Appellant State Farm Automobile Insurance Company (“Insurer”) appeals the trial courts 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (3) excluding a separate expert witness based upon Insurers violation of several pre-trial orders. On Insurers first issue, we affirm without further discussion. As to the trial courts exclusion of Insurers 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 Insureds 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,
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related, and necessary. During that time span, a county court judge twice entered final judgment in Providers 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 courts second reversal, the appellate court remanded the case back to the trial court because the affidavits of Insurers two expert witnesses (Dr. Charles (Ted) Bain and Dr. Michael Mathesie) created genuine issues of material fact “on the relatedness and necessity of [Providers] treatment.” It is from the resulting proceedings concerning these experts that Insurer now takes issue.
A. Proceedings Concerning Dr. Bain
Dr. Bain was Insurers 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 Providers 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.
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After Dr. Bains testimony, the parties presented their respective arguments as to such testimonys reliability. Provider argued in pertinent part that Dr. Bains 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 [Providers] 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. Bains proposed testimony, stating:
While couched as an opinion on injury causation, Dr. Bain is essentially testifying as to [Insureds] medical condition without ever having examined [Insured] nor relying on any other sufficient data or reliable methodology. This Court is not convinced that Dr. Bains testimony is based upon reliable principles or methods and is clearly not based on sufficient data, therefore, the Court is not persuaded that Dr. Bains testimony will, in fact, assist the trier of fact, but would more likely confuse the trier of fact as to [the] cause of [Insureds] injuries in this action.
Insurer moved for reconsideration, arguing that while the court had rejected Dr. Bains injury causation analysis, the court had not considered Dr. Bains opinions 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. Bains 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 Insurers 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 [Insureds] injuries.” Following the appellate courts 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 Insurers incomplete/inadequate response to the interrogatories and Providers 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 courts order to provide responses to interrogatories because of Hurricane Irma. Nonetheless, Insurer timely supplied amended unverified answers to Providers 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 Insurers 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 Providers motion, Insurer represented that the discrepancies in Dr. Mathesies payment amounts across different cases were not truly inconsistent. Among other explanations, Insurer maintained that “the reason why theres 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 Insurers response, finding deliberate violations of trial court orders due to Insurers late responses to Providers 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 Insurers disobedience was “willful, deliberate and contumacious.”
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 Providers 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 courts 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, 113 S.Ct. 2786). For proper appellate review purposes, a natural requirement of the trial courts 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 v. 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 courts 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 Courts 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. Appx 947 (6th Cir. 2002), after the plaintiffs expert witness submitted two reports outlining his intended trial testimony and provided deposition testimony, the defendant sought the expert witnesss exclusion under Daubert. Id. at 960. The trial court granted the motion, ruling as follows:
Performing its ‘gatekeeping’ function under Daubert, the Court finds that [the experts] 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 courts 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 courts 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 courts oral and written rulings concerning Dr. Bains 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 [Insureds] 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 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 cases lack of factual findings beyond the mere conclusory findings that Dr. Bains 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. Mathesies Exclusion
“Information regarding the frequency of an experts 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 partys efforts to demonstrate to the jury a witnesss 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 witnesss 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 partys “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. Assn, 793 So. 2d 1033, 1036 (Fla. 4th DCA 2001)).
Further, “it is critical for the trial court to exercise extreme caution when excluding a partys only witness” or a partys most important witness. Keller Indus. v. Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995). “[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 courts “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, Insurers 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 Intl, Inc. v. Rutter, 785 So. 2d 1280, 1282–83 (Fla. 5th DCA 2001). Nor does the record demonstrate a contumacious disregard of the courts authority, as, right up until the court struck Dr. Mathesie, Insurer was attempting to comply with the courts 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 cases age, despite acknowledging that prejudice to Provider was curable by a continuance. While we understand the trial courts reasoning, striking Insurers 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.
FOOTNOTES
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. After the first appeal, Insurer stipulated that the prices charged by Provider were reasonable. Thus, only the relatedness and necessity of certain treatments remained.
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. 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) 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 Insureds vehicle. According to Dr. Bains 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 accidents calculated speed, Dr. Bain attested that the resulting forces would be “very, very low” and would not have caused any structural injury to Insureds spine, neck, or lower back.
Forst, J.
May and Levine, JJ., concur.