United Auto appealed an adverse summary judgment entered by the County Court of Broward County. The trial court had stricken the deposition testimony of United's expert, on grounds that the expert had failed to produce the reports for the IMEs conducted in the past three years. The Circuit court, sitting in its appellate capacity, stated:

The fact that section §627.736(7)(a) requires a physician to maintain copies of all examination reports and records of all payments does not require the expert physician to produce the same or make them available for inspection. The 2003 amendment to section §627.736(7)(a) was done so based on a legislative finding that some insurers had pressured or directed IME doctors to change reports favorable to the insurers. See Final Report of Select Committee on Automobile/P.I.P. Reform, S. 40-5, 4th Sess., at 3 (2003). ... the purpose of the amendment was not to accommodate discovery requests for the purpose of impeaching the expert witness, but instead, was enacted to improve IME reporting.

Even assuming this court were to find that section §627.736(7)(a) does require Appellant's expert physician witness to produce for inspection the IME reports and Peer Reviews for the last three years, this court would still be required to find that such an order departs from the essential requirements for the law pursuant to the holding in Graham v. Dacheikh, 991 So.2d 932 (Fla. 2nd DCA 2008).

Finding that the discovery requests in this case would have violated the privacy rights of nonparties without the notice and opportunity for the parties to be heard, as required by §456.057(7), the court reversed the trial court's order.

Since the court struck the expert's testimony when the expert was not found in contempt or that the party had violated a legitimate discovery order, the court further found the summary judgment must be reversed.

In addition, the court agreed with Appellant that the trial court erred in granting summary judgment in favor of the provider as to a count which claimed damages from the insurer's failure to provide an EOB. Citing United Auto. Ins. Co. v. Coastal Wellness Center, Inc., 2010 WL 711795 (Fla. 4th DCA 2010) and United Auto. Ins. Co. v. A 1st Choice Healthcare Systems, 21 So.3d 124 (Fla. 3rd DCA 2009), the court reversed on that point as well.

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