26 Fla. L. Weekly Supp. 675a
Online Reference: FLWSUPP 2608DORInsurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Striking of insurer’s pleadings is warranted as sanction for failing to respond to expert discovery and comply with court orders compelling responses where insurer’s attorneys have been previously sanctioned, insurer was directly involved in disobedience, medical provider was prejudiced by delay, insurer was unable to articulate any sufficient justification for noncompliance, and delay created significant problems in judicial administration — Default entered
PAIN MGMT GROUP OF SO FL INC, (a/a/o Charles Dor), Plaintiff(s) / Petitioner(s) v. NATIONAL SPECIALTY INS CO, Defendant(s) / Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE07000423, Division 51. October 8, 2018. Kathleen McCarthy, Judge. Counsel: Mac S. Phillips, Emilio Roland Stillo and Justin Morga, for Plaintiff. Jose Font and Frantz Nelson, for Defendant.
ORDER STRIKING DEFENDANT’S PLEADINGSAND ENTERING A DEFAULT
THIS CAUSE came before the Court on August 29, 2018, August 31, 2018 and September 28, 2018 for an evidentiary hearing on the extent of sanctions to be imposed against Defendant1 , and the Court, having made a thorough review of the matters filed of record; having considered and weighed the evidence presented; having observed the demeanor of the witnesses; having reviewed the relevant legal authorities; having heard argument of counsel and having been sufficiently advised in the premises,
ORDERS AND ADJUDGES that Defendant’s pleadings are hereby stricken and a default is hereby entered for the reasons explained below.
Findings of Fact
1. This action for unpaid personal injury protection (PIP) benefits was filed on January 8, 2007 and, as of October 5, 2018, has been pending for 4,288 days.
2. On February 7, 2017, this Court entered an Order Referring Case to Mediation, which gave the parties 10 days to stipulate to the designation of a mediator failing which Joyce A. Julian was to be appointed by the Court. The Order Referring Case to Mediation further required the mediation to be held within 60 days and specified that “[t]he appearance of all parties, and their counsel, is MANDATORY” (emphasis in original).
3. The mediation did not take place within 60 days as required by the mediation order, so on May 8, 2017, the Court issued an Order Setting Order to Show Cause directing all parties to appear before the Court on June 2, 2017 “to show cause why your pleadings should not be stricken, a default should not be entered and/or sanctions imposed for failure to complete Mediation from this Court’s Order dated February 7, 2017.
4. On May 16, 2017, court-appointed mediator Joyce A. Julian served the Notice of Mediation stating that the mediation will take place on Monday, May 22, 2017 at 9:30 a.m. at Ms. Julian’s office in Fort Lauderdale.
5. On May 19, 2017, Defendant filed/served Defendant’s Motion for Substitution of Law Firm, Motion for 35 Day Continuance, Extension, Stay and/or Abatement to as to Permit the Defendant to Proceed in this Matter with Counsel of its Choice. This motion states J.P. Font was retained by Defendant to serve as its lead counsel at a time when Mr. Font was employed by the law firm of Vernis & Bowling of Broward. The motion further states that on February 27, 2017, Font resigned from that firm and became the managing partner of his new firm, Font & Nelson. On May 9, 2017, the motion continues, it was determined that the instant case would go with Mr. Font to his new firm instead of remaining at Vernis & Bowling, and that Defendant requested the Court approve an order substituting Font & Nelson for Vernis & Bowling. The motion also provided that Vernis & Bowling would submit substitution papers upon the completion of the transfer of electronic data from Vernis & Bowling to Font & Nelson and that it was reasonably anticipated that the transfer would be complete within 9 to 13 business days from May 9, 2017. On May 19, 2017, Vernis & Bowling and Font & Nelson filed a Joint Stipulation for Substitution of Counsel (the stipulation is dated May 9, 2017 but not filed or served until May 19, 2017).
6. The mediation scheduled for Monday, May 22, 2017 at 9:30 a.m. did not go forward. On May 24, 2017, Ms. Julian filed the Mediator’s Report stating that Plaintiff and its counsel appeared and waited until 10:00 a.m. and that “Jose P. Font, Esq. and Alan Blose, Esq. did not appear for mediation, however they did send an email after 5pm on 5/19/17 that they would not be appearing as they had a Motion and Order Substituting them as new counsel of record.”
7. On May 31, 2017 — two days before the scheduled hearing on the Court’s Order to Show Cause and nine days after Defendant failed to appear at the mediation — Defendant filed “Defendant’s Emergency Motion to Dispense with the Court’s Order to Show Cause, or in the Alternative, Motion for Relief/Continuance from the Court’s Mandatory Order to Show Cause Hearing.” In that motion, Defendant stated that “[g]iven the abovementioned negotiations regarding change of counsel/law firm, NATIONAL and its counsel were unable to comply with the Court’s order regarding mediation as NATIONAL was in the process of determining its counsel of choice.” This statement, however, is contrary to Defendant’s representation in its May 19, 2017 motion that Defendant had already chosen Font & Nelson as its counsel. Defendant’s emergency motion also stated that Mr. Font had a conflict due to a hearing in another case and was therefore unavailable to attend the June 2, 2017 hearing on the Court’s Order to Show Cause. Accordingly, on May 31, 2017, the Court re-noticed the hearing on the Order to Show Cause for 8:30 a.m. on June 2, 2017 to accommodate Mr. Font.
