STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. NOB HILL FAMILY CHIROPRACTIC a/k/a MICHAEL J. COHEN, D.C., P.A. a/a/o KENRICK GRANT

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
NOB HILL FAMILY CHIROPRACTIC
a/k/a MICHAEL J. COHEN, D.C., P.A. a/a/o KENRICK GRANT,
Appellee.
No. 4D21-204
[September 29, 2021]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Florence Taylor Barner, Judge; L.T. Case Nos. COCE 06-
016458 (54) and CACE 17-022012.
Nancy W. Gregoire of Birnbaum, Lippman & Gregoire, PLLC, Fort
Lauderdale, for appellant.
Joseph R. Dawson of Law Offices of Joseph R. Dawson, P.A., Fort
Lauderdale, for appellee.
FORST, J.
Appellant State Farm Automobile Insurance Company (“Insurer”)
appeals the trial court’s final judgment for Appellee Nob Hill Chiropractic
a/k/a Michael Cohen, D.C., P.A. (“Provider”), in an action concerning
personal injury protection (“PIP”) benefits. On appeal, Insurer contends
that the trial court erred in three respects: (1) excluding one of its expert
witnesses pursuant to the law of the case doctrine; (2) excluding that same
witness under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993); and (3) excluding a separate expert witness based upon Insurer’s
violation of several pre-trial orders. On Insurer’s first issue, we affirm
without further discussion. As to the trial court’s exclusion of Insurer’s
two expert witnesses, we reverse and remand, as discussed below.
Background
Kenrick Grant (“Insured”) was involved in a rear-end motor vehicle
accident, allegedly sustaining injury. Insured sought treatment from
Provider, assigning Provider the right to PIP benefits under his applicable
insurance policy. Pursuant to the assignment, Provider requested
payment from Insurer, but purportedly did not receive “proper payment.”
Consequently, Provider filed a one-count complaint against Insurer for
breach of contract. In response, Insurer filed an Answer and Affirmative
Defenses, asserting that Insured’s treatment “was in whole or in part, not
reasonable, necessary nor related to the subject accident of this claim.”
Over the course of the next ten years, litigation ensued as to whether
certain treatment provided by Provider was reasonable,1 related, and
necessary. During that time span, a county court judge twice entered final
judgment in Provider’s favor, and the Seventeenth Judicial Circuit—in its
appellate capacity—twice reversed final judgment based on the trial court
erroneously granting summary judgment.
As is relevant for appellate purposes, following the appellate court’s
second reversal, the appellate court remanded the case back to the trial
court because the affidavits of Insurer’s two expert witnesses (Dr. Charles
(Ted) Bain and Dr. Michael Mathesie) created genuine issues of material
fact “on the relatedness and necessity of [Provider’s] treatment.” It is from
the resulting proceedings concerning these experts that Insurer now takes
issue.
A. Proceedings Concerning Dr. Bain
Dr. Bain was Insurer’s accident reconstructionist and causation expert,
who was prepared to testify that 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.” Upon remand, the trial court
granted Provider’s motion for a Daubert hearing as to Dr. Bain, holding a
two-day Daubert hearing thereafter. At the hearing, Dr. Bain—a
biomechanical engineer and medical doctor—testified as to his
qualifications and the methodology involved in his injury causation
analysis. 2
1 After the first appeal, Insurer stipulated that the prices charged by Provider
were reasonable. Thus, only the relatedness and necessity of certain treatments
remained.
2 In short, Dr. Bain testified that he first sought to “quantify the event.” To that
end, Dr. Bain attested that he: (1) looked at photographs and the repair estimate
of the subject vehicle; (2) purchased bumpers from identical vehicle models
involved in the accident; (3) placed said bumpers into a hydraulic press; and (4)
2
After Dr. Bain’s testimony, the parties presented their respective
arguments as to such testimony’s reliability. Provider argued in pertinent
part that Dr. Bain’s injury causation analysis was “semi-junk science,”
that Dr. Bain was unfamiliar with several significant variables that would
have impacted the force applied to Insured, and that Dr. Bain never
physically examined Insured and had an opinion contrary to several other
doctors. Ultimately, the trial court concluded the hearing without making
an oral ruling.
Roughly two months later, the trial court entered an “Order Granting
[Provider’s] Daubert Challenge . . . .” Within the order, the court found
that Insurer had met its “prima facie burden to show that Dr. Bain ha[d]
the minimal qualifications needed as an expert biomechanical engineer.”
However, the court rejected the contents of Dr. Bain’s proposed testimony,
stating:
While couched as an opinion on injury causation, Dr. Bain is
essentially testifying as to [Insured’s] medical condition
without ever having examined [Insured] nor relying on any
other sufficient data or reliable methodology. This Court is
not convinced that Dr. Bain’s testimony is based upon reliable
principles or methods and is clearly not based on sufficient
data, therefore, the Court is not persuaded that Dr. Bain’s
testimony will, in fact, assist the trier of fact, but would more
likely confuse the trier of fact as to [the] cause of [Insured’s]
injuries in this action.
