Florida - EXPERT WITNESSES
Court erred in ordering production of those portions of expert’s written opinion that were not relevant to claims at issue in that suit. [Added 7/14/15]
Respondents (Husband and Wife) sued Petitioner for personal injuries allegedly suffered in an auto accident caused by Petitioner’s employee. Wife had surgery, which she claimed was a direct result of the accident. Although Respondents filed a separate medical malpractice action against the surgeon, in the personal injury case they did not allege medical malpractice or seek damages from complications arising from the surgery.
Petitioner retained an expert, Dr. Hyde, and specified that “his testimony would be limited to the causal connection, if any, between the accident and surgery.” Petitioner gave Respondents a copy of Dr. Hyde’s report, but redacted 4 paragraphs “purportedly containing his standard of care opinion, asserting work product privilege.” (Petitioner sought a standard of care opinion from Dr. Hyde to use in an equitable subrogration case against the surgeon in the event of a jury finding that the surgery was related to the collision.)
Respondents moved to compel production of an unredacted copy of the expert report. The trial court granted the motion. The First DCA quashed the production order to the extent it required disclosure of Dr. Hyde’s standard of care opinion.
“Parties are entitled to discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. See Fla.R.Civ.P. 1.280(b)(1) (emphases [by court]). . . . Discovery of opinions held by experts, otherwise discoverable under subdivision (b)(1), and acquired or developed in anticipation of litigation, may be obtained by interrogatories or deposition. Fla. R. Civ. P. 1.280(b)(5) (emphasis [by court]).”
The portion of Dr. Hyde’s report regarding causal connection between the accident and the surgery was relevant to the personal injury action. Because Petitioner intended to use that opinion, it “is not privileged and is discoverable.” In contrast, the portion of the report with Dr. Hyde’s standard of care opinion is not relevant to the personal injury case. Consequently, “the redacted paragraphs of the medical opinion report concerning the standard of care are both irrelevant and privileged” and are not discoverable under Fla.R.Civ.P. 1.280(b)(5).
The court rejected Respondents’ contention that the redacted paragraphs were discoverable so that they could explore the expert’s possible motive and bias, noting that “offering an expert’s unpresented opinions simply to attack the expert’s credibility is improper. See Jordan ex rel. Shealy v. Masters, 821 So.2d 342, 348-49 (Fla. 4th DCA 2002).” SCI Funeral Services of Florida, Inc. v. Walthour, __ So.3d __ (Fla. 1st DCA, No. 1D15-110, 6/22/2015), 2015 WL 3824205.
Fourth DCA quashes order requiring broad disclosure of expert witness’s financial information relating to testimony for insurance company and defense counsel. [Added 5/8/15]
Plaintiffs in a personal injury case sought to compel disclosure of financial information relating to the expert witness who testified for Insurer. The expert had performed the compulsory medical examination. The trial court ordered production of 3 years’ worth of records to show things like: “all billing invoices” submitted by the expert to the Insurer or the defense law firm; the “total amount of money paid by or on behalf of” defendants, Insurer, or defense counsel; and all “documents evidencing the amount or percentage of work performed by [the expert] on behalf of any Defendant and/or defense law firm and/or insurance carrier.”
The Fourth DCA quashed the order as broader than that permitted by Fla.R.Civ.P. 1.280(b)(5). “Rule 1.280 limits discovery from experts who are obviously hired by one party to the litigation. The limitations were deemed necessary to prevent overly intrusive and harassing financial discovery which serves ‘only to emphasize in wholly unnecessary detail what everyone knows to be the case and what would be apparent to the jury on the simplest cross-examination[.]’ LeJeune v. Aikin, 624 So.2d 788, 789–90 (Fla. 3d DCA 1993) (Schwartz, C.J., specially concurring).”
The court further noted that, although Brown v. Mittelman, 152 So.3d 602 (Fla. 4th DCA 2014) held that Rule 1.280 does not apply to discovery from a treating doctor, in this case the expert witness was not a treating doctor.The Fourth DCA quashes an order requiring broad disclosure of an expert witness’s financial information relating to testimony for an insurance company and defense counsel. Grabel v. Sterrett, __ So.3d __ (Fla. 4th DCA, No. 4D14-4780, 4/29/2015), 2015 WL 1934558.
Letter of protection between plaintiff and her treating physician who testified as an expert is admissible to show physician’s potential bias. [Added 9/5/13] -- Pack v. Geico General Ins. Co., 119 So.3d 1284 (Fla. 4th DCA 9/4/2013).
Court erred in dismissing professional negligence suit against expert witness on ground of witness immunity. [Added 12/28/12] -- Hoskins v. Metzger, 102 So.3d 752 (Fla. 2d DCA 2012).
State agency seeking expert’s deposition in termination of parental rights proceeding must pay for it. [Added 3/21/12] -- Colaizzo v. Office of Criminal Conflict and Civil Regional Counsel, 82 So.3d 195 (Fla. 4th DCA 2012).
Court erred in imposing sanctions on party due to conduct of its expert witness. [Added 2/811] -- State Farm Mutual Auto. Ins. Co. v. Swindoll, 54 So.3d 548 (Fla. 3d DCA 2011).
Error to tax as costs the fee of expert witness who did not testify at trial and whose deposition testimony was not used at trial. [Added 3/25/04] -- Family Dollar Stores of Florida, Inc. v. Jones, 867 So.2d 1278 (Fla. 4th DCA 2004).
Mention of allegedly improper expert witness fee agreement in violation of order in limine was ground for granting new trial. [Added 11/28/03] -- Orvis v. Caulkins Indiantown Citrus Co., 861 So.2d 1181 (Fla. 4th DCA 2003).
Where non-testifying expert did not acquire confidences that would result in unfair informational advantage, disqualification of lawyer who hired expert was not warranted. [Added 7/30/03] -- Sultan v. Earing-Doud, 852 So.2d 313 (Fla. 4th DCA 2003).