8. On June 1, 2017, Defendant filed its response to the Court’s Order to Show Cause in which it claimed that it did not receive the February 7, 2017 Order of Referral to Mediation in the first place and that it did not think Plaintiff attempted to coordinate the mediation. This representation is at odds with the Mediator’s Report filed on May 24, 2017 in which Ms. Julian stated Mr. Font and Mr. Blose sent her “an email after 5pm on 5/19/17 that they would not be appearing as they had a Motion and Order Substituting them as new counsel of record.”
9. On June 2, 2017, the Court entered an Order Approving Stipulation for Substitution of Counsel in which Font & Nelson was substituted as counsel for Vernis & Bowling. That same day, the Court executed a separate Order on Defendant’s Motion for Substitution of Law Firm and Order to Show Cause in which the Court dispensed with the Order to Show Cause, required the parties to coordinate mediation within 6 business days and compelled Defendant to pay for the mediation.
10. On December 12, 2017, the Court entered an Order Setting Jury Trial by which the calendar call was scheduled for April 20, 2018 and the trial period was to commence on April 23, 2018.
11. On December 28, 2017, Font & Nelson moved to withdraw from further representation of Defendant and stated that “. . .due to the fact that our practice specializes in the representation of insured(s), we are no longer able to represent the Defendant in this matter.” (Def. Mot. to Withdraw, ¶ 3). Font & Nelson further stated that “[t]o ensure that the Defendant’s interests will be represented at all times during this transition, Mr. Font has offered to find substitution of counsel if same is needed by the Defendant in this case to ensure that the Defendant will not suffer any prejudice.” (Def. Mot. to Withdraw, ¶ 4).
12. Font & Nelson had not set its motion to withdraw for hearing as of January 22, 2018, the date on which this Court entered an Order Referring Case to Arbitration.
13. Font & Nelson had not set its motion to withdraw for hearing as of February 12, 2018, the date on which the Court entered its Uniform Order Setting Pretrial Deadlines and Related Requirements. Specifically, the discovery cut-off was established to be March 29, 2018; the deadlines to disclose expert witnesses were established to be March 14, 2018 for Plaintiff and March 26, 2018 for Defendant; and the Joint Pretrial Stipulation was due on April 13, 2018.
14. Font & Nelson had not set its motion to withdraw for hearing as of February 20, 2018, the date on which arbitrator Julio Gonzalez filed and served the Notice of Arbitration Hearing to take place on March 5, 2018.
15. On February 21, 2017, Plaintiff served discovery seeking information regarding the expert witnesses Defendant intended to call at trial; specifically, Plaintiff served “IME/Peer Review” Interrogatories and a Supplemental Request for Production Re: 1099 Production (the “Expert Discovery”).
16. Meanwhile, Font & Nelson still had not set its motion to withdraw for hearing as of February 27, 2017. In an effort to advance this case, on February 27, 2017, Plaintiff’s counsel noticed Font & Nelson’s Motion to Withdraw for a hearing to take place on March 20, 2018.
17. On March 5, 2017, the arbitration took place before Julio Gonzalez. Emilio Stillo appeared as Plaintiff’s counsel and Frantz Nelson appeared as defense counsel. Although the arbitrator’s decision is under seal, the docket reflects that Defendant moved for a trial de novo on March 20, 2017.
18. On March 20, 2018, the Court held a hearing on Font & Nelson’s motion to withdraw and entered an order: (a) granting the motion; (b) requiring Defendant to obtain new counsel within 15 days (i.e., by April 5, 2018); (c) noting that “[f]ormer counsel [Font & Nelson] represents that Vernis & Bowling will handle this file but no appearance has been filed to date.”; (d) stating that new counsel will file verified responses to the expert interrogatories and responses to the expert document requests within 30 days; (e) stating that new counsel will file a notice of appearance within 15 days or suffer default without further hearing; and (f) the firm of Jose Font is responsible for providing this order to Defendant and new counsel.
19. Defendant did not obtain “new counsel” within 15 days, in violation of the March 20, 2018 order. Instead, Jose Font filed his Notice of Appearance as counsel for Defendant on April 3, 2018.
20. On April 11, 2018, Plaintiff filed and served a Motion for Default and to Enforce Court Order of March 20, 2018. The motion states that although this Court required “new” counsel to appear by April 4, 2018, Mr. Font noticed an appearance on April 3, 2018.
21. On April 12, 2018, the Court entered an Order of Default based on Defendant’s failure to comply with the March 20, 2018 order.
22. Meanwhile, as of April 19, 2018, Defendant had neither responded to the Expert Discovery nor sought an extension of time to respond, in violation of this Court’s March 20, 2018 order. Accordingly, Plaintiff moved to enforce the March 20, 2018 order.
23. On April 20, 2017, this Court heard argument on Plaintiff’s Motion to Enforce the Court’s March 20, 2018 order, and entered an order: (a) compelling Defendant to respond to the Expert Discovery within 15 days; (b) sanctioning Defendant for its failure to comply with the March 20, 2018 order in the form of attorneys’ fees to be determined at a later date; (c) requiring the parties to submit a joint pretrial stipulation by July 20, 2018; (d) referring the case to mediation to take place within 45 days; (e) requiring Defendant to file “evidence of consolidation” within 30 days; (f) continuing the April 23, 2018 trial; and (g) vacating the default per stipulation of the parties.
