10 Years On, Florida AOB Case Goes Back to Trial Court

It started out as a relatively minor automobile accident a decade ago. Now, after multiple appeals and more than a million dollars spent on expert witnesses, a Florida appeals court has again remanded a State Farm assignment-of-benefits case to the trial court.

In State Farm Mutual Automobile Insurance vs. Nob Hill Family Chiropractic, the 4th District Court of Appeal decided that the trial court erred in excluding two State Farm expert witnesses.

The case began when Kenrick Grant was rear-ended in Broward County, on Florida’s bustling southeast coast. He was treated by a chiropractor and he assigned the personal injury protection benefits to the provider. The chiropractor, Michael Cohen, balked when State Farm did not make “proper payment.”

Over the next 10 years, litigation ensued over whether the chiropractor’s treatment was reasonable and necessary. A county judge twice decided in the doctor’s favor, but an intermediate appeals court twice reversed the judgment.

State Farm’s accident reconstructionist, referred to only as Dr. Bain, is a biomechanical engineer and a medical doctor. He found, based on photos and accident reports, that Grant “was involved in a very low speed rear-end motor vehicle collision . . . [and] was not subjected to forces or accelerations that would cause injury.”

In a Daubert hearing, which challenges the expert’s qualifications, the chiropractor called Bain’s testimony “semi-junk science.” The trial court then rejected Bain’s conclusions, saying he testified about a medical condition without having examined the patient.

On a second expert witness, Dr. Mathesie, who examined the medical necessity of the chiropractor’s treatment, State Farm did not respond in a timely manner to the chiropractor’s discovery interrogatories. The carrier blamed the delay in part on Hurricane Irma, which struck parts of Florida in 2017. Finally, when State Farm did comply, the amounts it said it had paid to the witness – some $1.3 million over four years – differed from other accounts.

Nonetheless, the trial court rejected the insurer’s response, saying State Farm had failed to comply with court orders and provided inaccurate and unverified information. The judge entered a verdict in the chiropractor’s favor.

The 4th DCA found that Broward County Judge Florence Taylor Barner had abused her discretion in failing to make specific, factual findings about the suitability of Bain’s testimony. On the second expert, the appeals court quoted case law and said that excluding testimony solely because of discovery violations was a “drastic remedy.”

“Ultimately, the trial court struck Dr. Mathesie because of the case’s age, despite acknowledging that prejudice to provider was curable by a continuance,” appeals court Judge Alan Forst wrote. “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.”

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Florida

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