25 Fla. L. Weekly Supp. 484b

Online Reference: FLWSUPP 2505BARRInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer has plead frivolous defenses and engaged in pattern of conduct designed to thwart discovery evincing willful, contemptuous, and contumacious disregard of rules of civil procedure and court orders, insurer has previously been sanctioned for discovery violations, and insurer’s conduct has prejudiced medical provider, insurer’s pleadings are stricken with respect to issues of relatedness and medical necessity of charges — Motion to strike insurer’s pleadings with respect to issue of reasonableness of charges is denied

OPEN MAGNETIC SCANNING, LTD. d/b/a WINDSOR IMAGING, a/a/o Andres Barrantes, Plaintiff(s), v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-08935 COCE 52. October 25, 2016.Giuseppina miranda, Judge. Counsel: Marc Finkelstein, Law Office of Marc Finkelstein, P.A., Ft. Lauderdale, for Plaintiff. Kyle Mixson, Vernis & Bowling of Broward, P.A., Hollywood, for Defendant.

ORDER ON PLAINTIFF’S MOTION TO STRIKEPLEADINGS FOR WILLFUL NONCOMPLIANCEWITH COURT ORDERS

THIS CAUSE having came before the Court at a hearing on Plaintiff’s Motion to Strike Pleadings for Willful Noncompliance with Court Orders, and the Court having reviewed pertinent file materials, and having heard the arguments of counsel on October 4, 2016, the Court finds and rules as follows:

1. On January 27, 2015, Plaintiff filed a Supplemental Request to Produce. Plaintiff was seeking from Defendant what is commonly come to be known as a Geo Zip Report. The Geo Zip Report was to include names of other MRI providers within a limited geographical range in Broward County, what said MRI providers charged the Defendant for said MRIs, the claim number, etc. The request was ultimately limited to MRI charges submitted to the Defendant for MRIs which had taken place two months before and after the MRIs in this case, was to be attested to and to not include charges wherein just an interpretation of the MRI had been conducted. In other words, just global charges.

2. On February 12, 2015, Defendant filed its response to Plaintiff’s Supplemental Request to Produce. Defendant objected to said request as “vague, ambiguous, overly broad, unduly burdensome, HIPAA, third-party privacy, and not reasonably calculated to lead to the discovery of admissible evidence. Further, Defendant does not keep such documents in the course of regularly conducted business and is under no obligation to create documents for the Plaintiff’s convenience, as such the request is beyond the scope of Fla. R. Civ. P. 1.280 and Fla. R. Civ. P. 1.350.”

3. On May 28, 2015, this Court held a hearing on Defendant’s objections to Plaintiff’s Supplemental Request to Produce. It entered an Order overruling Defendant’s objections and directing Defendant to produce a “geozip” report, which was not to include any TC charges, along with an attestation that the “geozip” report is true and contains accurate information within 45 days from the date of the Order, making it due on or about July 12, 2015.

4. On July 9, 2015, Defendant produced a “geozip” report which did not contain the required attestation, and therefore was not in compliance with this Court’s May 28, 2015, Order.

5. On July 13, 2015, Plaintiff sent Defendant a good faith letter pursuant to Fla. R. Civ. P. 1.380(a)(2), requesting Defendant provide the required attestation. No attestation was provided.

6. On August 6, 2015, Plaintiff filed a Motion to Compel Compliance with the May 28, 2015 Court Order and for Sanctions.

7. A hearing was held on Plaintiff’s Motion on September 21, 2015.The Honorable Nina DiPietro sitting in for this Court granted entitlement to sanctions and further ordered Defendant to produce an attestation regarding the truth and accuracy of the report and whether the charges that do appear in the report are technical component (TC) charges or global charges. Defendant was given 60 days to produce said altered report.

8. On January 5, 2016, the Court conducted an evidentiary hearing to determine the amount of sanctions due arising from Judge DiPietro’s Order of September 21, 2015. The Court determined that the Defendant was liable for a total of $2,295.00 in sanctions due to its failure to comply with the Court’s Order of May 28, 2015. Defendant filed an Amended Motion for Relief and to Vacate Orders on January 29, 2016.