24. On April 20, 2018, the Court also entered an Order Referring Case to Mediation, which the gave the parties 15 days to stipulate to the designation of a mediator failing which Ms. Phyllis Pritcher was to be appointed by the Court. The Order Referring Case to Mediation further required the mediation to be held within 45 days and specified that “[t]he appearance of all parties, and their counsel, in person is MANDATORY” (emphasis in original).
25. On April 20, 2018, the Court also entered an Order Setting Jury Trial in which the Court scheduled calendar call to take place on September 21, 2018 and the trial to take place on September 24, 2018.
26. As of May 9, 2018, Defendant still had not responded to the Expert Discovery or sought an extension of time, in violation of the Court’s April 20, 2018 order.
27. On May 9, 2018, Plaintiff moved to enforce the order dated April 20, 2018 regarding the Expert Discovery.
28. On May 14, 2018, mediator Phyllis Pritcher filed and served Formal Notice of Mediation and Procedures which scheduled the court-ordered mediation to take place on May 18, 2018 at 10:30a.m. in Fort Lauderdale. The notice reiterated that “[t]he appearance of all parties, and their counsel, if represented by counsel, is MANDATORY (emphasis in original).
29. On May 18, 2018 at 10:30a.m., Plaintiff’s corporate representative appeared at Ms. Pritcher’s office with Plaintiff’s counsel. Neither Defendant nor defense counsel appeared, in violation of the Order of Referral to Mediation.
30. On May 21, 2018, the deadline for Defendant to file “evidence of consolidation”) under April 20, 2018 order expired and Defendant failed to comply.
31. On May 22, 2018, the Court sua sponte issued an Order to Show Cause commanding Jose Font to personally appear before the Court on June 8, 2018 at 3:00 p.m. “to show cause why your pleadings should not be stricken, a default should not be entered, and/or sanctions imposed for not complying with the Mediation Order dated April 20, 2018 and failing to appear at mediation on May 18, 2018.”
32. On May 29, 2018, Plaintiff amended its motion to enforce the April 20, 2018 order to reflect Defendant’s violation the April 20, 2018 Mediation Order.
33. On May 30, 2018, with the Court’s approval, Plaintiff noticed its amended motion to strike Defendant’s pleadings for an “add-on” hearing to take place at the same time as the hearing on the Court’s Order to Show Cause.
34. On May 31, 2018, Ms. Pritcher filed her Mediator’s Report in which she stated, “[t]he Defendant did NOT attend Mediation, and it was not settled. The Plaintiff’s attorney and the Dr. did appear and we waited for the defendant’s attorney for a reasonable amount of time.” (emphasis in original)
35. As of June 8, 2016, Defendant still had not responded to the Expert Discovery.
36. On June 8, 2016 at 2:24 p.m. (36 minutes prior to the hearing on the Court’s Order to Show Cause and Plaintiff’s amended motion to strike Defendant’s pleadings), Defendant filed “Defendant, National Specialty Insurance Company’s Response to the Court’s Order to Show Cause for Failure to Appear at Mediation, Response to Plaintiff’s Motion to Strike the Pleadings and Motion for Continuance so as to Allow for Evidentiary Hearing.” This document will be referenced as “Defendant’s Response.”
37. In Defendant’s Response, Defendant asserted that “due to a clerical error by a member of staff within undersigned counsel’s office, the mediation event was not properly calendared. As a result, the Defendant and undersigned counsel missed the mediation.” Defendant further claimed that “[f]ailure to attend the mediation was due to a clerical oversight and was not the result of a willful disregard for this Honorable Court’s order. In addition, the error/oversight is certainly not attributable to the client.” (Def.’s Resp., ¶¶ 3-4).
38. Defendant represented in Defendant’s Response that “[i]t is important to note that the initial discovery order was entered by the Court, ex parte, subsequent to Defendant’s counsel’s withdrawal from the case and during the time period in which the case was stayed, as to allow the Defendant to obtain new counsel.” (Def.’s Resp., ¶13). This representation is plainly false.
39. The record reveals that no discovery order was entered ex parte in this case. Rather, the March 20, 2018 order granting Font & Nelson’s motion to withdraw also required Defendant to file responses to the Expert Discovery within 30 days after new counsel appeared within 15 days. And Mr. Font’s associate2 who attended the March 20, 2018 hearing represented to the Court that Vernis & Bowling “will handle this file but” had just not yet filed its appearance. This representation was false. More troubling, however, is that neither Vernis & Bowling nor “new” counsel appeared within the timeframe ordered by the Court. Instead, Mr. Font filed a Notice of Appearance on April 3, 2018 (!). This, by itself, amplifies the gamesmanship and delays caused by Defendant and its counsel.
40. At the June 8, 2018 hearing on the Court’s Order to Show Cause and Plaintiff’s amended motion to strike Defendant’s pleadings, Mr. Font represented to the Court that he “had an agreement with Mr. Stillo”3 under which Mr. Stillo was to speak to another attorney who had represented a different party in a different case4 to get a general sense of what had transpired over the course of this litigation that was first commenced over a decade ago. And then, if Mr. Stillo still needed additional information, the alleged “agreement” was that Mr. Stillo would visit Mr. Font’s office to review “tens of thousands” of pages of transcripts with Mr. Font’s password from U.S. Legal (a local court reporting firm).