Insurer moved for reconsideration, arguing that while the court had
rejected Dr. Bain’s injury causation analysis, the court had not considered
pushed the components together to “generate forces and . . . damage greater than
what we see on the pictures in the repair estimate.” “[U]sing math and physics
formulas,” Dr. Bain was then able to calculate the speed that the impacting
vehicle would have needed to be going to generate the necessary force and
damage upon Insured’s vehicle. According to Dr. Bain’s calculations, this
amounted to a rate of speed under 5.2 miles per hour.
With the speed and impact force in mind, Dr. Bain testified that he conducted a
biomechanical analysis to determine how Insured would have responded to the
forces involved in the accident. At the accident’s calculated speed, Dr. Bain
attested that the resulting forces would be “very, very low” and would not have
caused any structural injury to Insured’s spine, neck, or lower back.
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Dr. Bain’s opinion’s admissibility as it related to “the impact force and
speed of the adverse vehicle involved in the motor vehicle accident.” At the
ensuing hearing on the motion, the court noted that it had “neglect[ed] to
include the other portion of the order” where it also struck Dr. Bain
concerning the speed and force of impact. However, the trial court never
reduced this ruling to writing in an amended order.
Nevertheless, the court reiterated its finding that Dr. Bain “did not
satisfy the Daubert standard with respect to showing that . . . [his
testimony] was based on reliable principles and methods applied
scientifically to the appropriate fashion in this case.” In support of this
finding, the court specifically stated that it was concerned about the
sources used by Dr. Bain in forming his opinion, noting that one of the
studies Dr. Bain relied upon “was found not to be really reliable or
trustworthy.” Although the court was unable to recall exactly which study
was unreliable or untrustworthy, it made a general ruling that the basis
of Dr. Bain’s opinion and “the basis of the studies and the testimony . . .
were not sufficient . . . [and] not based upon reliable principles and
methods.” Consequently, the court struck Dr. Bain as an expert witness.
B. Proceedings Concerning Dr. Mathesie
Dr. Mathesie was Insurer’s only other expert witness. He was prepared
to testify as to the relatedness and medical necessity of treatment and to
“provide opinions as to the nature, duration and extent of [Insured’s]
injuries.” Following the appellate court’s second reversal, Provider
propounded expert witness interrogatories that included a request for
updated information as to both the amount Dr. Mathesie had been paid in
the preceding three years and the cases in which he testified.
Over the course of the next five months, Insurer sought several
extensions of time to respond to these interrogatories, and at several points
provided information as to the amounts paid to Dr. Mathesie in the
preceding three years, though in unverified form.
Two months before trial, the trial court held a hearing to address
Insurer’s incomplete/inadequate response to the interrogatories and
Provider’s motion for sanctions based on such. The trial court gave Insurer
fifteen days to provide compliant responses and awarded Provider $1,000
in sanctions.
Insurer sought reconsideration of the sanctions order and maintained
it could not timely comply with the court’s order to provide responses to
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interrogatories because of Hurricane Irma. Nonetheless, Insurer timely
supplied amended unverified answers to Provider’s expert witness
interrogatories, which it then (untimely but prior to trial) supplemented
two weeks later in verified form.
In response, Provider filed a motion that contended Insurer had not
provided compliant responses as mandated by the court. Further,
Provider pointed to a discrepancy in the financial figures provided by
Insurer, noting that Insurer’s representation as to the amount it paid Dr.
Mathesie in 2014 and 2015 differed from the amount Insurer had stated
in other cases involving Dr. Mathesie. Accordingly, Provider sought to
strike Dr. Mathesie as an expert witness.
At an eve-of-trial hearing on Provider’s motion, Insurer represented that
the discrepancies in Dr. Mathesie’s payment amounts across different
cases were not truly inconsistent. Among other explanations, Insurer
maintained that “the reason why there’s a discrepancy on paper, is
because when our office receives these summaries, sometimes, they are
not full year-end summaries.” Insurer further stated that, although Dr.
Mathesie was paid by both State Farm Mutual and State Farm Fire—two
different insurance carriers—Insurer had provided Provider only “one
number” which did not include figures from State Farm Fire.
Despite whatever inconsistencies may have existed, Insurer stated that
the total amount paid to Dr. Mathesie from 2013 through October 17,
2017, was $1,374,467.99. Insurer stated that the $1.3 million figure was
“substantial, and . . . significantly enough for [Provider] to conduct what
the Court would permit at trial in limited discovery.” Insurer represented
that it would “give [Provider] the number under oath” and would “sign the
affidavit” as to the $1.3 million dollar amount.
