28 Fla. L. Weekly Supp. 354a
Online Reference: FLWSUPP 2804STEV
Insurance — Personal injury protection — Evidence — Medical provider’s motion in limine seeking to exclude documents insurer failed or refused to timely provide during pretrial discovery, including documents necessary to support insurer’s affirmative defense that it had fully complied with its contractual obligations regarding payments due under policy — Motion granted
WESTON MEDICAL REHAB & WELLNESS, a/a/o Damond Stevens, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-17-012609-Div. 53. August 15, 2018. Robert W. Lee, Judge. Counsel: Abdul-Sumi Dalal, Johnson | Dalal, Plantation, for Plaintiff. Jacob Berger, Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION IN LIMINETO EXCLUDE DOCUMENTSNOT PROVIDED DURING PRETRIAL DISCOVERY
THIS CAUSE came before the Court for consideration of the Plaintiff’s Motion in Limine to Exclude Documents and Testimony Not Provided During Pretrial Discovery. The Court having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; and been sufficiently advised in the premises the Court finds as follows:
Introduction
1. Plaintiff seeks to preclude the introduction of certain evidence by Defendant, GEICO Indemnity Company (hereinafter “GEICO”), that was not produced or identified during pre-trial discovery. Plaintiff anticipates that Defendant will attempt to offer into evidence documents and witness testimony which it failed or refused to timely produce during the discovery phase.
2. At issue in this case is whether Defendant properly reimbursed the Plaintiff for the medically necessary services it provided. In its Answer and Affirmative Defenses, Defendant claims “no bills for PIP benefits are due and owing as Defendant paid Plaintiff’s bills at the full amount due pursuant to Fla. Stat. §627.736(5)(a)(2) and the new/amended policy of insurance issued by the Defendant.” Defendant’s Second Affirmative Defense alleges that Defendant “fully complied with its contractual obligations pursuant to the instant policy of insurance. Section II, Part 1, under the subsection titled ‘Payments We Will Make’ . . .”
Litigation History
3. On August 9, 2017, Plaintiff filed the instant action for Breach of Contract.
4. On October 16, 2017, Defendant filed its Answer and Affirmative Defenses alleging no amounts are due and owing.
5. Over the course of litigation, Plaintiff has made several attempts to obtain discovery materially related to Defendant’s Affirmative Defenses to no avail. More specifically: On October 9, 2017, Plaintiff served its initial discovery requests including its Request to Produce, Request for Admissions, and Interrogatories. Defendant did not respond.
6. On January 2, 2018, Plaintiff notified Defendant of its overdue discovery. Defendant did not respond.
7. On January 15, 2018, Plaintiff filed and served its Exparte Motion to Compel Defendant’s responses to Plaintiff’s discovery requests and on January 17, 2018, this Court entered an Order granting same. Pursuant to said Order, Defendant was to respond to Plaintiff’s discovery no later than January 29, 2018. Defendant did not respond.
8. On February 23, 2018, Plaintiff filed and serves its Exert Interrogatories. Defendant did not respond.
9. On April 2, 2018, Plaintiff notified Defendant of its overdue discovery responses. Defendant did not respond.
10. On April 18, 2018, Plaintiff filed and served its Exparte Motion to Compel Defendant’s Answers to Plaintiffs Expert Interrogatories and on April 19, 2018, this Court entered an Order granting same. Pursuant to said Order, Defendant was to respond to Plaintiff’s discovery no later than April 30, 2018. Defendant did not respond.
11. Plaintiff’s multiple production requests attempted to secure documents that would support Defendant’s allegations in its affirmative defenses. Defendant produced none.
12. On June 21, 2018, this Court entered an Order directing the Defendant to file a written response to Plaintiff’s Motion in Limine to Exclude Documents not Provided During Pretrial Discovery within ten (10) days. The Defendant once again violated this Court’s Order as it failed to timely file a written response.
13. On July 13, 2018, after approximately eight (8) months of being dilatory, the Defendant filed its responses to Plaintiff’s discovery requests, in violation of two previous Court Orders compelling same and this Court’s trial Order requiring all discovery to be completed no later than June 14, 2018.
14. Because of Defendant’s actions, or in this case inaction, Plaintiff has been forced to litigate this case, mediate this case, arbitrate this case, and now try this case without the benefit of the information concealed by the Defendant. Had Defendant disclosed the factual information Plaintiff would have been able to conduct its own investigation and prepare a response to Defendant’s affirmative defense.
Legal Analysis
15. The purpose of a motion in limine is generally to prevent the introduction of improper evidence.
16. Any attempt by the Defendant to utilize those documents it failed to produce during pretrial discovery at trial is contrary to the Florida Rules of Civil Procedure. There can be no justification for Defendant’s failure to disclose material evidence in support of its defense, and it should not be permitted to use them at trial. Fla.R. Civ. P. 1.380(b)(2)(B). Under Rule 1.380(b)(2)(B), discovery sanctions are also appropriate for failing to respond to interrogatories, including the exclusion of evidence. Because the documents were not provided to Plaintiff during discovery nor identified in response to Plaintiff’s interrogatories, this evidence and all related testimony should be excluded from at trial.
