41
Fla. L. Weekly D1194aTop of Form

Wrongful
death — Medical malpractice — Negligence — Discovery — Depositions — Trial
court departed from essential requirements of law by allowing defendant to
depose plaintiff’s retained, non-testifying expert where defendant failed to
argue or offer proof that exceptional circumstances existed for taking expert’s
deposition — Plaintiff did not waive work product privilege by providing
defendant with affidavit prepared by expert in accordance with medical
malpractice presuit requirements or by initially listing expert as witness
before medical malpractice claim was settled, after which expert’s name was
withdrawn from witness list and case proceeded solely on ordinary negligence
count

HELEN BAILEY etc., et al., Petitioners, v. MIAMI-DADE
COUNTY, Respondent. 3rd District. Case No. 3D15-353. L.T. Case No. 13-13502.
February 27, 2015. A Writ of Certiorari to the Circuit Court for Miami-Dade
County. Counsel: James C. Blecke, for petitioners. R.A. Cuevas, Jr., Miami-Dade
County Attorney, and Eric K. Gressman, Assistant County Attorney, for
respondent.

(Before SHEPHERD, C.J., and EMAS and SCALES, JJ.)

(EMAS, J.) Petitioner, Helen Bailey, as personal
representative of the Estate of Samuel Bailey (hereafter “Plaintiff”) petitions
for a writ of certiorari and requests this court to quash a trial court order
which allows Miami-Dade County (hereafter “Defendant”) to depose Dr. Ali Raja,
Plaintiff’s retained, non-testifying expert. We conclude that the trial court
order departed from the essential requirements of law, grant the petition for
writ of certiorari, and quash the order allowing Defendant to depose Dr. Raja.

Plaintiff’s husband (“Decedent”) suffered a cardiac event on
a cruise ship and was transported by Miami-Dade Fire Rescue to Mount Sinai
Medical Center (“Mt. Sinai”). Upon his arrival at Mt. Sinai, Decedent was
allegedly dropped from a gurney onto the ground by Mt. Sinai staff and/or
Defendant’s employees. While being treated at Mt. Sinai, Decedent died.

Initially, Plaintiff filed a wrongful death action, as
personal representative of Decedent’s estate, against only Mt. Sinai, alleging
one count for medical negligence and a separate count for ordinary negligence.
Plaintiff later amended her complaint to add an ordinary negligence claim
against Defendant Miami-Dade County, based on its alleged role in Decedent
being dropped from the gurney.

Prior to filing the action, Plaintiff retained Dr. Ali Raja
to review the medical negligence claim against Mt. Sinai and prepare an
affidavit in accordance with the presuit requirements of Florida’s medical
malpractice provisions, Chapter 766, Florida Statutes (2013). This presuit
affidavit was provided to Defendant. Following commencement of the lawsuit, and
while the medical negligence claim against Mr. Sinai remained pending,
Plaintiff disclosed Dr. Raja’s name (and his status as an expert) to Defendant
in response to expert witness interrogatories, stating that Dr. Raja would
testify as to all matters relating to liability including standard of care,
breach and causation. Also in her response, Plaintiff acknowledged the
existence of Dr. Raja’s statutory presuit affidavit, and objected to its
production as privileged under Chapter 766.

Thereafter, Plaintiff settled with Mt. Sinai, leaving
Miami-Dade County as the only remaining defendant and leaving the ordinary
negligence claim as the only remaining count.

The trial court issued its trial order and, in accordance
with that order, the parties submitted their respective witness list and expert
witness disclosure list. Dr. Raja’s name did not appear on either of the
Plaintiff’s lists. Thus, although Plaintiff had, through answers to expert
interrogatories, earlier disclosed Dr. Raja as an expert who would testify as a
witness at trial, Plaintiff withdrew Dr. Raja’s name and he was no longer a
witness who would be called by Plaintiff at trial. Nevertheless, Defendant
sought to depose Dr. Raja, and Plaintiff moved for a protective order. The
trial court denied Plaintiff’s motion for protective order, finding that by
providing the presuit affidavit to Miami-Dade County, Plaintiff waived any
work-product privilege and that the deposition of Dr. Raja could proceed. This
petition followed.

Permitting the deposition of the opposing party’s 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 of the court in
accordance with these rules, the scope of discovery is as follows:

. .
.

5)
Trial Preparation: Experts. Discovery of facts known and opinions held by
experts, otherwise discoverable under the provisions of subdivision (b)(1) of
this rule and acquired or developed in anticipation of litigation or for trial,
may be obtained only as follows:

. .
.

(B)
A party may discover facts known or opinions held by an expert who has been
retained or specially employed by another party in anticipation of litigation
or preparation for trial and who is not expected to be called as a witness at
trial, only as provided in rule 1.360(b)1 or upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other means.

(Emphasis added.)

In Rocca, 125 So. 3d at 371, Rocca hired an
accounting expert to assist him in reviewing records, preparing the case for
trial, and formulating an expert opinion regarding Rocca’s damages. The expert
was originally included on Rocca’s list of trial witnesses but was removed when
the defense sought to depose the expert. The deposition nevertheless went
forward over Rocca’s objection and, when the expert appeared at deposition but
refused to answer questions based upon an assertion of work-product privilege,
the trial court issued an order to show cause why the expert should not be held
in contempt. Rocca filed a petition for writ of certiorari and we granted the
petition, observing:

The
protection provided by rule 1.280(b)(5)(B) applies to experts initially
disclosed as testifying witnesses that are later withdrawn as such. Forman
v. Fink, 646 So.2d 236, 237 (Fla. 3d DCA 1994). When an expert has been
specially employed in preparation of litigation but is not to be called as a
witness at trial, the facts known or opinions held are deemed to be work
product and may be discovered only by a showing of exceptional circumstances,
as mandated by rule 1.280. Gilmor Trading Corp. v. Lind Elec., Inc., 555
So.2d 1258, 1259 (Fla. 3d DCA 1989).

Id. at 372.

In Morgan, 604 So. 2d at 15, petitioner sought
certiorari review to prevent respondent from deposing a defense expert whose
written report was previously disclosed to respondent, and whose name was
initially listed as trial witness but was later withdrawn. Our sister court
granted the petition:

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. 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.

Morgan, 604 So. 2d at 15 (internal
citations omitted).

In the instant case, Defendant failed to argue below (or
offer proof) that exceptional circumstances existed for the taking of Dr.
Raja’s deposition. Thus, consistent with Rocca, Forman and Morgan,
we hold that the trial court’s denial of Plaintiff’s motion for protective
order was a departure from the essential requirements of law. We grant the
petition, quash the order under review, but withhold formal issuance of the
writ.

__________________

1Civil Rule of Procedure 1.360
provides a procedure for one party to request the other party to submit to an
examination by a qualified expert when the condition that is the subject of the
requested examination is in controversy.

* *
*