        Third District Court of Appeal
                                  State of Florida

                           Opinion filed February 27, 2015.
           Not final until disposition of timely filed motion for rehearing.

                                 ________________

                                   No. 3D15-353
                            Lower Tribunal No. 13-13502
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                             Helen Bailey etc., et al.,
                                      Petitioners,

                                          vs.

                              Miami-Dade County,
                                     Respondent.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County.

      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



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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.



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      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

1 Civil 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.

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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



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      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.




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