17. Florida law is resolute in its prevention to trial by ambush, through “surprise, trickery, bluff and legal gymnastics.” Northup v. Acken, 865 So.2d 1267, 1271 (Fla. 2004) [29 Fla. L. Weekly S37a]; Grinnell Corp. v. Palms 2100 Ocean Blvd., LTD., 924 So. 2d 887, 893 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D726a]. “[T]he primary purpose of pretrial discovery is twofold: (1) to ‘discover’ evidence relevant and pertinent to the triable issues pending before the court, and (2) if in written form to serve, of itself, as evidence at trial if otherwise admissible. . . . [S]uch discovery rules are to be liberally construed to accomplish their purpose.” Jones v. Seaboard Coast Line RR. Co., 297 So.2d 861, 863 (Fla. 2d DCA 1974). In that case, the Court observed that “litigation should no longer proceed as a game of “blind man’s bluff.” Id.
18. The Fourth District explained the significance of a Pretrial Order in Grau v. Branham:
The lawyers who make the opening statement must have a reasonably firm idea of what the evidence will show. Liberal rules of discovery assure this. Once the trial starts the lawyers are engaged in the unfolding of the evidence they have already collected. That is why there are discovery cutoffs. All the discovery rules and the extensive efforts of parties to discover the other party’s case would be for naught if one side were able to wait until after the trial started to establish key pieces of evidence such as what occurred in this case.
Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993)
19. In Grau, the Fourth District reversed and remanded the case for a new trial reasoning that “it is not enough that the defendant simply know what a witness may say before he testifies. . . prejudice also exists by the fact that appellant is unable to counter the offered testimony.” Grau, 626 So.2d at 1061
20. The issue in this case is similar to Grau in that this Court issued an Order indicating a discovery deadline for the parties. Prior to that date, Plaintiff made numerous attempts to secure the information necessary for trial. Defendant made none. Plaintiff moves this Court to follow the same reasoning the Fourth District held in Grau, stating: “. . . we strongly feel that once trial starts parties’ attorneys should be allowed to concentrate on the presentation of the evidence at hand. Neither side should be required to engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party.” Grau at1061
21. Similar discovery tactics, as utilized by the Defendant in this case, have been admonished by the Florida Supreme Court. In Bainter v. League of Women Voters of Fla., 150 So.3d 1115 (Fla. 2014) [39 Fla. L. Weekly S689a], the Court stated that: ‘We simply do not countenance and will not tolerate actions during litigation that are not forthright and 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.’” (citations omitted) (emphasis added)
22. This Court has also indicated that it would not tolerate such discovery tactics. My Clear View Windshield Repair, Inc. a/a/o Gina Holden v. Government Employees Insurance Company, 23 Fla. L. Weekly Supp. 648b (Brow. Cty.) (Lee, J. 2014). In that case, like the case at bar, Defendant shielded itself from discovery of material CASA., one information going to the heart of the case, and then one day prior to the Court’s imposed discovery deadline, attempted to interject that information to defeat Plaintiff’s case at trial. This Court, granted Plaintiff’s Motion in Limine preventing the Defendant from using the information at trial, reasoning that “[w]hen the Defendant refused to provide the discovery responses. . . it did so at its own peril and cannot now rightfully complain that it is barred from using its trade-secret shield as a sword.”
23. Similar to the Defendant in that case, GEICO failed and refused to timely provide Plaintiff with any discovery that would support or refute its claim. Thus, allowing Defendant to utilize this information, or any information derived from it, during trial is tantamount to a “trial by ambush.” See also Clear Vision Windshield Repair a/a/o Richard Voss v. Government Employees Insurance Company, Broward County Case No.: COCE-14-19856-Div. 53 (Brow. Cty.Ct.) (Lee, J., May, 2015) [23 Fla. L. Weekly Supp. 649a]
24. Because this evidence was not timely disclosed, notwithstanding Plaintiff’s tireless efforts, it should be excluded and Defendant should not be permitted to utilize its witnesses to elicit testimony regarding information it shielded from pretrial discovery. This is so because Defendant’s failure to produce the documents shielded it from the discovery of information that went to the very heart of the case. Defendant should not be allowed to attempt to utilize witness testimony to use that same information it refused to disclose to defeat Plaintiff’s case at trial. Defendant’s refusal to produce the production documents during pretrial discovery and/or any other factual information derived from said documents was at its own peril, and it should be barred from utilizing them as a shield and sword.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion in Limine to Exclude Documents Not Provided During Pretrial Discovery is GRANTED. The Defendant is barred from using any and all documents at summary judgment and trial.