41. At the June 8, 2018 hearing, Mr. Font also represented that:
· Mr. Stillo did not know that prior counsel for Plaintiff did not want any further discovery and allegedly agreed ten years ago that there would be no further discovery;
· When the parties were last before the Court on April 20, 2018, Mr. Font said he was prepared for trial and that Mr. Stillo had no understanding of the file (even though Mr. Stillo arbitrated the case approximately one month prior and it was the Defendant who moved for trial de novo);
· Mr. Stillo never told Mr. Font what discovery was needed (even though Mr. Stillo served the Expert Discovery months prior to which responses were not served by Defendant despite multiple court orders compelling the responses);
· Attorney Frantz Nelson was assigned the day-to-day tasks involved in defending the case;
· Mr. Nelson suffered from back problems and was in urgent care on the day before the June 8, 2018 hearing and was therefore unable to attend;
· Mr. Nelson’s assistant recently left the firm;
· Mr. Nelson was not aware of Plaintiff’s motion to strike Defendant’s pleadings because his secretary received it and did not give it to him;
· The “order” compelling Defendant to respond to the Expert Discovery was improperly entered because Mr. Font had withdrawn;
· There have been multiple mediations, pretrial disclosures, hundreds of interrogatories over the course of the prior decade;
· Plaintiff improperly procured the ex parte orders compelling responses to the Expert Discovery knowing that defense counsel was attempting to withdraw;
· Mr. Font’s office made clerical errors;
· When pressed by the Court if responses to the Expert Discovery had been filed as of the day of the hearing (June 8, 2018), Mr. Font responded, “I don’t file things that I don’t have to file” (emphasis added).
· “All we have is an ex parte order that was entered when there was no counsel of record which by default is a corporation you can’t ex parte a corporation when you know they have no counsel.”
42. Even if all of these representations were true (even the representations that contradict themselves), the fact remains that Defendant still had not bothered to respond to the Expert Discovery or comply with the orders requiring responses to be served. Defendant did not move for extensions of time or for relief from the orders or even serve objections to the extent Defendant believed the orders were somehow erroneous. Instead, Defendant did not respond because Mr. Font does not “file things that [he does not] have to file.”
43. At the June 8, 2018 hearing, the following exchange took place between the Court and Mr. Font:
THE COURT: Okay. I just want to also remind the parties that there was a previous mediation5 that was with Joyce Julianne (phonetic) and we had an Order to Show Cause and on that case, because you didn’t show up at the mediation, do you remember that, and the Plaintiff showed up?
MR. FONT: Yes, and we went to the mediation thereafter and I did agree to pay and I —
THE COURT: Okay. But I want you to know that this was another issue and you told me before it was a clerical issue on that one.
MR. FONT: And I understand that, Judge, and frankly I didn’t even recall that we had gone to mediation. When I spoke to the client is when I got, you know —
THE COURT: Okay.
MR. FONT: — brought back to that event, but I had 70 cases on a trial docket that time and I had a hurricane that came through my office. My office is right down the street. There was six feet of water. It was closed for three weeks. I mean, I can talk about that event as well but I think the Court ultimately understood it then so it wasn’t, you know —
THE COURT: Okay.
MR. FONT: — every situation stands on its own two feet. And, yes, being closed down for three weeks with 60 to 70 cases on a trial docket and a vast number of appellate arguments and briefs and so forth, yes, my office was not functioning when I had three weeks of no ability to access my office.
THE COURT: Okay.
MR. FONT: Or access my records. I had to work out of the Starbucks on Las Olas for a few weeks and it was very difficult, to say the least.
THE COURT: Okay. All right. Anything else?
44. Finally, at the June 8, 2018 hearing, there was a dispute as to which experts Defendant intended to call at the trial that was scheduled to take place imminently. Mr. Font argued that Defendant could not respond to the Expert Discovery because Dr. Glatzer — one of the defense experts — had died. Plaintiff’s counsel, however, expressed concern because Mr. Font had suggested in the hallway outside of the courtroom that there was at least one other medical expert in addition to Dr. Glatzer:
MR. PHILLIPS: Just as a point of case management for Your Honor. I’m not sure how the Court’s going to rule but here’s the thing. These cases, as old as they are, we are finally in a trial posture. And under the Court’s April 20th, 2018 Order the parties are required to submit a Joint Pretrial Stipulation by July 20th; that is next month. While Dr. Glaser (sic), who apparently was the doctor for the Defense who testified at the MRI trial, however long ago that was, that did not involve the two cases that we’re here for today, well, I understand Mr. Font doesn’t have, you know, Frankensteinian powers to, you know, breathe life back into the dead, but I do understand this. There are other experts that have been disclosed by the Defense. Mr. Font, out in the hallway couldn’t recall, but as we stand here right now, who those folks are. But those are other experts that were disclosed whenever they were earlier this year that weren’t, as far as I know, around back then. The discovery for impeachment materials, financial materials, you know, whatever these newer experts have anything to do with, what their opinions are, the facts and basis, basic expert discovery, well, we don’t have responses to that. And we can’t depose experts before we get their, you know, documentary responses so because we would need to use that at a deposition. So here’s the thing. If we are going to stay on this trial track that we’re on, we are, you know, kind of put into a corner here. And the thought of well, continuing this, you know, further for whatever other proceedings, you know, on a 2005 and 2007 case, that is, you know, a little nauseating to me just on general principle. But I wanted the Court to be aware of where we were in terms of trial juxtaposition and, you know, avoiding, you know, future prejudice and delay. And I can imagine that the doctor that showed up at mediation, you know, however many weeks ago, you know, looking for some kind of finality to the cases that just won’t ever end. I’m glad I’m not going to be the one that has to call him up and say hey, guess what, we’re delayed more. You know, that’s —
MR. FONT: There are no new witnesses, Judge, I can assure you —
THE COURT: Pardon me?
