Florida Third District Court of Appeal Limits Access to Plaintiff’s Expert Witness

LawDuring the discovery process, the sharing of information is considered normal, if not the entire purpose of the endeavor. Indeed, the exchange of evidence often promotes bringing the truth to light efficiently or, at the very least, narrowing the issues in contention. However, some information remains beyond the scope of this liberal sharing process, and litigants will often fight vigorously to preserve the information over which they still have an entitlement to privacy. This situation arose in a recent case that was appealed to Florida’s Third District Court of Appeal, Bailey v. Miami-Dade County.

Bailey arose from an alleged act of negligence at Mt. Sinai Medical Center, involving Miami-Dade Fire Rescue employees and Mt. Sinai staff who dropped a patient who had suffered cardiac arrest aboard a cruise ship from a gurney. The patient later died, and her husband brought a wrongful death action against Mt. Sinai, alleging medical negligence and ordinary negligence. After commencing the action, the complaint was amended to include a count of ordinary negligence against Miami-Dade County. Prior to filing this action, the plaintiff retained a physician to prepare a medical affidavit, which is required for all actions involving medical negligence in Florida. During the discovery process, the physician’s name was disclosed to the defendants on expert interrogatories. The existence of the physician’s affidavit was also disclosed, but the plaintiff refused to proffer the affidavit, asserting work product privilege. Shortly thereafter, Mount Sinai settled, leaving Miami-Dade as the only defendant and ordinary negligence as the sole claim. When the trial court issued an order directing the parties to submit their witness lists, the physician’s name was not listed on the expert witness disclosure list, even though he had been listed as a expert who would testify on the earlier expert interrogatories. The defendant immediately sought to depose the physician, and the plaintiff refused, again citing work product privilege. The plaintiff sought a protective order, but the trial court denied the request, leading to the current appeal.

The Third District sided with the plaintiff. First, the court noted that deposing a non-testifying expert under the circumstances constituted a “departure from the essential requirements of the law.” Rocca v. Rones, 125 So. 3d 370 (Fla. 3d DCA 2013). Florida Rule of Civil Procedure 1.280(b)(5)(B) provides, “[d]iscovery of facts known and opinions held by experts, otherwise discoverable under the provisions […] of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows […] A party may discover facts known or opinions held by an expert who has been retained […] by another party in anticipation of litigation or preparation for trial and who is not expected to be […] a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances ….” Rule 1.360(b) provides for one party to submit to an examination by a qualified expert when “the condition that is subject of the requested examination is in controversy.” The Third District concluded that the present situation did not satisfy these conditions.

First, the defendants were not requesting that the decedent in this case submit to an examination, so Rule 1.360(b) was not applicable. Next, the defendants had failed to provide any evidence to the trial court showing exceptional circumstances that would justify deposing the expert witness. The Third District cited several earlier decisions clearly holding that the work product privilege applies in the absence of a clear showing of exceptional circumstances. Indeed, considering the sole claim remaining was one for ordinary negligence, it would be difficult for the defendant to show that disclosure of this medical evidence was of extraordinary importance. Accordingly, the Third District held that the trial court should’ve granted the protective order and remanded the case.

As this case demonstrates, the discovery process can be as litigious as trial. Given that disclosures during discovery can have a marked impact on the outcome of a case, someone considering bringing an action for an act of possible negligence should always consider enlisting the aid of counsel prepared to prevent disclosures that may lead to undue harm. The South Florida medical negligence attorneys at Frankl & Kominksy have argued numerous cases in both state and federal court and have an understanding of evidentiary law that could be useful for you should you pursue legal action to redress your injuries. Feel free to contact us for a complimentary case evaluation if you’re interested in the options you may have.

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