ROSS EVAN MORGAN AND DANIA OFFICE MACHINES, PETITIONERS,
v.
JOSEPH PAUL TRACY, RESPONDENT
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The court held that disclosing an expert's report does not waive the work product privilege for undisclosed facts and opinions, and withdrawing an expert from the witness list prevents their deposition absent exceptional circumstances.
Petitioners sought a protective order to prevent the respondent from deposing a defense expert whose report was disclosed but whose name was later wit…
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PER CURIAM.
Petitioners, defendants below in a personal injury action, seek certiorari review of the trial court’s interlocutory order denying their motion for a protective order. Petitioners seek to prevent respondent from deposing a defense expert whose written report was previously disclosed to respondent, and whose name was initially listed on petitioner’s trial witness list but was later withdrawn.
We grant the petition for writ of certiorari on the authority of rule 1.280(b)(4)(B), Florida Rules of Civil Procedure. See also Gilmor Trading Corp. v. Lind Electric, Inc., 555 So. 2d 1258 (Fla. 3d DCA 1989); Ruiz v. Brea, 489 So. 2d 1136 (Fla. 3d DCA 1986). We reject respondent’s contention that petitioner’s prior disclosure of the expert’s written report constituted a waiver of the work product privilege as to the facts known and opinions held by the expert that were not previously disclosed. See Truly Nolen Exterminating, Inc. v. Thomasson, 554 So. 2d 5 (Fla. 3d DCA 1989), rev. dismissed, 558 So. 2d 20 (Fla.1990); Eastern Air Lines, Inc. v. Gellert, 431 So. 2d 329 (Fla. 3d DCA 1983).
We also conclude that petitioners’ initial listing of the expert on their trial witness list did not constitute a waiver of the work product privilege. Now that petitioners have withdrawn the expert’s name from their trial witness list, respondent cannot depose the expert absent a showing of exceptional circumstances. Fla.R.Civ.P. 1.280(b)(4)(B).
DOWNEY, DELL and GUNTHER, JJ., concur.
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Forman v. Malka Fink, 646 So. 2d 236 (Fla. 3d DCA 1994)…ry of an expert not expected to testify at trial, we grant the petition and quash this part of the trial court’s order. See Fla.R.Civ.P. 1.280(b)(4)(B); Lift Systems, Inc. v. Costo Wholesale Corp., 636 So. 2d 569 (Fla. 3d DCA 1994); Morgan v. Tracy, 604 So. 2d 15 (Fla. 4th DCA 1992); Gilmor Trading Corp. v. Lind Elec., Inc., 555 So. 2d 1258 (Fla. 3d DCA 1989); Ruiz ex rel. Ruiz v. Brea, 489 So. 2d 1136 (Fla. 3d DCA 1986) (opinion on rehearing). Petitions for writ of certiorari granted; order quashed in par…
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R.J. Reynolds Tobacco Co. v. Lewis, 275 So. 3d 747 (Fla. 5th DCA 2019)…ly disclosed as testifying witnesses that are later withdrawn as such.” Rocca v. Rones, 125 So. 3d 370, 372 (Fla. 3d DCA 2013). When a party removes an expert’s name from the witness list, that expert may not then be deposed. See Morgan v. Tracy, 604 So. 2d 15, 15 (Fla. 4th DCA 1992) (“Now that petitioners have withdrawn the expert’s name from their trial witness list, respondent cannot depose the expert absent a showing of exceptional circumstances.”). We therefore reverse the trial court’s orders find…
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Bailey v. Miami-Dade Cnty., 186 So. 3d 1044 (Fla. 3d DCA 2015)…retained, non-testifying expert under the circumstances presented constitutes a departure from the essential requirements of law. Rocca v. Rones, 125 So. 3d 370 (Fla. 3d DCA 2013); Forman v. Fink, 646 So. 2d 236 (Fla. 3d DCA 1995); Morgan v. Tracy, 604 So. 2d 15 (Fla. 4th DCA 1992). Florida Rule of Civil Procedure 1.280(b)(5)(B) provides: (b) Scope of Discovery. Unless otherwise limited by order óf the' court in accordance with these rules, the scope of discovery is as follows: (5) Trial Preparation: Exp…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- L.B.K., Inc. v. Union Indem. Ins. Co., 431 So. 2d 329 (Fla. 3d DCA 1983)
- Gilmor Trading Corp. v. Lind Elec., Inc., 555 So. 2d 1258 (Fla. 3d DCA 1989)
- Ruiz v. Cesar Brea, M.D., 489 So. 2d 1136 (Fla. 3d DCA 1986)
- Truly Nolen Exterminating, Inc. v. Thomasson, 554 So. 2d 5 (Fla. 3d DCA 1989)