9. Notwithstanding Judge DiPietro’s Order of September 21, 2015, and the evidentiary hearing of January 5, 2016, since Defendant had still not complied with either of this Courts’ Orders of May 28, 2015, and September 21, 2015, on January 5, 2016, Plaintiff filed its Second Motion to Compel Compliance with the Court Orders dated May 28, 2015, and September 21, 2015.

10. On February 26, 2016, and just three days prior to the hearing on Plaintiff’s Second Motion to Compel Compliance with the Court Orders, the Defendant finally provided the amended “geozip” report with the required alterations. Pursuant to the Court Order dated September 21, 2015, it was more that 60 days overdue.

11. On February 29, 2016, this Court heard Plaintiff’s Second Motions for Sanctions in connection with Defendant’s failure to comply with this Court’s Order of May 28, 2015, and Judge DiPietro’s Order of September 21, 2015. The Court deferred ruling and stated “to be reconsidered if additional deadlines are missed.”

12. In addition to the discovery relating to the “geozip” report, Plaintiff served Defendant with its first set of seventeen interrogatories and sixteen requests for admissions on July 22, 2013.

13. On August 27, 2013, Defendant filed its response to Plaintiff’s request for admissions, including numerous objections. Defendant included the following objections to request for admissions numbered six through sixteen: “objection: vague and ambiguous, objection: calls for a legal conclusion.” Plaintiff’s request number nine asked Defendant to admit “That Defendant has no medical report with regard to any medical treatment fee which benefits are sought by Plaintiff specifically stating that the treatment was not medically necessary.” Defendant responded in part: “Objection: vague, ambiguous, overly broad, work product and attorney-client privilege.”

14. On March 17, 2014, almost a year after they were initially served, Defendant filed its answers to interrogatories, including numerous objections. Out of the seventeen interrogatories propounded, Defendant responded to sixteen as follows: “vague, ambiguous, overly broad, work product privilege, and/or not reasonably calculated to lead to the discovery of admissible evidence.”

15. On February 2, 2016, Plaintiff sent a good faith letter to Defendant regarding better responses to interrogatories and request for admissions. Defendant never provided better answers.

16. On February 26, 2016, Plaintiff filed a Motion to Compel Defendant’s Better Response to Plaintiff’s Requests for Discovery and for Sanctions. The matter was set for hearing on March 28, 2016.

17. On March 28, 2016, a hearing was held on Plaintiff’s Motion to Compel Defendant’s Better Response to Plaintiff’s Requests for Discovery and for Sanctions. The Plaintiff was seeking better responses to Request for Admissions numbered 6 through 16. This Court proceeded to question Defendant as to its responses. As to number 6, the request was “admit that the claimant incurred reasonable expenses for necessary medical and rehabilitative care provided by the Plaintiff as a result of the above referenced motor vehicle accident,” Defendant’s response was objection, vague and ambiguous.” The Court asked “What is so vague about number 6 that makes it vague and ambiguous?” Defendant replied that “I didn’t prepare these responses, but I can give a better one. I can answer it.” The Court responded that “I can appreciate that. . .this file may not be yours. It’s signed by another lawyer. But ultimately its your firm’s responsibility and your client’s responsibility to answer those.” This Court further stated that “I don’t understand why that attorney wasn’t able to answer these questions.” The objection was overruled. The Court found Defendant’s objections to the remaining Requests for Admissions (numbered 7-16) baseless as well and the objections were overruled and ordered Defendant to provide better responses within 10 days. Further, the Court directed Defendant to review all of its responses to interrogatories numbered 2, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15 and within 20 days of the order, Defendant was to notify Plaintiff and the Court as to whether it intends to stand on its objections or furnish better answers. This was due on or about April 18, 2016.