The trial court rejected Insurer’s response, finding deliberate violations
of trial court orders due to Insurer’s late responses to Provider’s discovery
requests and its ultimate provision of “inaccurate information.” The court
concluded that Provider “suffered absolute prejudice in its ability to
prepare to cross-examine the expert witness” and that the “prejudice was
curable only by a continuance of the case that has lasted over a decade.”
The court discussed the factors contained in Kozel v. Ostendorf, 629 So.
2d 817, 818 (Fla. 1993), stating that the Kozel factors militated toward
striking Dr. Mathesie as an expert because Insurer’s disobedience was
“willful, deliberate and contumacious.”
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Upon the parties’ agreement as to the remaining evidence to be
considered, jury trial was waived. Subsequently, the trial court entered a
directed verdict and final judgment in Provider’s favor. Insurer later moved
for rehearing—which the trial court denied—and timely appealed.
Analysis
“An order on a motion to exclude expert testimony is reviewed for abuse
of discretion.” Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110
(Fla. 4th DCA 2016). Similarly, “[a] trial court’s decision to impose
sanctions for discovery violations” is reviewed for an abuse of discretion.
See Griefer v. DiPietro, 708 So. 2d 666, 670 (Fla. 4th DCA 1998).
A. Daubert Issue and Exclusion of Dr. Bain
“Under Daubert, a trial judge has a gatekeeping role to ‘ensure that any
and all scientific testimony or evidence admitted is not only relevant, but
reliable.’” Kemp v. State, 280 So. 3d 81, 88 (Fla. 4th DCA 2019) (quoting
Daubert, 509 U.S. at 589). For proper appellate review purposes, a natural
requirement of the trial court’s gatekeeping function “is the creation of ‘a
sufficiently developed record in order to allow a determination of whether
the [trial] court applied the relevant law.’” Goebel Denver & Rio Grande W.
R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (quoting United States v.
Nichols, 169 F.3d 1255, 1262 (10th Cir. 1999)).
A trial court must “make specific factual findings on the record which
are sufficient for an appellate court to review the trial court’s conclusion
concerning whether the testimony was scientifically reliable and factually
relevant.” Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2005);
see also United States v. Lee, 25 F.3d 997, 999 (11th Cir. 1994) (“We
encourage [trial] courts to make specific fact findings concerning their
application of . . . Daubert in each case where the question arises, because
such findings will facilitate this Court’s appellate review.”) In the absence
of such necessary findings, appellate courts “are not well-suited to
exercising the discretion reserved to [trial] courts” in Daubert proceedings.
Goebel, 215 F.3d at 1088–89.
In Busch v. Dyno Nobel, Inc., 40 F. App’x 947 (6th Cir. 2002), after the
plaintiff’s expert witness submitted two reports outlining his intended trial
testimony and provided deposition testimony, the defendant sought the
expert witness’s exclusion under Daubert. Id. at 960. The trial court
granted the motion, ruling as follows:
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Performing its ‘gatekeeping’ function under Daubert, the Court
finds that [the expert’s] reports and his anticipated testimony
do not rest on a reliable foundation. It further finds that the
underlying reasoning and methodology is not sound or valid
to the task addressed and that his conclusions are therefore
speculative to the point of inadmissibility.
Id. Beyond this ruling, however, the trial court did not “make any specific
factual findings explaining [its] conclusion.” Id.
On appeal, the Sixth Circuit stated that the trial court’s decision was
“a mere recitation of the standard to be applied to determining the
admissibility of expert testimony” and provided “no insight into the
analysis supporting the trial court’s determination.” Id. at 961. The court
therefore found that the trial court had abused its discretion, and, as the
trial court had not previously held a Daubert hearing, the Sixth Circuit
directed the trial court to conduct such a hearing to develop an adequate
record and fulfill its gatekeeping responsibility. Id. at 961; see also Cristin
v. Everglades Correctional Institution, 310 So. 3d 951, 957 (Fla. 1st DCA
2020) (holding that once a Daubert objection was raised, the factfinder
“had the responsibility to perform the necessary analysis, make relevant
supporting findings of fact, and issue a ruling”) (emphasis added)).
Here, the trial court’s oral and written rulings concerning Dr. Bain’s
exclusion were conclusory in nature. As in Busch, the court merely
tracked the language of the relevant Daubert statute, section 90.702,
Florida Statutes. The only specific factual findings the trial court made
were that Dr. Bain was “essentially testifying as to [Insured’s] medical
condition without ever having examined [Insured]” and that Dr. Bain relied
upon a study that “was found not to be really reliable or trustworthy.”