MR. FONT: There are no new experts, there are no new witnesses, there is no one who has not been cross examined to death or has been subjected to all discovery in the world.
MR. PHILLIPS: Oh, did I misunderstand you in the hallway?
MR. FONT: No, no, you misunderstood the fact that there was a chiro expert and there was Dr. Glaser (sic), who is an orthopedic, okay? Both of those individuals have been subjected to all the discovery in the world, to Chris Boyer’s (sic) cross-examination, to two trials and so forth. There will be no new witnesses, I can assure you that, Judge. There’s no new discovery. Again, it comes down to one simple thing: has Mr. Stillo and Mr. Phillips asked Mr. Morgan did they represent that no further discovery, in fact, a motion no more discovery or did they, in fact, represent we’re ready to proceed to trial? Did they, in fact, agree that this case can they agree that these cases were consolidated for purposes of discovery? Can they even provide a word to this Court of what it is that we have not produced, what we have not disclosed, what I have not offered to do? Mr. Phillips, if he wants to resolve the issue he can do what I told in open court to Mr. Stillo and I will tell the Court, I will make myself available at any point in time and I will help him get all the documents because I’m sure I spent — I probably got more than the other side.
45. As was later revealed at the September 28, 2018 hearing, Mr. Stillo explained that the “chiro expert” (Dr. Joseph Costello) and an additional expert (an accident reconstruction expert) were apparently still alive. Among the information sought in the Expert Discovery involved financial information to establish potential bias of these living experts and the vendors from whom Dr. Costello obtains work performing compulsory medical examinations and peer review studies. Further, information was sought as to the current financial connection between the vendor who selected Dr. Glatzer and the Defendant as well as other financial bias discovery. Mr. Stillo also testified that the Expert Discovery was specifically designed to expose what amounts to a rigged system in the selection process of both Dr. Glatzer and Dr. Costello. But none of that matters at this point; the issue before the Court is the extent of the sanctions to be imposed for the violation of multiple orders entered in 2018 — not whether there was a genuine need for responses in Mr. Font’s opinion.
46. As of June 22, 2018, Defendant still had responded to the Expert Discovery, but Mr. Nelson did send Plaintiff’s counsel a Dropbox link to a file containing 518 disorganized and scattered documents.
47. On June 25, 2018, the Court entered an Order Deferring on the Extent of Sanctions to be Imposed Against Defendant Pending Evidentiary Hearing. In that order, the Court held that:
sanctions are warranted for Defendant’s repeated violations of various court orders and failure to appear at two court-ordered mediations. Although a review of the case file and docket sheet establishes the violation of multiple orders that still have not been cured, the Court determines that an evidentiary hearing will be held to determine the extent of the sanctions that will be imposed including, potentially, the striking of Defendant’s pleadings and the entry of a default.
48. The Court further ruled:
Jose Font, Esquire, Frantz Nelson, Esquire, and Defendant’s corporate representative shall personally appear at a specially set two-hour evidentiary hearing to explain, under oath, Defendant’s position regarding its repeated and continued violation of the discovery rules and prior orders of this Court so it can be determined (1) whether the gross disobedience on the part of the Defendant and/or its counsel was and is willful, deliberate, or contumacious, rather than excusable neglect or inexperience; (2) whether the previously imposed sanctions on the Defendant, coupled with the imposition of additional monetary sanctions, present a viable alternative to the most severe of sanctions (striking Defendant’s pleadings and entering a default); (3) whether the Defendant was personally involved in the chronic display of disobedience; (4) the extent to which the repeated delays resulting from the disobedience prejudiced the Plaintiff through undue expense, loss of evidence, or in some other fashion; (5) whether the Defendant and/or its counsel are able to provide reasonable justification for noncompliance; and (6) the extent to which the repeated delays created and still create significant problems of judicial administration. See, Ham v. Dunmire, 891 So. 2d 492, 496 (Fla. 2004); Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993); Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983).
(emphasis in original).
49. On or about August 17, 2018, over two months after Mr. Font vociferously announced to the Court that there was only one expert besides Dr. Glatzer (Dr. Costello, the “chiro expert” whose name Mr. Font could not recall at the June 8, 2018 hearing), Mr. Nelson emailed Plaintiff’s counsel and attached a proposed Joint Pretrial Stipulation in which Defendant disclosed the expert witnesses it intended to call at trial:
Expert Witness List
1. Richard L. Glatzer, M.D. (deceased, formerly of 8525 S.W. 92nd Street, Building C, Suite 11-A, Miami, FL, 33156): Dr. Glatzer was a specialist in orthopedics and previously testified both in deposition and at trial as to the reasonableness, relatedness and medical necessity of the treatment at issue as well as medical record and billing practices of Physician’s Pain & Rehab Center, Inc. as well as Pain Management Group of S. Florida, Inc.
2. Dr. Joseph Costello, D.C.: Dr. Costello is a licensed chiropractic physician and previously testified at trial as to the reasonableness, relatedness and medical necessity of the treatment received by Charles Dor as well as medical record and billing practices of Physician’s Pain & Rehab Center, Inc. as well as Pain Management Group of S. Florida, Inc.
