to Plaintiff to sanctions. At that time, the Court deferred determining the sanction, if any, to be imposed to permit the Defendant an opportunity to purge itself by timely submitting compliant interrogatory responses. In failing to avail itself of that opportunity to ameliorate the sanction, the Defendant has, instead, subjected itself to a more significant sanction by failing to comply with that second order. Further exacerbating the Court’s assessment of that violation, was the failure to abide by the January 5, 2016, Rule 11 Orders. The Court also considered the fact that the hearing on these Motions seeking compliance had been scheduled for April 27, 2015, since March 11, 2016. Despite ample warning of the impending Court action on these motions, the Defendant made no effort to comply with the respective orders until the night before the hearing.4
The Court has considered the factors articulated by the Florida Supreme Court in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), and finds that these factors militate toward a harsh sanction commensurate with the contumacious refusal to comply with the Court’s orders. Because of the number of orders disobeyed, the extended duration of time in which compliance failed to occur, the Court concludes that disobedience was willful, deliberate and contumacious, and followed an order where sanctions was found to be appropriate. Further, the delay has prejudiced the Plaintiff in timely prosecuting a 2012 case for which no reasonable justification was offered.
Conclusion
Based upon the foregoing finds of fact, it is hereupon,
ORDERED that Plaintiff’s Motions to Compel Compliance are granted in that the Defendant shall file compliant responses to Plaintiff’s discovery requests as addressed in the prior Court Orders. The Court also finds that sanctions are appropriate and that monetary sanctions are inadequate resulting from these violations. Accordingly, the Defendant shall not be required to provide any responses to the discovery requests addressing expert discovery as the Court is precluding the Defendant from placing into evidence any expert opinions, in any format, including affidavits or trial testimony, as a sanction for its conduct outlined above.
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1At the hearing, Defendant’s counsel represented that “Better Answers” had been filed prior to the hearing. However, the record reflects that at 7:54 p.m. on April 26, 2016, the evening before the 9:00 a.m. hearing, the Defendant submitted unverified answers which does not comply with Fla. R. Civ. P. 1.340.
2The Defendant also filed its Response to Plaintiff’s Supplemental Interrogatories and Supplemental Request to Produce at 7:54 p.m. on April 26, 2016, and objected to every discovery request of the Plaintiff.
3That Order compelled the Defendant to provide better answers to Plaintiff’s Initial Interrogatories.
4The ruling of the Court obviates the need to comment on the noncompliant nature of the belated responses submitted by Defendant in providing non-verified answers to the Initial Interrogatories and objecting to all of the supplemental discovery responses. The Court is left to speculate why, if the Defendant intended to object, it could not have done so timely.
