       Third District Court of Appeal
                                State of Florida

                           Opinion filed January 20, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D14-2164
                          Lower Tribunal No. 10-28794
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                                 Linda Prater,
                                     Appellant,

                                         vs.

               Comprehensive Health Center, LLC, et al.,
                                     Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

      Brett C. Powell; Darryn L. Silverstein, for appellant.

      Fann & Petruccelli, Michael A. Petruccelli and Steven A. Osher (Ft.
Lauderdale); Hicks, Porter, Ebenfeld & Stein, Dinah Stein and Shannon Debus-
Horn, for appellees.

Before SHEPHERD, LAGOA and EMAS, JJ.

      EMAS, J.
      Plaintiff, Linda Prater, appeals the trial court’s order striking her pleadings

and entering final judgment in favor of the Defendants, Comprehensive Health

Center, LLC, Rose-May Seide, M.D. and Phillipe Louis Jacques, P.A. For the

reasons set forth herein, we reverse.

      At the heart of this appeal is the late disclosure of a single piece of evidence

which Prater’s counsel discovered on the eve of the first day of jury selection: an

electronic copy of a page from a prescription pad from Comprehensive’s office

with the handwritten words “Prilosec OTC” scrawled across it. There was no

patient name, no date and no doctor’s signature on the document. Although Dr.

Seide testified that the words on the document appeared to be in her handwriting,

her medical records detailing Prater’s visit contained no indication that Dr. Seide

prescribed or recommended this medication to Prater.1

      When Prater’s counsel discovered the electronic copy of this document in

his computer records, he immediately notified defense counsel, and the issue was

addressed in court the next morning, prior to the resumption of jury selection. The

trial court initially indicated that if Plaintiff had not previously produced the


1 The question of whether Dr. Seide had prescribed or recommended Prilosec to
Prater emerged as an issue at some point during pretrial discovery. It is undisputed
that Prater complained of stomach pain during her initial visit to Dr. Seide. And
although the medical notes of that initial visit do not reflect that Dr. Seide
prescribed or recommended Prilosec, the medical notes of Prater’s follow-up visit
to Dr. Seide reflect: “Pt. was seen previously for lower abd. [abdominal] pain,
states that she was prescribed Prilosec which did not help.”

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document, this was a violation of the pretrial order and it would be excluded from

trial.    Nevertheless, after Plaintiff’s counsel explained the circumstances

surrounding the late discovery of the document2, the court instead gave Prater two

options: (i) she could proceed to trial without using or referring to the document, or

(ii) she could agree to a mistrial3 and potentially bear the attorney’s fees and costs

associated with the mistrial. Prater accepted the latter alternative, the jury panel

was stricken, and the court reserved ruling, pending further discovery, on whether

attorney’s fees and costs would be awarded.

         What ensued was a subsequent sanctions hearing, followed by a court-

ordered deposition to discern the “chain of custody” of the late-discovered

document and efforts to locate the original, and then another sanctions hearing. At

the second sanctions hearing, the court, in a contentious exchange with Prater’s

counsel, eventually ordered Prater’s pleadings be stricken due to what it deemed

was the satisfaction of all seven factors set forth in Kozel v. Ostendorf, 629 So. 2d

817 (Fla. 1993).




2 Counsel explained that when he met with Prater at the inception of the case,
Prater showed counsel the document. It was scanned into the law firm’s computer,
and the original was returned to Prater. However, the scanned copy was
inadvertently not stored with the other electronic records in this case and was not
discovered by Prater’s counsel until after jury selection had begun.
3 Technically the court would simply strike the jury venire and no mistrial would

be declared, as the jury had not yet been selected and sworn.

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      We find it unnecessary to further detail the course of the proceedings

leading up to the trial court’s decision to strike Prater’s pleadings and enter final

judgment in favor of Defendants. Suffice it to say that there was not competent

substantial evidence to support the trial court’s conclusions that each of the Kozel

factors had been met, including the absence of record support for a finding that the

actions of Prater’s counsel were willful, deliberate or contumacious, and a finding

that Prater’s counsel had been previously sanctioned. More significantly, the trial

court’s imposition of the ultimate sanction—the striking of Prater’s pleadings and

entry of final judgment in favor of Defendants—was not commensurate with the

violation at issue. Turner v. Anderson, 376 So. 2d 899 (Fla. 2d DCA 1979)

(holding that “the severity of the sanction must be commensurate with the

violation.”) See also Mercer v. Raine, 443 So. 2d 944 (Fla. 1983) (finding “the

striking of pleadings or entering a default for noncompliance with an order

compelling discovery is the most severe of all sanctions which should be employed

only in extreme circumstances.”) Because the violation could have been remedied

appropriately and satisfactorily by the court either prohibiting the document from

being introduced or referred to during trial, or alternatively by awarding attorney’s

fees and costs caused by the late discovery and disclosure,4 the present situation

4 These were the two alternative remedies the trial court initially suggested it was
inclined to consider. And while it is true that Defendants’ motion for sanctions
alleged, in its general prayer for relief, a number of sanctions which included the
striking of pleadings, it is worth noting that Defendants never affirmatively

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did not warrant imposition of the most extreme sanction. The court’s action was

an abuse of discretion.

      We therefore reverse and remand for proceedings consistent with this

opinion.




requested such relief at any of the several hearings held on the matter. Defendants
consistently argued that the appropriate sanction was an award of fees and costs
caused by the actions of Prater and her counsel.

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