View this article online: https://www.insurancejournal.com/news/southeast/2023/02/06/706242.htm
A Florida appeals court has issued a sharp rebuke to an insurance defense attorney, upholding sanctions and charging that he has engaged in a pattern of conduct designed to trigger mistrials.
Dale Gobel, of Orlando, made “intentionally misleading and deceptive statements” in an auto accident case and utilized improper discovery procedures to obtain medical records, the 5th District Court of Appeal said in an opinion posted Friday.
The court noted that other judges have found that Gobel, of the firm Gobel Flakes, had engaged in misconduct. “Mr. Gobel has occasioned more mistrials in these two cases alone than most lawyers will have in an entire career,” the court quoted from a 2021 opinion by retired 5th DCA Judge Jay Cohen.
Gobel could not be reached Monday morning. His firm’s website shows that Gobel has litigated extensively in insurance defense, defense of personal injury claims and defense of first-party contract claims. The Florida Bar does not list any prior disciplinary actions against Gobel.
The case before the 5th District stemmed from an automobile accident in Brevard County. The first trial ended in a mistrial. Then the plaintiff’s attorney asked the trial court to sanction Gobel for “ongoing illegal conduct” that caused the mistrial. The judge agreed and struck the defendant’s pleadings in the case.
On appeal, Gobel asked the 5th DCA to review the sanctions. The appeal judges found that the trial court had sufficient evidence for sanctions and of Gobel’s misleading statements on his prior relationship with a physician witness. Gobel also served notice of intent to issue subpoenas then prematurely sent the subpoenas, the court said.
The lawyer also sought to obtain updated medical records without the plaintiff’s knowledge or consent. His office sent a letter referring to the need for “missing” records.
“As observed by our sister court, there is no authority for the proposition that discovery subpoenas are continuing in nature, permitting a treating physician subpoenaed once for records to continue to produce updated records to the party that subpoenaed him upon an informal, ex parte request,” the 5th DCA opinion reads.
The court noted, however, that it reversed the trial court’s order striking the defense pleadings in the auto-accident case. The judges said that the plaintiff’s attorney, Jeffrey Byrd, of Orlando, also had a significant role in causing the mistrial and and that he, too, has been cited by the court for unprofessional conduct.
“After giving due consideration to the trial court’s findings, but also giving consideration to the fact that both attorneys’ conduct contributed to the need to declare a mistrial in the first trial, we conclude that the trial court abused its discretion in striking Defendant’s pleadings,” the court said. “Instead, the trial court should have imposed sanctions directly upon the individual who it found had made ‘intentionally misleading and deceptive statements’ to the court and/or jury and who utilized improper discovery procedures.”
The court said it would be appropriate to require Gobel to pay attorney fees and witness fees in the case. The court remanded to the trial judge for a new trial on damages in the accident and to consider alternative sanctions. Judges Kerry Evander, Brian Lambert and Harvey Jay concurred.