25 Fla. L. Weekly Supp. 842a
Online Reference: FLWSUPP 2509GRANInsurance — Personal injury protection — Discovery — Failure to comply — Motion to strike insurer’s expert witness is granted where insurer responded to court order directing it to file fully compliant responses to medical provider’s expert interrogatories by filing unverified answers and amended answers, insurer did not file verified answers until two working days before trial, and answers contained inaccurate information — Striking witness is justified where delay in answers has prejudiced provider’s ability to prepare for trial, attorney’s disobedience was willful and contumacious, attorney has previously been sanctioned for this conduct, there was no reasonable justification for noncompliance, and delay caused significant problems of judicial administration
NOB HILL CHIROPRACTIC a/k/a MICHAEL COHEN DC PA a/a/o Kenrick Grant, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court in and for Broward County, Civil Division. Case No. 06-016458 COCE (54). October 31, 2017. Florence T. Barner, Judge.
ORDER GRANTING PLAINTIFF’S MOTION TOENFORCE COURT ORDER OF AUGUST 30, 2017 ANDFOR SANCTIONS AND TO STRIKE DR. MICHAELMATHESIE FOR FAILURE TO COMPLY WITHCOURT ORDERS OF MAY 11, 2017 AND AUGUST 30, 2017
THIS CAUSE having come on to be heard on October 31, 2017, on the Motion to Enforce Court Order of August 30, 2017 and for Sanctions and to Strike Dr. Mathesie for Failure to Comply with Court Orders of May 11, 2017 and August 30, 2017, the Court having conducted extensive hearing, including a hearing of over two hours on October 31, 2017, and having reviewed the prior motions, the discovery requests, the discovery responses, the Court the Motion, and being otherwise duly advised in the Premises, finds as follows:
I. Background
1. This is an action seeking payment of benefits pursuant to a contract for insurance which included personal injury protection benefits as defined by Florida Statute § 627.736 et seq.
2. On January 17,2006, the Claimant, in insured of the Defendant, was involved in a motor vehicle accident for which he sought medical treatment at the office of the Plaintiff, who was the beneficiary of an assignment of benefits of the instant insurance policy and which provides standing for them to prosecute this lawsuit.
3. On May 10, 2006, at the request of the Defendant, a physical examination of the Claimant was conducted by Marc J. Rogoff, D.C., pursuant to Fla. Stat. § 627.736(7)(a).
4. Thereafter, on January 6, 2008, the Defendant had the treatment records created by the Plaintiff reviewed by Joseph Costello, D.C.
5. On October 14, 2013, the Defendant filed the affidavit of Michael Mathesie, D.C., after having submitted the medical records and reports created by the Plaintiff for review.
6. On May 11, 2017, this Honorable Court entered its Order Setting Jury Trial, which included that all discovery should be completed no later than 10 days prior to the trial period, and scheduled a Calendar Call for October 20, 2017.
7. On September 5, 2017, as is attached to the Joint Pre-Trial Stipulation, the Defendant listed Michael Mathesie, D.C., as an expert witness.
8. On October 20, 2017, both the Plaintiff in the Defendant announced ready for trial.
9. Based upon the failure o Defendant to respond to Plaintiff’s expert interrogatories, served on March 31, 2017, the Plaintiff was compelled to file a series of to compel compliance with Court Orders involving the failure of the Defendant to respond to the expert interrogatories propounded by the Plaintiff.
10. On May 11, 2017, the Court entered an Order granting the Motion of the Defendant seeking an extension of time to respond to the expert discovery and which permitted them 30 days from the date of that order, or until June 11, 2017.
11. Because the Defendant did not respond to this discovery timely, a Motion to Compel Compliance with Court Order was filed on July 26, 2017, and was heard on August 30, 2017. An Order was entered on August 30 which provided that the Defendant was to “provide fully compliant responses to [interrogatories at] ¶¶ 5, 6, 9, 10, 11, 13, 14, 15, 16 and 17 within 15 days.” (emphasis added). The Court further awarded sanctions of $1,000 to be paid in 30 days. A copy of this Order is attached as Exhibit “A.” [Editor’s note: Exhibit omitted.]
12. On September 14, 2017, the Defendant Unverified Answers to the Interrogatories. Pursuant to Fla. R. Civ. P. 1.340(a), these answers were to be under oath. As such, they are treated as a nullity and were not compliant at all, let alone fully compliant and the Defendant did not comply with the August 30, 2017 Order.
13. On October 16, 2017, Plaintiff filed its Motion to Compel Compliance with Court Order dated August 30, 2017. The Motion attacked, amongst other things, the completeness of the responses in the issue of whether the answers were compliant with the rules of procedure in the aforementioned Order.
14. On October 20, 2017, the Defendant filed its Second Amended Answers to Plaintiffs Expert Interrogatories. Inexplicably, these responses still were not verified and thus were still not in compliance with the August 30, 2017 Court Order.
15. On October 26, 2017 the Defendant filed its Verified Second Amended Answers to Plaintiffs Expert Interrogatories, which were finally verified. This filing was done two (2) working days prior to trial, and well after the discovery cut off. Moreover, the responses regarding the amount of money paid by the Defendant to Dr. Mathesie deviated substantially from other verified interrogatory responses submitted by State Farm to the very same question.