3. Enrique Barrio; Vera Motors, 300 S. University Drive, Pembroke Pines, FL, 33025: Mr. Barrio is a licensed adjuster and has extensive experience evaluating cause and the amount of damages that occur in motor vehicle accidents. Based upon his inspection of the Defendant’s Insured’s vehicle and the statements made to him by the Defendant’s Insured, Mr. John Lubin, Mr. Barrio will testify that in his expert opinion, the damage to the Insured’s rear bumper was not caused by a rear impact as alleged by the Insured. Furthermore, he will testify that the damage to the Insured’s rear bumper was caused by making impact with objects at the floor level and that the force causing the damage was front to back, as opposed to back to front as alleged by the Insured.
4. The Defendant reserves the right to supplement this expert witness list.
50. The evidentiary hearing on the extent of sanctions to be imposed against Defendant took place over the course of three sessions conducted on August 29, 2018, August 31, 2018 and September 28, 2018.
51. As of August 29, 2018, Defendant still had not responded to the Expert Discovery.
52. On August 29, 2018, Mr. Font and Mr. Nelson personally appeared for the first installment of the evidentiary hearing. While the June 25, 2018 order required Defendant’s corporate representative to appear at the August 29, 2018 hearing, the representative who appeared was not even employed by National Specialty Insurance Company. Specifically, the Defendant’s “corporate representative,” Ms. Brigid Napier, is an attorney for Windhaven Insurance Company who did not know anything about the case until the day before the hearing when she reviewed the docket sheet on the Broward County Clerk of Court’s website.6 In any event, it was obvious that Ms. Napier was unable to “explain, under oath, Defendant’s position regarding its repeated and continued violation of the discovery rules and prior orders of this Court. Although Defendant may have technically complied with the letter of the Court’s June 25, 2018 Order by bringing a human being who purported to be designated by National Specialty Insurance Company to appear as its corporate representative, her lack of knowledge and understanding about what had previously transpired in this case was in utter violation of the spirit of the order.
53. At the evidentiary hearing, when pressed about Mr. Font’s representation on June 8, 2018 that there was only one expert in addition to Dr. Glazter (the “chiro expert”) in light of the expert witness list on the Joint Pretrial Stipulation Mr. Nelson emailed to Plaintiff’s counsel on August 17, 2018, both Mr. Font and Mr. Nelson suggested that it was yet another mistake because Mr. Nelson did not know much about the case. This representation, however, is curious at best because Mr. Nelson testified that he handled the arbitration on March 5, 2018 in the companion case7 and ultimately moved for a trial de novo.
54. Mr. Stillo’s testimony at the evidentiary hearing contradicted with Mr. Font’s testimony about a purported agreement under which Mr. Stillo would visit Mr. Font’s office to review “tens of thousands” of pages of transcripts and other materials if Mr. Stillo’s questions about what discovery was had a decade ago were not answered by Mr. Boyar. Mr. Font alleged that such an agreement was in place, and Mr. Stillo testified that there was no such “agreement.” Mr. Stillo testified that when he needs information about experts from an adversary in litigation, he does what he did in this case — serve expert discovery. The Court finds Mr. Stillo’s testimony to be credible.
55. The defense ultimately conceded it did not serve written responses to the Expert Discovery but argued it did not have to, notwithstanding the number of court orders that had compelled Defendant to do so. Rather, Defendant focused on the same excuses articulated at the June 8, 2018 hearing. This time, however, Mr. Font also described some sort of vast conspiracy of lawyers who practice first-party property insurance litigation who are out to get him and even referenced a recent Third District opinion involving these allegations.8
56. The only relevant and undisputed fact that remains is that Defendant still has not responded to the Expert Discovery and remains to this day in violation of each of the orders described herein. When called out on this behavior, Defendant’s counsel brazenly admitted that nothing was filed in response to the Expert Discovery — notwithstanding the multiple orders compelling Defendant to do so — because, “I don’t file things that I don’t have to file.”
57. In other words, Defendant deliberately, contumaciously and callously disregarded this Court’s authority and admittedly expressed gross indifference to at least six separate orders of this Court.
Conclusions of Law
In Mercer v. Raine, 443 So.2d 944, 946 (Fla. 1983), the Florida Supreme Court held it was proper to strike a party’s pleadings for violating a single discovery order. There, the Florida Supreme Court held that striking of pleadings was justified by “deliberate and contumacious disregard of the court’s authority . . . bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” See, also, Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994).
In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1994), the Florida Supreme Court explained the analysis trial judges should employ in determining whether to enter a default as a sanction. Although Kozel dealt with dismissals with prejudice as a sanction, the effect of a default as a sanction is the same: either action disposes of the case. A-1 Mobile MRI, Inc. (a/a/o Marcos Marmol) v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 387d (Broward Cty. Ct. 2005). In Kozel, the Florida Supreme Court set forth principles for addressing the matter, and provided guidelines for determining whether such a sanction is appropriate. These principles include whether the purpose of the Florida Rules of Civil Procedure is being upheld, i.e., “to encourage the orderly movement of litigation.” Another principle is whether “a sanction less severe than [default] appears to be a viable alternative.” Kozel, 629 So.2d at 818.
In determining what, if any, sanctions are appropriate for discovery infractions, Kozel requires the Court to consider the following factors: (1) whether the attorney’s conduct was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; (2) whether the attorney has been previously sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; (5) whether the attorney offered reasonable justification for noncompliance; and (6) whether the delay creates significant problems of judicial administration. Ham v. Dunmire, 891 So. 2d 492, 496 (Fla. 2004) [30 Fla. L. Weekly S6a]. Kozel v. Ostendorf, 629 So. 2d at 818 (Fla. 1993).