18. Although Defendant did provide better responses to Plaintiff’s request for admissions numbered 6 through 16 on March 31, 2016, on April 18, 2016, Defendant’s counsel sent Plaintiff an e-mail stating it was standing on its objections to interrogatories numbered 2, 6, 7, 8, 9 and 14. Further, Defendant would provide better responses to interrogatories number 5, 11, 12, 13 and 17 as quickly as possible. Defendant provided better answers to interrogatories number 5, 11, 12, 13 and 17, on July 7, 2016, almost three (3) months after they were due pursuant to this Court’s Order. Interrogatory Number seven sought from the Defendant whether it was claiming the MRIs at issue were not medically necessary and if so to state what information it was relying upon to maintain that position. Interrogatory eight sought the same information regarding medical relatedness. Notwithstanding the hearing on March 28, 2016, Defendant “stood” on its objections to interrogatories seven regarding medical necessity and eight regarding relatedness, stating: “vague, ambiguous, overly broad, fails to be reasonably calculated to lead to the discovery of admissible evidence, work product and attorney-client privilege.” Additionally, with respect to interrogatory number seven regarding medical necessity, Defendant objected stating: “The Defendant maintains that it is the Plaintiff’s burden to prove that all services were reasonable and medically necessary.”

19. In the course of litigation, Plaintiff attempted to schedule the deposition of Defendant’s corporate representative.

20. On May 28, 2015, the Court ordered the Defendant to furnish a date on which Plaintiff could take said deposition. Further, the deposition was to take place within seventy-five (75) days.

21. On September 4, 2015, the deposition of Defendant’s corporate representative was mutually coordinated via e-mail and set for January 19, 2016.

22. On September 24, 2015, the parties entered into an Agreed Order on Defendant’s Motion for Protective Order and Motion in Limine filed on June 12, 2015.

23. On December 3, 2015, Plaintiff filed its Notice of Taking Deposition Duces Tecum.

24. On December 8, 2015, Defendant filed Objections to Duces Tecum for Defendant’s Corporate Representative, even though an Agreed Order on Defendant’s Motion for Protective Order had already been entered.

25. On January 18, 2016 (a day before the scheduled deposition), Defendant advised Plaintiff via email that neither its office nor its client would be attending the deposition of Defendant’s Corporate Representative scheduled for January 19, 2016, due to a scheduling conflict; even though the deposition had been mutually coordinated more than three months prior and was Court Ordered. Additionally, Defendant stated that alternative dates would be provided.

26. On January 19, 2016, Plaintiff advised Defendant it agreed to reset the deposition of Defendant’s Corporate Representative, and requested alternative dates. Defendant responded that it would provide dates shortly.

27. After not receiving any alternative dates, Plaintiff sent emails on January 26, 2016 and February 23, 2016, inquiring as to available dates for the deposition.

On February 24, 2016, Defendant responded by email stating that it had just requested dates of availability from its client.

28. Nine (9) months after this Court granted Plaintiff’s first Motion to Compel and ordered the deposition of Defendant’s Corporate Representative within seventy-five (75) days, the deposition still had not been set.

29. Due to Defendant’s continued non-compliance with this Court’s multiple orders, on March 8, 2016, Plaintiff filed its Second Motion to Compel Deposition Date and for Sanctions.

30. On March 28, 2016, this Court held a hearing on Plaintiff’s motion and it was determined that the parties had agreed on the deposition date of Defendant’s corporate representative.

31. That it is clear that Defendant finally offered Plaintiff dates for the deposition of its corporate representative due to the upcoming hearing.

32. On April 20, 2016, Plaintiff was finally able to depose the Defendant’s corporate representative.

33. That although Defendant had previously provided Plaintiff with its Geo Zip Report, and never claimed the information contained within said report was privileged, Defendant did not allow its corporate representative to answer any questions regarding said report. Defendant claimed it was not one of the items listed on the Subpoena Duces Tecum and therefore Plaintiff was not entitled to question the corporate representative regarding the Geo Zip Report. In fact, the item was on the Subpoena Duces Tecum numbered 1, which requested “all documents Defendant produced in response to Plaintiff’s Request for Production,” which included the Geo Zip Report which Defendant ultimately produced in response to Plaintiff’s Supplemental Request for Production. Further, even if the Geo Zip Report was not specifically enumerated on the Subpoena Duces Tecum, the report goes to the heart of one of the issues in this case, which is the reasonableness of Plaintiff’s charges and as such, Plaintiff was entitled to question the corporate representative about it. Defendant’s corporate representative did not provide any testimony as to the reasonableness of Plaintiff’s charge in relation to the Geo Zip Report.