16. In South Florida Pain & Rehabilitation Center (a/a/o William A. McIntyre) v. State Farm Mutual Automobile Insurance Company, CONO 13-7299 (71), the Defendant provided answers to the same interrogatory question regarding the amount of money paid to Dr. Mathesie. Here is a comparison of the amounts disclosed on each:
| Nob Hill Case | South Florida Pain Case | |
| 2014 | $162,915.50 | $ 187,960.50 |
| 2015 | $260,435.00 | $318,693.00 |
17. At the hearing, counsel for the Defendant admitted that the sums disclosed in this case are not accurate.
18. Because of the continued pattern of failing to file expert interrogatory responses that complied with the aforementioned Orders of the Court, including, specifically, the August 30, 2017, Order which required the Defendant to provide fully compliant responses, the Plaintiff contends that the Defendant had deprived the Plaintiff of the ability to properly prepare to impeach Dr. Mathesie as to the amounts paid to him to demonstrate bias and prejudice as permitted by Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999) [24 Fla. L. Weekly S187a], and its progeny.
II. Findings of Fact
19. This is a case which has been in litigation for approximately 11 years.
20. The expert interrogatories at issue in this case were served upon the defendant on March 31, 2017.
21. A written Order entered in open court required the Defendant to provide compliant responses to these interrogatories no later than June 12, 2017. The Defendant did not comply with this order within that timeframe.
22. The first Motion to Compel Compliance with the May 11, 2017 Order on July 26, 2017. This resulted in the August 30, 2017 Order which required full compliance by September 14, 2017.
23. Despite the fact that the trial of this cause was imminent, and in contumacious disregard of the requirement of the Court that “fully compliant responses” be served within 15 days of that Order, the Defendant nonetheless submitted two unverified answers to expert interrogatories. Clearly these are a nullity as all interrogatories must be served under oath.
24. Belatedly, on October 26, 2017, two working days prior to the commencement of this jury trial, the Defendant submitted for the first time its verified answers to the expert interrogatories.
25. As was evidenced by a comparison of the information provided with other interrogatory answers provided by the same Defendant, the information provided regarding the amount paid to Dr. Mathesie was a substantial deviation which created questions of credibility on the part of the Plaintiff and the Court regarding the veracity of these responses. Because the information sought addressed the issue of the financial bias and incentive of the expert, this information was critical to the Plaintiff in the presentation of its cross-examination and impeachment of the expert for the Defendant.
26. At the hearing on this Motion, counsel for the Defendant indicated that, indeed, the information provided in these belated expert interrogatory answers was inaccurate.
27. As a result of the confluence of the actions of the Defendant, first in failing to comply with two Court Orders, and in providing inaccurate information on the eve of the commencement of the jury trial, the Plaintiff has suffered absolute prejudice in its ability to prepare to cross-examine the expert witness for the Defendant. This prejudice was curable only by a continuance of the case that has lasted over a decade.
28. It is apparent to the court that the Defendants has deliberately disregarded the Orders of this Court and has acted in bad faith.
III. Conclusions of Law
The failure of the Defendant to comply with the 1.340 of the Florida Rules of Civil Procedure, or the Court’s Orders of May 11 and August 30, 2017, represents bad faith conduct which was contumacious in nature. A party has an obligation to abide by Court Orders to avoid the necessity of further court action to enforce its prior orders. See e.g., Summit Chase Condo. Assoc. Inc., v. Protean Investors, Inc., 421 So. 2d 562, 564 (Fla. 3d DCA 1982)(“It is inherent in the present rules of discovery that lawyers, out of respect for the adversary system, should make good faith efforts to comply with one another’s reasonable discovery requests without constant recourse to the trial courts. This is especially so when counsel know full well that compliance with discovery is inevitable if sanctions are to be avoided.”)
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 S357b]. 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 arriving at the decision to strike the expert of the Defendant, the court has considered those factors contained in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), and concludes that the confluence of those factors militate towards the sanction of the striking of the expert. This is because the court finds that the attorneys disobedience was willful, deliberate and contumacious, the attorney had been previously sanctioned for this conduct, the delay in providing the information has prejudiced the Plaintiff in compelling them to choose between a continuance of a very old case or going to trial ill-prepared to impeach the expert, there was no reasonable justification for the noncompliance, and the delay has created significant problems of judicial administration.
The Court is mindful that “[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].
The Florida Supreme Court recently addressed this type of evasive discovery gamesmanship in Bainter v. League of Woman Voters of Fla., Inc., 150 So. 2d 1115, 1118 (Fla. 2014) [39 Fla. L. Weekly S689a], when Justice Pariente wrote:
We simply do not countenance and will not tolerate actions during litigation that are not forthright that are designed to delay and obfuscate the discovery process. As this Court has long stated, full and fair discovery is essential to the truth-finding function of our justice system, and parties and non-parties alike must comply not only with the ‘technical provisions of the discovery rules,’ but also with ‘the purpose and spirit of those rules in both the criminal and civil context.’
(citing to Scipio v. State, 928 So. 2d 1138, 1144 (Fla. 2006) [31 Fla. L. Weekly S114a].
IV. Ruling of the Court
The Court grants the Motion to Strike Dr. Mathesie as the expert for the defendant in this cause. The Defendant failed to avail itself of the opportunities to comply with the aforementioned Orders despite the knowledge that the case was set for trial imminently. No other remedy is available to the Plaintiff which would not cause significant prejudice