Whether the Attorney’s Conduct was Willful, Deliberate orContumacious Rather Than an Act of Neglect or Inexperience
The findings of fact detailed above plainly demonstrate that defense counsel’s conduct was willful, deliberate and contumacious. Importantly, Defendant steadfastly refused to make even belated attempts to comply with these orders which, to this day, remain in violation.
Defendant’s counsel freely explained that “I don’t file things that I don’t have to file.” Defendant apparently believes that court orders are mere suggestions rather than dictates with which parties must comply. Although Defendant clearly made its point that it did not agree with the orders or thinks this Court’s rulings were incorrect, counsel is bound by them and must seek his remedy on appeal. MR Services I, Inc. (a/a/o Juliene Dettman) v. State Farm Mut. Auto. Ins. Co., Order Granting Plaintiff’s Motion for Sanctions for Mistrial, Case No. 12-16880 COCE 53 (Broward Cty. Ct., Aug. 20, 2014)(Lee, J.). “Indeed, failure to comply with a court order can be deemed contempt of court, even if the order is ultimately determined to be erroneous on appeal.” Id., citing, Carnival Corp. v. Beverly, 744 So.2d 489, 494 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D2154c]: Rubin v. State, 490 So.2d 1001, 1003 (Fla. 3d DCA 1986).
Defense counsel are both experienced attorneys who testified at length about the law firm they formed, the substantial expenses they incur on a monthly basis employing a large staff and associate attorneys, the thousands of lawsuits they have recently filed and the important federal and appellate matters they routinely handle. The matters addressed in this order are obviously not the result of simple neglect and inexperience. These lawyers know better.
Whether the Attorney Has Previously Been Sanctioned
Defendant has previously been sanctioned, as identified above. Apparently, an award of monetary sanctions is insufficient to inspire Defendant to comply with the orders (as of this date, Defendant still had not complied). Although striking a party’s pleadings is the most severe of all sanctions and should only be employed as a sanction of last resort, Defendant has made it clear that any less severe sanction is simply ineffective to the point of futility.
Whether the Client Was Personally Involvedin the Act of Disobedience
Defendant was directly involved in the acts of disobedience, as discussed above. First, there have been too many orders that have been violated for Defendant to pretend it is ignorant of the sanctionable conduct employed by defense counsel. See, e.g., Estrada v. Southern Fidelity Ins. Co., Order Granting Plaintiff’s Emergency Omnibus Motion to Compel the Appearance of the Corporate Representative at the October 11, 2017 Scheduled Deposition and Compel Compliance with this Court’s Order Granting Plaintiff’s Motion to Compel Better Answers to Plaintiff’s First Set of Interrogatories and for Sanctions, Case No. 15-020222 CA 27 (Miami-Dade Cir. Ct., Oct. 24, 2017)(Rodriguez, J.). But to be completely sure, the Court agreed to hold an evidentiary hearing upon Mr. Font’s request so it could hear directly from Defendant’s corporate representative.
Defendant’s corporate representative who testified at the August 29, 2018 hearing is Brigid Napier, Esquire, an attorney for Windhaven Insurance Company. Ms. Napier testified that although she had no personal knowledge of the case prior to the day before the hearing, she confirmed that she reviewed the docket on August 28, 2018 which revealed Defendant’s non-compliance with the multiple orders. Ms. Napier testified there was another “corporate representative” of Defendant with actual knowledge about this case (another Windhaven lawyer named Stephen Simeonidis, Esquire). Although the August 29, 2018 hearing had been noticed since July 9, 2018, Mr. Simeonidis did not appear because he had gone to Europe just days before the hearing commenced. Regardless, Defendant had not attempted to comply with the orders since the Court ordered Defendant’s representative to appear on June 25, 2018. That, by itself, displays that Defendant was personally involved in the disobedience.
Whether the Delay Prejudiced the Opposing Party ThroughUndue Expense, Loss of Evidence, or In Some Other Fashion
As a county court case originally filed under the Small Claims Rules over a decade ago, this action involves a relatively small amount in dispute. Plaintiff has incurred a substantial amount of time and expense in simply trying to obtain information requested and that it has a right to obtain in order to establish its claim at trial. At this point in this particular case, the Defendant’s actions have caused the Plaintiff to incur substantially more in attorneys’ fees than the claim itself. For these reasons, the chronic delays caused by the defense has prejudiced the Plaintiff. Xtreme Chiropractic & Rehab, Inc. (a/a/o Oscar Hincapie) v. Geico Ind. Co., 23 Fla. L. Weekly Supp. 964b (Broward Cty. Ct. 2016)(Lee, J.); Dr. Vicki Lee, LLC, d/b/a Chiropractic Solutions of Pensacola (a/a/o Daniel Montemayor) v. Geico Gen. Ins. Co., Order Granting Plaintiff’s Motion to Strike Defendant’s Pleadings and for a Default, Case No. CONO 16-005089 (70)(Fry, J.).