As to the former, the law is clear that an expert need not physically
examine an insured in an action for PIP benefits. See United Auto. Ins. Co.
v. Millennium Diag. Imaging Ctr., Inc., 12 So. 3d 242, 246 (Fla. 3d DCA
2009). As to the latter, upon a thorough review of the record, we are
unable to locate discussion of any study at the Daubert hearing that “was
found not to be really reliable or trustworthy.” While Dr. Bain cited to a
study prepared by two Japanese researchers that involved “using a sled
that does not accurately replicate a rear-end collision, but . . . comes
close,” the record provides no indication that the study itself was
determined to be unreliable or untrustworthy. Moreover, while Dr. Bain
was cross examined concerning a citation to a paper that he himself had
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co-authored, there was no indication that the underlying information was
“not . . . reliable or trustworthy.”
This was not a situation in which there was no Daubert hearing.
Nonetheless, the instant case’s lack of factual findings beyond the mere
conclusory findings that Dr. Bain’s testimony was unreliable—combined
with the inadequacy of the only two stated factual findings in support—
leaves us to conclude the trial court abused its discretion in failing to meet
its gatekeeping responsibility to make adequate factual findings,
necessitating reversal and remand.
B. Violation of Pre-Trial Orders and Dr. Mathesie’s Exclusion
“Information regarding the frequency of an expert’s testimony and the
corresponding payments to the expert is discoverable from the defendant
insurer in a personal injury action.” Allstate Ins. Co. v. Hodges, 855 So.
2d 636, 640 (Fla. 2d DCA 2003). This information may be requested via
written interrogatories and is “directly relevant to a party’s efforts to
demonstrate to the jury a witness’s bias.” Allstate Ins. Co. v. Boecher, 733
So. 2d 993, 997 (Fla. 1999); see Fla. R. Civ. P. 1.340(b). In the event a
party fails to comply with discovery requests, the requesting party may
apply for an order compelling discovery. Fla. R. Civ. P. 1.380(a)(2). If the
court then compels discovery and the party still does not comply, the court
has the inherent authority to enter sanctions, including “prohibiting that
party from introducing designated matters in[to] evidence.” Fla. R. Civ. P.
1.380(b)(2)(B).
“Although the exclusion of a witness’s testimony is a permissible
sanction for a discovery violation under Florida Rule of Civil Procedure
1.380(b)(2), it is a drastic remedy which should be utilized only under the
most compelling circumstances.” Griefer, 708 So. 2d at 670 (emphasis
added). This is because “[t]he right to call witnesses is one of the most
important due process rights of a party.” Pascual v. Dozier, 771 So. 2d
552, 554 (Fla. 3d DCA 2000). Indeed, absent evidence of a party’s “willful
failure to comply or extensive prejudice to the opposition,” the exclusion
of testimony constitutes an abuse of discretion. Scott v. Reflections of
Sebastian, LLC, 133 So. 3d 1046, 1048 (Fla. 4th DCA 2014) (quoting
Kamhi v. Waterview Towers Condo. Ass’n, 793 So. 2d 1033, 1036 (Fla. 4th
DCA 2001)).
Further, “it is critical for the trial court to exercise extreme caution
when excluding a party’s only witness” or a party’s most important
witness. Keller Indus. v. Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995).
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“[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.”
Taylor v. Mazda Motor of Am., Inc., 934 So. 2d 518, 521 (Fla. 3d DCA 2005).
Simply stated, a trial court’s “sanction must be commensurate with the
offense.” Id.In the instant case, there was neither a showing of a willful failure to
comply, nor a demonstration of extensive prejudice to the opposition.
Scott, 133 So. 3d at 1048. Certainly, Insurer’s actions in filing unverified
answers (and in filing inconsistent financial figures) are not to be
commended. However, the record before us does not demonstrate an
“absolute refusal . . . to furnish the requested information.” See Surf Tech
Int’l, Inc. v. Rutter, 785 So. 2d 1280, 1282–83 (Fla. 5th DCA 2001). Nor
does the record demonstrate 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.
With respect to prejudice, we find it notable that each time Insurer filed
its unverified responses, those responses were identical to the later-filed
verified responses. See Burton v. GOV Contracting Corp., 552 So. 2d 293,
295–96 (Fla. 2d DCA 1989) (in some circumstances, an unsigned
document does not prejudice the other party when the sworn document is
identical). We further find it significant that Insurer was willing to
stipulate to a $1.3 million payment amount provided to Dr. Mathesie from
2013 through October 17, 2017, despite whatever discrepancies may have
existed in the information provided on the eve of trial.
Ultimately, the trial court struck Dr. Mathesie because of the case’s
age, despite acknowledging that prejudice to Provider was curable by a
continuance. While we understand the trial court’s reasoning, striking
Insurer’s last remaining expert witness was not an appropriate sanction,
as it was not commensurate with the offense. Consequently, we hold the
trial court abused its discretion in excluding Dr. Mathesie.
Conclusion
We reverse and remand for new trial consistent with this opinion.
Reversed and remanded.
MAY and LEVINE, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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