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Florida Third DCA finds “bald repudiation” doctrine inapplicable to alleged discrepancies between IME doctor’s summary judgment affidavit and deposition testimony in PIP lawsuit

On April 14, 2021, in United Automobile Insurance Company, etc., v. Gables Rehab, Inc., etc., No. 3D21-91, the Florida Third DCA reversed a trial court order which had granted summary judgment in favor of a health care provider in a Personal Injury Protection (“PIP”) lawsuit. The health care provider had filed suit against the PIP insurer to recover PIP benefits after accepting an assignment of benefits from the insured in exchange for medical services. The PIP insurer had previously denied payment based on an independent medical examination (“IME”) of the insured. The trial court granted summary judgment to the health care provider after concluding that the affidavit of the IME doctor finding no relatedness or medical necessity in the medical treatment was “baldly repudiated” by his own deposition testimony. The “bald repudiation” doctrine articulated by the Florida Supreme Court in Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954) provides that “a party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.” The Third DCA disagreed with the trial court regarding the applicability of the doctrine in this circumstance, noting that the IME expert used precisely the same language to deny the medical necessity of the treatment in both the affidavit and his deposition testimony