Moreover, the gamesmanship employed by the defense in obscuring the identification of the expert witnesses it intended to call at trial while in violation of orders regarding the Expert Discovery has equally prejudiced Plaintiff. As Mr. Stillo testified at the hearing, even though Dr. Glatzer was dead, Mr. Nelson identified two additional expert witnesses (Dr. Costello and Mr. Barrio) months after the Expert Discovery was served and months after the deadlines to respond were established and re-established by orders from this Court. No information about these experts has been produced in response to the Expert Discovery, including information that could not possibly have been produced ten years ago (such as updated financial bias information and information regarding vendors).Whether the Attorney Offered Reasonable Justificationfor Noncompliance
In Xtreme Chiropractic & Rehab, Inc. (a/a/o Oscar Hincapie) v. Geico Ind. Co., 23 Fla. L. Weekly Supp. 964b (Broward Cty. Ct. 2016)(Lee, J.), the trial court struck Geico’s pleadings and entered a default against Geico for violating the discovery rules and various court orders. There, the court noted that “[t]he Defendant has offered no credible explanation as to why it has continually failed to comply with this Court’s Orders or the rules of discovery.” As noted above, the Defendant in this case was likewise unable to articulate any sufficient justification for its noncompliance.
Instead, the defense offered nothing more than excuses, confusion and obfuscation in an obvious effort to distract attention away from the issue before the Court — the extent of the sanctions to be imposed by Defendant’s non-compliance with multiple orders. Even if Plaintiff acted with nefarious intent by seeking unnecessary discovery or attempting to secure a “cheap win” on a difficult case, it does not matter. The issue is why Defendant did not respond to these orders; not Plaintiff’s counsel’s motives in serving the discovery and moving to compel responses. All Defendant had to do was respond to the Expert Discovery either by referring Plaintiff to information previously produced or objecting to requests it deemed objectionable for whatever reason. Defendant failed to do so. Defendant could have sought extensions of time or relief from the orders. Defendant failed to do so. Once again, at the June 8, 2018 hearing when this Court directly asked defense counsel if responses to the Expert Discovery had been filed, Mr. Font responded, “I don’t file things that I don’t have to file” (emphasis added). This response is actually the opposite of reasonable explanation for non-compliance; it is evidence that Defendant’s noncompliance was willful and contumacious.
Whether the Delay Creates Significant Problemsof Judicial Administration
This is a civil case involving unpaid PIP benefits, with a recommended resolution standard of eighteen months. Fla. Jud. R. Admin. 2.250(a)(1)(b). In the instant case, the matter has been pending for 4,288 days. While the length of time this case has lingered is not entirely Defendant’s fault (for example, an issue went up on appeal and was remanded back), Defendant failed to comply with orders involving the Expert Discovery, mediation and other issues were executed this year. In other words, the Defendant’s unilateral lack of diligence has unduly delayed the resolution of this case.
As in Xtreme Chiropractic, this Court “finds that the Defendant’s conduct has created significant problems of judicial administration . . . considering that a number of motions this Court has had to consider, as well as four lengthy special set hearings, for simply one of the numerous PIP cases this Court has pending in its division.” There are thousands of PIP cases pending before this Court, and it is no secret that delays like those here has contributed to the backlog that is, quite frankly, overwhelming the system.
Conclusion
After carefully considering the Kozel factors, this Court determines and so holds that the striking of Defendant’s pleadings is warranted. The Court further finds that no other sanction will suffice.
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff’s Motion to Strike Defendant’s Pleadings Sanctions is GRANTED. A default is hereby entered against the Defendant for the reasons cited above and pursuant to Kozel and Mercer. The Plaintiff shall submit a proposed Final Judgment noting the Plaintiff’s entitlement to recover its reasonable attorneys’ fees and costs in an amount to be determined in due course.
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1By order dated June 25, 2018, this Court held:
that sanctions are warranted for Defendant’s repeated violations of various court orders and failure to appear at two court-ordered mediations. Although a review of the case file and docket sheet establishes the violation of multiple orders that still have not been cured, the Court determines that an evidentiary hearing will be held to determine the extent of the sanctions that will be imposed including, potentially, the striking of Defendant’s pleadings and the entry of a default.
2The name of Mr. Font’s associate is illegible on the March 20, 2018 order allowing the withdrawal.
3Mr. Emilio Stillo is one of the attorneys representing Plaintiff.
4Three different medical providers separately sued National Specialty Insurance Company for unpaid personal injury protection (PIP) benefits arising out of treatment provided to Mr. Charles Dor from a car accident that took place over 13 years ago. Attorney Cris Boyar represented Mr. Dor’s MRI provider, and the other two cases were commenced by Mr. Dor’s chiropractic provider and his pain management provider. The three cases were consolidated, but the record was unclear as to whether the cases were consolidated for discovery purposes only or for purposes of discovery and trial. It is for this reason that the Court ordered Defendant to file “evidence of consolidation” within 30 days of April 20, 2018. Defendant failed to comply.
5The “previous mediation” is in addition to the mediation that was the subject of the Order to Show Cause.
6Ms. Napier testified that she stepped in to testify at the last minute because Stephen Simeonidis, Defendant’s corporate representative with knowledge regarding this case, chose to travel to Europe a few days before the hearing even though the hearing had been noticed months before. Mr. Simeonidis is likewise an in-house attorney for Windhaven Insurance Company.
7 Pain Management Group of South Florida, Inc. (a/a/o Charles Dor) v. National Specialty Ins. Co., Case No. COCE 07-000423 (51) [26 Fla. L. Weekly Supp. 675a].
8See, Raulerson v. Font, 2018 WL 3636525 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1746a].
