Florida - EXPERT WITNESSES
Court erred in compelling county employee to testify even though he had not been retained as expert witness and had no personal knowledge that would make him fact witness. [Added 1/13/20]
In a suit between two businesses, one party listed a County employee, County Building Official Jamie Gascon, as a witness. The non-party County sought to preclude the taking of Gascon’s testimony on the ground that “he was neither a fact witness nor a retained expert.” The trial court issued an order compelling Gascon to testify. Seeking to quash the order, the County petitioned for a writ of certiorari.
The Third DCA granted the petition and quashed the order. “It is well-settled that an unretained expert cannot be compelled to render an expert opinion where he lacks knowledge of the facts of the case. . . . A court errs in compelling an expert ‘to testify when he ha[s] not been retained by the part[ies] and ha[s] no specific knowledge of the case, in contrast to general knowledge [he] may have by virtue of being an expert.’ . . . Moreover, a County employee cannot testify as an expert without the County’s explicit authorization. . . . The parties did not retain Mr. Gascon as an expert and the County has not agreed to permit Mr. Gascon to testify. Therefore, Mr. Gascon cannot testify as an expert witness.” (Citations omitted.)
Further, the record showed that “Mr. Gascon does not have any personal knowledge of the subject warehouse or related permitting. Thus, Mr. Gascon is not qualified to testify as a fact witness under [F.S.] 90.701 (2019).” Miami-Dade County v. Morejon, __ So.3d __ (Fla. 3d DCA, No. 3D19-1784, 12/4/2019), 2019 WL 6519057.
“What’s good for the goose is good for the gander” argument does not protect defense expert witness retention and compensation information from disclosure, but Fifth DCA certifies question to Supreme Court. [Added 2/26/19]
Plaintiff sued Defendant for personal injuries from an auto accident. Defendant’s insurer retained counsel to defend him. Defense counsel retain a physician to perform a compulsory medical exam (“CME”) on Plaintiff. Plaintiff sought to discover the frequency that the physician had been used by defense counsel during the past 3 years as well as the fees paid to him. Defendant objected, arguing that under a “good faith reading” or an “extension” of the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So.3d 18 (Fla. 2017), disclosure of the financial relationship between defense counsel and its expert witness is not discoverable. The trial court did not agree and ordered the information produced.
Defendant petitioned the Fifth DCA for first-tier certiorari relief. The appellate court denied the petition. The court noted that the issue in Worley was whether attorney-client privilege protected a plaintiff from disclosing that a lawyer referred the plaintiff to a doctor for treatment. In the view of Fifth DCA, Worley did not change the underlying law that generally allows discovery into a party’s financial relationship with an expert witness. Accordingly, the court rejected Defendant’s argument that the adage “what is good for the goose is good for the gander” should be applied to protect the information sought from Defendant.
Nevertheless, the appeals court indicated sympathy for Defendant’s position. “Our court has also noted the seemingly disparate treatment in personal injury litigation between plaintiffs and defendants regarding disclosure of this type of relationship. . . . For example, under Worley, a plaintiff law firm can refer 100 of its clients to the same treating physician, who may later testify as an expert witness at trial, without that referral arrangement being either discoverable or disclosed to the jury, yet if a defense firm sends each one of these 100 plaintiffs to its own expert to perform a CME under [Fla.R.Civ.P.] 1.360, and then later to testify at trial, the extent of the defense law firm’s financial relationship with the CME doctor is readily discoverable and can be used by the plaintiff law firm at trial to attack the doctor’s credibility based on bias.”
The court closed by noting that Defendant “raises a compelling argument that the law in this area is not being applied in an even-handed manner to all litigants” and certified the following question to the Supreme Court as one of great public importance: “Whether the analysis and decision in Worley should also apply to preclude a defense law firm that is not a party to the litigation from having to disclose its financial relationship with experts that it retains for purposes of litigation including those that perform compulsory medical examinations under Florida Rule of Civil Procedure 1.360?” Younkin v. Blackwelder, __ So.3d __ (Fla. 5th DCA, No. 5D18-3548, 2/22/2019), 2019 WL 847548, review granted, No. SC19-385, 2019 WL 2180625 (Fla., May 21, 2019).
NOTE: See also Dodgen v. Grijalva, __ So.3d __ (Fla. 4th DCA, No. 4D19-1010, 6/26/2019) (certifying same question to Florida Supreme Court); Salber v. Frye, __ So.3d __ (Fla. 5th DCA, No. 5D18-2917, 5/10/2019), 2019 WL 2062373 (same); Dhanraj v. Garcia, __ So.3d __ (Fla. 5th DCA, No. 5D18-2330, 3/22/2019), 2019 WL 1302540 (same)..
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] -- 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] -- 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).