8 Fla. L. Weekly Supp. 204a
Insurance — Personal injury protection — Sanctions — Motion for sanctions based on conduct of insured’s treating physician in withholding, concealing or disposing of relevant evidence that would go to possible defense that insured’s injuries and treatment were not related to accident in issue — Sanctions granted — Motion for sanctions based on conduct of insured’s counsel in denying requests for admissions and forcing insurer to file motions for partial summary judgment to eliminate issues, and in circumventing rules of civil procedure by engaging in ex parte discovery with insurer’s retained expert — Sanctions granted — A trial court has inherent authority to sanction destruction of evidence, even in absence of order determining that evidence must be preserved or produced in discovery — Courts have inherent power to assess attorney’s fees against counsel for litigating in bad faith
GREGORY KURDIAN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 99-21968 COCE 53. December 7, 2000. William W. Herring, Judge. Counsel: Miriam Merlo, for Plaintiff. Steven R. Woods, Dickstein, Reynolds & Woods, Ft. Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SANCTIONSAND DISMISSING COMPLAINT WITH PREJUDICE
THIS CAUSE came before the Court on Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s, Motion For Sanctions, and the Court being advised in the premises, finds as follows:
1. Plaintiff, an insured, has sued Defendant alleging that it failed to pay certain personal injury protection (PIP) and Med Pay benefits in accordance with the applicable insurance policy and the Florida No-fault Statute. The Amended Complaint alleged that the Defendant wrongfullyfailed to pay bills from three of plaintiff’s medical providers. This Court has previously granted partial summary judgment in favor of theDefendant as to the bills of two of those providers. As of date of hearing on this motion, the bills of Stuart C. Gorenberg, D.C. are the only bills in issue.
CONDUCT OF PLAINTIFF’S TREATING PHYSICIAN
2. Dr. Gorenberg is the real party in interest in this case. Dr. Gorenberg’s bill is the only bill in issue left in this case and it is he who stands to gain by a favorable outcome for the Plaintiff, his former patient.
3. There is a definite pattern of Dr. Gorenberg withholding, concealing or disposing of relevant evidence that would go to a possible defense that the Plaintiff’s injuries and treatment were not related to the accident in issue. The conduct of Dr. Gorenberg was cumulative in nature. This pattern of conduct was an effort to knowingly and intentionally keep Defendant from obtaining information that would have been not only relevant, but very material to a relatedness defense. The specific conduct of Dr. Gorenberg is as follows:
a. Defense counsel served Dr. Gorenberg with a subpoena for his medical records pertaining to the plaintiff. The subpoena was comprehensive and specifically stated that the request was all inclusive and in no way limited to one incident. Dr. Gorenberg responded with a letter indicating that he was enclosing the records requested and that there were 34 pages enclosed. Subsequently, Defendant took Dr. Gorenberg’s deposition. Dr. Gorenberg appeared for deposition with a file pertaining to the plaintiff that was in excess of 200 pages. Included in the records not produced to Defendant in response to subpoena was an intake sheet from plaintiff’s first visit approximately two months after the subject accident. Although the record does mention an accident on the date of the subject accident (May 18, 1998), it also indicates that the problem was of an “unknown origin”. Moreover, the document also indicates that the patient had previous chiropractic care. None of the doctor’s other records refer to previous chiropractic care, much less the fact that the Plaintiff had previous chiropractic care with Dr. Gorenberg.
b. In Dr. Gorenberg’s deposition he was asked twice what his first date of treatment was for the Plaintiff. Both times he responded July 17, 1998, which was subsequent to the subject accident. These responses were incorrect. Only when asked directly if he ever treated the plaintiff prior to July 17, 1998 did he answer affirmatively.
c. When asked in deposition when he had previously treated the plaintiff, Dr. Gorenberg answered, “I believe in 1994 and also in 1993”.
d. Dr. Gorenberg was then asked about therecords of the plaintiff’s treatment prior to the subjectaccident. When asked if he still had the records in his office, Dr. Gorenberg testified: “no”. Later he indicated that the records were put away in archives and he was not even sure if they still existed. Dr. Gorenberg then mentioned the requirement to keep records. He then testified that he kept archive records in his office or his garage and that he did check his garage. Dr. Gorenberg then testified several times that he did not have the records of the prior treatment.
e. When asked what the treatment was for in 1993 (prior to the subject accident), Dr. Gorenberg testified: “I couldn’t tell you. I don’t have those records.” Dr. Gorenberg then testifiedthat he was treating the plaintiff for neck and mid-back injuries with respect to the May 1998 accident. When asked if he ever treated the plaintiff for a neck injury before, he testified that he could not answer because he did not have the records. His answer was the same with respect to the mid-back. Thus, Dr. Gorenberg testified that he could not answer defense counsel’s questions about whether he had ever treated the same parts of the plaintiff’s body before the subject accident because he no longer had the records.
4. Subsequent to Dr. Gorenberg’s deposition, Defendant took the deposition of the plaintiff, Dr. Gorenberg’s patient. The plaintiff testified that he probably saw Dr. Gorenberg within six to twelve months before the subject accident. When asked if it was certainly within four years of July 17, 1998 (his first post-accident visit) he testified: “yes”.
5. A chiropractor is required to keep records at least four years from the date of the patient’s last appointment. F.A.C. 59N-17.006, Retention of Chiropractic Records; Time Limitations.