34. Additionally, it is improper for an attorney to instruct a witness not to answer questions at a deposition in the absence of a privilege objection.

35. In this case, the Plaintiff filed its complaint on May 22, 2013.On July 23, 2013, Defendant filed its Answer and nine Affirmative Defenses. On April 25, 2016, Plaintiff sent Defendant a letter pursuant to Section 57.105, Florida Statutes, demanding it withdraw its fifth, sixth, eighth and ninth Affirmative Defenses no later than May 17, 2016 (the 21 day safe harbor period provided by Section 57.105, Florida Statutes). Due to Defendant’s failure to withdraw its Affirmative Defenses, on May 17, 2016, Plaintiff filed its Motion for Attorney’s Fees and Costs. Defendant did not withdraw its fifth, six, eighth and ninth Affirmative Defenses until May 20, 2016.

36. The Defendant also put forth the Affirmative Defense Plaintiff lacked standing to maintain the lawsuit. On May 23, 2016, Plaintiff again sent Defendant a letter pursuant to Section 57.105, Florida Statutes, demanding the withdrawal of its Affirmative Defense regarding standing. On June 13, 2016, Defendant withdrew its said Affirmative Defense.

37. Based on the record, the Defendant has clearly engaged in a pattern designed to thwart discovery evincing a continuous pattern of willful, contemptuous, and contumacious disregard of the Florida Rules of Civil Procedure and the Court’s several orders concerning its obligation to produce relevant information. As such, a default judgment as to related and medical necessity is appropriate in this case.

38. In determining whether the sanction of the entry of a default against Defendant is warranted, the Court considered the six-prong test delineated in Kozel v. Ostendor 629 So. 2d 817 (Fla. 1994); see also, Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) [30 Fla. L. Weekly S6a] and Mercer v. Raine, 443 So. 2d 944 (Fla. 1983):

a. Whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;

b. Whether the attorney has been previously sanctioned;

c. Whether the client was personally involved in the act of disobedience;

d. Whether the delay prejudiced the opposing party through undue expense, loss of evidence, or some other fashion;

e. Whether the attorney offered reasonable justification for noncompliance; and

f. Whether the delay created significant problems of judicial administration.

39. Defendant’s willful failure to comply with multiple discovery requests and the pleading of frivolous defenses clearly demonstrates State Farm’s complete disregard for the Court’s authority and the Florida Rules of Civil Procedure. This case was filed on May 22, 2013. Shortly thereafter, Plaintiff propounded basic discovery involving three primary issues concerning the MRIs at issue, whether said MRIs were reasonable in price, and medically necessary and related to the accident. At the time of this hearing, the case was set for pre-trial conference on October 25, 2016, and on a trial docket commencing November 8, 2016. Notwithstanding Plaintiff’s efforts to obtain meaningful discovery as to the issues of reasonable, related and necessary, the Court finds that the Defendant has continuously stonewalled Plaintiff’s efforts through unnecessary delay including, but not limited to, frivolous objections which it continued to stand on despite being admonished previously by the Court. In its answers to interrogatories regarding medical necessity, Defendant also stated: “The Defendant maintains that it is the Plaintiff’s burden to prove that all services were reasonable and medically necessary.” A defendant may not properly object to a discovery request seeking the factual basis for its denial of a matter of which the Plaintiff has the burden of proof based upon a claim of “burden shifting.” See South Florida Pain and Rehabilitation of Hialeah LLC a/a/o Fabian Rodriguez v. Star Casualty Insurance Co., 24 Fla. L. Weekly Supp. 49a (Fla. 17th Jud. Cir. March 8, 2016) (Judge Robert W. Lee) citing Fla. R. Civ. P. 1.280 (b)(1): “parties may obtain discovery regarding any matter, not priviliged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery, or the claim or defense of any other party. . .” Defendant maintains the Plaintiff is not prejudiced since it was made aware of how Defendant intended to rebut Plaintiff’s presumption of related and necessary by its filing of the affidavit of Michael Mathesie on September 13, 2013. The Court is unconvinced and finds Plaintiff has been prejudiced by the near three and a half year delay in finally filing Dr. Mathesie’s affidavit, which is the first time Defendant revealed how it intended to rebut or prove the MRIs in this case were not medically related or necesary. The very purpose of discovery is to permit, well in advance of trial, each side to “eliminate the element of surprise, to encourage the settlement of cases, to avoid costly litigation, and to achieve a balanced search for the truth to ensure a fair trial. See Dodson v. Persell, 390 So.2d 704 (Fla. 1980); and Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (1970). This purpose was clearly circumvented by the Defendants in this case.

