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Florida Fourth DCA rules in PIP case that trial court abused discretion in excluding defense experts from testifying

On September 29, 2021, in State Farm v. Nob Hill Family Chiropractic, No. 4D21-204, the Florida Fourth DCA reversed a judgment for the plaintiff medical provider in a personal injury protection PIP case and remanded for a new trial, finding that the trial court erred in excluding the testimony of two of the insurance company defendant’s expert witnesses. One of the witnesses was a biomechanical engineer and medical doctor testifying as an accident reconstructionist and causation expert, who was prepared to testify that the insured was involved in a very low speed rear-end motor vehicle collision and was not subjected to forces or accelerations that would cause injury. After a two-day Daubert hearing, the trial court excluded the expert’s testimony, finding that while the expert had the minimal qualifications needed as an expert biomechanical engineer, he was offering medical testimony without ever having examined the plaintiff or otherwise relying on sufficient data or reliable methodology. The Fourth DCA found that the trial court abused its discretion, both because the trial court’s rulings were unduly conclusory in nature and because the Fourth DCA found the law to be clear that an expert need not physically examine an insured in an action for PIP benefits, citing United Auto. Ins. Co. v. Millennium Diag. Imaging Ctr., Inc., 12 So. 3d 242, 246 (Fla. 3d DCA 2009). The second rejected expert witness was the insurance company defendant’s sole expert witness as to the relatedness and medical necessity of treatment. His testimony was excluded based on the trial court’s finding that the defendant had violated discovery orders pertaining to this witness, specifically involving an allegedly inaccurate disclosure as to the total amount the insurer had paid to the expert in previous years. The Fourth DCA stated that “’it is critical for the trial court to exercise extreme cautionwhen excluding a party’s only witness’ or a party’s most important witness,” quoting Keller Indus. v. Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995), and “a litigant should not be punished for fault on the part of [its] counsel by such a severe sanction as striking [its] witnesses for non-compliance,” quoting Taylor v. Mazda Motor of Am., Inc., 934 So. 2d 518, 521 (Fla. 3d DCA 2005). The Fourth DCA concluded that the record did not demonstrate an “absolute refusal . . . to furnish the requested information,” quoting Surf Tech Int’l, Inc. v. Rutter, 785 So. 2d 1280, 1282–83 (Fla. 5th DCA 2001), or a “contumacious disregard of the court’s authority, as, right up until the court struck Dr. Mathesie, Insurer was attempting to comply with the court’s directives.” The Fourth consequently found that the trial court abused its discretion in excluding the expert’s testimony.