6. The Plaintiff has the burden of proving Dr. Gorenberg’s bills for services to plaintiff were related to the subject accident. Florida Statute § 627.736. The Defendant has been irreparably prejudiced by the conduct of Dr. Gorenberg. For example, Defendant cannot review the records of the plaintiff’s prior chiropractic treatment with Dr. Gorenberg to compare them to the records, injuries, and treatment at issue in this case. Defense counsel could not examine Dr. Gorenberg at deposition as to the prior medical conditions and treatment of the plaintiff because Dr. Gorenberg no longer had the records. Defendant cannot provide the records of plaintiff’s prior chiropractic care to its chiropractic expert to have him consider whether the injuries being treated by Dr. Gorenberg were related to the subject accident or prior medical conditions. Defendant is essentially thwarted from investigating and developing the defense that any necessity for the plaintiff’s treatment arose from prior medical conditions rather than the subject accident.
7. Although Dr. Gorenberg is not the named plaintiff, he is the real party in interest. It is his bill that will be paid if the Plaintiff is successful. If Dr. Gorenberg is permitted to testify in support of the claim that his bills were reasonable, necessary and related to the subject accident, he may be permitted to profit from his own wrongdoing. “Our courts have often recognized and enforced the principle that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends.” Hanono v. Murphy, 723 So. 2d 892 (Fla. 3d DCA 1998). See also, Metropolitan Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999).
8. A trial court has the inherent authority to sanction the destruction of evidence, even in the absence of an order determining that evidence must be preserved or produced in discovery. Figgie International v. Alderman, 698 So. 2d 563 (Fla. 3d DCA 1997). See also, Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA 1996). In Delong v. A-Top Air Conditioning, 710 So. 2d 706 (Fla. 3d DCA 1998), the Court affirmed the dismissal of a personal injury action with prejudice, based on spoliation of evidence, where the defendants could not completely set forththeir defense without having the opportunity to examine and test evidence inadvertently lost by the plaintiff.
CONDUCT OF PLAINTIFF’S COUNSEL
9. One of the bills previously in issue in this case was that of IMI of Oakland Park. Defense counsel sent plaintiff a Request for Admissions asking plaintiff to admit or deny that “At no time prior to the filing of this lawsuit was a bill from IMI of Oakland Park ever submitted to State Farm for services rendered to you arising out of the subject automobile accident.” The Plaintiff responded, “Without knowledge.” This response was insufficient under R.C.P. 1.370(a).
10. Defendant filed a Motion to Determine Sufficiency of a Response to Request For Admissions. After a conversation with defense counsel the day before the hearing, Plaintiff’s counsel faxed an Amended Response to Request for Admissions which denied the particular request for admission in question.
11. Defendant was then forced to set and take thedeposition of the billing clerk of IMI of Oakland Park. The testimony of the billing clerk confirmed that IMI of Oakland Park never submitted a bill to Defendant. Nevertheless, the Defendant had to proceed with a Motion for Partial Summary Judgment to eliminate the issue.
12. There is no cause of action under the No-fault statute until thirty days after a bill is received. The bill was never submitted to the Defendant, therefore, no cause of action ever existed with respect to the bill from IMI of Oakland Park.
13. Plaintiff also alleged that the bills of Doctors Neurological Services were in issue. Defendant served Plaintiff with a Request for Admissions asking the Plaintiff to admit that he assigned his policy benefits to Doctors Neurological Services. Plaintiff’s counsel served Defendant with a response admitting that plaintiff signed the document in question, but denying that there was an assignment in favor of Doctors Neurological Services.
14. In order to eliminate the issue, Defendant was forced to file another Motion for Partial Summary Judgment. The motion was granted on the basis that the document in question was an assignment of benefits and Plaintiff lacked standing with respect to that particular bill. The document which plaintiff’s counsel denied was an assignment was titled, in part, an “assignment”. The document stated in all capital letters, “THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS AND BENEFITS UNDER THIS POLICY”. In opposition to the Motion for Partial Summary Judgment Plaintiff’s counsel filed an affidavit which had attached to it the HCFA form bill submitted to defendant by Doctors Neurological Services. The form, however, indicated that they had accepted an assignment. Plaintiff never had standing with respect to the bills from Doctors Neurological Services.
15. Plaintiff’s counsel engaged in ex parte discovery with Defendant’s retained expert. In a letter from Plaintiff’s counsel to the Defendant’s retained expert dated June 5, 2000, (which was not copied to defense counsel), she requested that the expert provide information as to other cases in which he had been an expert and information as to the percentage of his income derived from providing deposition or expert testimony as a plaintiff expert. While this may well have been properly discoverable information, the method by which Plaintiff’s counsel sought to obtain the information improperly circumvented the requirements of R.C.P. 1.280(b)(4).
16. Plaintiff’s counsel has litigated in bad faith. Courts have inherent power to assess attorneys fees against counsel for litigating in bad faith. Patsy v. Patsy, 666 So.2d 1045 (Fla. 4th DCA 1996); Nunes v. Ferguson Enterprises, 703 So.2d 491 (Fla. 4th DCA 1997).
It is therefore,
ORDERED AND ADJUDGED that Defendant’s Motion for Sanctions is GRANTED. The Plaintiff’s pleadings are hereby stricken and this action is dismissed with prejudice. Defendant is entitled to recover reasonable attorneys fees from Plaintiff’s counsel, Miriam Merlo, Esq. The amount of Defendant’s reasonable attorney’s fees shall be determined in an evidentiary hearing. The Court reserves jurisdiction to determine attorney’s fees and taxable costs.
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