40. The instance in which the Court imposed sanctions in this case involved a “geo zip” report. State farm has continuously objected producing this report not only in this division but in every other division as well. Health Diagnostics of Fort Lauderdale, LLC, d/b/a Stand Up MRI of Fort Lauderdale a/a/o Denise Ferrer v. State Farm Mutual Automobile Insurance Company, 23 Fla. L. Weekly Supp. 1085a (17th. Jud. Circuit) (February 23, 2016) (Judge Robert W. Lee).

41. This Court finds Defendant’s willful failure to abide by this Court’s Orders and the Florida Rules of Civil Procedure has severely prejudiced the Plaintiff in its attempt to prosecute this matter and bring it to conclusion. At the hearing of October 4, 2016, Defendant was given the opportunity to justify its repeated noncompliance with Court Orders. Defendant argued at the hearing, it could not properly respond to the Plaintiff’s discovery concerning related and necessary since the claimant had been in a separate accident just months prior to the accident in this case and Defendant had not reviewed the medical records associated with the prior accident.¹ This Court finds Defendant’s explanations completely unconvincing. Moreover, the delay caused by the Defendant through its willful behavior and the numerous time consuming hearings the Court has had to conduct in connection with said behavior, has created significant problems of judicial administration. This case was filed as a small claims matter involving less that $1,300.00. At this point in the case, the Defendant’s actions have caused the Plaintiff to incur much more in attorney’s fees than the claim itself. Given the totality of the circumstances as outlined above, along with the applicable Florida Rules of Civil Procedure taken in part materia with one another, as well as the applicable case law, it is

ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion for Relief and to Vacate Orders dated 9/21/15 and 2/1/16 is DENIED;

2. Pursuant to this Court’s Corrected Order on Plaintiff’s Motion for Sanctions dated February 1, 2016, State Farm Mutual Automobile Insurance Company shall furnish checks to Marc Finkelstein, Esquire, in the amount of $1,620.00 and Joseph Dawson, Esquire, in the amount of $675.00, no later than Monday, October 24, 2016;

3. Plaintiff’s Motion to Strike Pleadings for Willful Noncompliance with Court Orders is hereby GRANTED in part. Defendant’s pleadings are stricken with respect to the issues of related and necessary for the reasons stated in the record and pursuant to Kozel v. Ostendorf.

With respect to the issue of reasonableness, Plaintiff’s Motion is DENIED.

The only issue remaining in this case is the reasonableness of pricing.

__________________

¹The Defendant notified the Plaintiff in its answer dated July 23. 2013, it intended to challenge the relatedness and medical necessity of the MRIs. It also knew as early as June 24, 2015, the claimant had been in a prior accident pursuant to the deposition of the claimant. Yet, at no time did the Defendant seek an extension of time in order to respond to Plaintiff’s discovery. Instead, it chose to stand on its frivolous objections and ignore deadlines set by the Court and the Florida Rules of Civil Procedure.