THOMAS HALDANE, APPELLANT,
v.
THOMAS IRWIN HALL, DONALD HERBERT MARTIN, AND COMMERCIAL CARRIERS CORPORATION, A FLORIDA CORPORATION, APPELLEES
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The Fourth District reversed a trial court's grant of a new trial, holding that a plaintiff could properly introduce the deposition of a treating physician expert witness without a specific Rule 1.390 reference in the notice, provided the notice clearly identified the deponent as an expert witness and the defendants had actual knowledge of that status.
The deposition was properly admitted. The notice satisfied the "reasonable notice" requirement of Rule 1.390(b) because it clearly indicated the deponent was an expert witness as defined in the rule, and the defendants had actual knowledge of this status and anticipated possible trial use. The trial judge erred in granting the new trial motion.
[1] A deposition of a treating physician, whose knowledge was gained in treating the plaintiff, may be admissible in evidence at trial.
[2] A deposition of an expert witness may be offered in evidence at trial without a showing of the witness's unavailability.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“"reasonable notice" within the meaning of Rule 1.390(b) is any notice which clearly indicates that the deponent is an "expert witness" as defined in Section (a) of the rule”
Establishes the court's holding on what constitutes sufficient notice for expert depositions
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Join FLexlaw to unlock all legal intelligenceThomas Haldane sued defendants for personal injuries from a motor vehicle collision. Before trial, defendants' counsel noticed the deposition of Dr. J…
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This is an appeal from an order awarding the defendants a new trial on the issues *740of damages only. The plaintiff, Thomas Haldane, sued the defendants for personal injuries arising out of a motor vehicle collision. Prior to the trial, the defendants’ attorney gave notice that he intended to take the deposition of a Dr. Jack Arron. It appears from the deposition that Dr. Jack Arron was one of the plaintiff’s treating physicians. It was the doctor’s knowledge gained in treating the plaintiff that was adduced by the deposition.
At the trial and over the defendants’ objection, the trial judge permitted the deposition of Dr. Arron to be read in evidence by the plaintiff without any showing that the doctor was unavailable for a personal appearance. The defendants’ counsel stated his objection to the use of the deposition in part as follows:
“The deposition was taken for use at trial; that was the purpose of it. Consequently, we should have noticed it under Rule 1.390 specifically, as the case says, which was not done. * * * ”
(Emphasis added.)
After an adverse verdict, the defendants moved for a new trial. The notice under which the deposition was taken did not specifically state that the deposition was taken pursuant to Rule 1.390, F.R.C.P. The trial judge concluded that because of this deficiency the deposition should not have been admitted in evidence and granted the motion.
Rule 1.390, F.R.C.P., defines an “expert witness” and in effect provides that the deposition of such a witness may be offered in evidence at trial without regard to the conditions that are normally attached to the use of the depositions of other witnesses as evidence at trial. (See Rule 1.-280(d) (3), F.R.C.P., relating to the availability of witnesses.)
Rule 1.390(b), F.R.C.P., provides that the deposition of an expert witness may be taken upon “reasonable notice.” The District Court of Appeal for the Second District has held that “reasonable notice” requires a specification in the notice that “the deposition is being taken pursuant to F.R.C.P. 1.390”. Bondy v. West, Fla.App. 1969, 219 So.2d 117, 119. If the notice omits this reference, according to the Bondy decision, the deposition cannot be used in the manner contemplated by Rule 1.390. The trial judge in the present case relied on Bondy v. West in granting the new trial.
Respectfully, we disagree with the opinion in Bondy v. West. Certainly the mention of the rule in the notice of the deposition is good practice. However, we think that “reasonable notice” within the meaning of Rule 1.390(b) is any notice which clearly indicates that the deponent is an “expert witness” as defined in Section (a) of the rule. When the parties are thus forewarned, they are put on notice by the Rules of Civil Procedure of all possible uses of the deposition and can govern themselves accordingly. The notice by the defendants in this case which merely indentified the deponent as “Dr. Jack Arron” may well not square with this interpretation of the rule. Nevertheless, the defendants were clearly aware at the time they served the notice of Dr. Arron’s deposition that the doctor was an expert witness within the meaning of Rule 1.390(a) and defendants contemplated the possible use of the deposition for evidence at trial. For this reason, the defendants have no basis for an objection to the sufficiency of the notice to identify the deponent as an expert witness under Rule 1.390, F.R.C.P. We conclude, therefore, that there was no error in permitting Dr. Arron’s deposition to be used in accordance with Rule 1.390, F.R.C.P., and that the motion for a new trial should have been denied.
The order granting the defendants’ motion for new trial is vacated, and the trial court is directed upon remand to enter judgment on the jury verdict.
WALDEN, J., and MORROW, RUSSELL O., Associate Judge, concur.
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Hall v. Haldane, 243 So. 2d 571 (Fla. 1971)…BOYD, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 234 So. 2d 739 (Fla.App. 4th 1970). Our jurisdiction is based on conflict between the decision sought to be reviewed and the decision in Bondy v. West, 219 So. 2d 117 (FIa.App.2d 1969). Plaintiff, respondent herein, sued petitioners for personal injuries arising…1 / 2
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Gordon v. ST. Mary's Hosp., Inc., 297 So. 2d 4 (Fla. 1974)…unders, 249 So. 2d 30 (Fla.1971); Hodge v. Jacksonville Terminal Co., 234 So. 2d 645 (Fla.1970); LaFleur v. Castlewood International Corporation, 285 So. 2d 449 (Fla.App. 3d 1973); Parker v. Chew, 280 So. 2d 695 (Fla.App. 2d 1-973); Haldane v. Hall, 234 So. 2d 739 (Fla.App. 4th 1970); Silvia v. Zayre Corporation, 233 So. 2d 856 (Fla.App. 3d 1970); North Dade Imported Motors v. Brundage, 221 So. 2d 170 (Fla.App. 1st 1969) and Seigel v. Solomon, 201 So. 2d 501 (Fla.App. 3d 1967). We have jurisdiction. Florida C…
Authorities Cited
- Kerr v. Kerr, 219 So. 2d 117 (Fla. 4th DCA 1969)