Summary
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report was previously disclosed to respondent, and whose name was initially listed as trial witness but was later withdrawn.
Summary of this case from Bailey v. Miami-Dade Cnty.Opinion
No. 92-1619.
August 12, 1992. Clarification Denied September 28, 1992.
Petition from the Circuit Court, Broward County, Harry G. Hinckley, Jr., J.
Richard A. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, for petitioners.
John W. Conness of John W. Conness, P.A., Fort Lauderdale, for respondent-Tracy.
Petitioners, defendants below in a personal injury action, seek certiorari review of the trial court's interlocutory order denying their motion for a protective order. Petitioners seek to prevent respondent from deposing a defense expert whose written report was previously disclosed to respondent, and whose name was initially listed on petitioner's trial witness list but was later withdrawn.
We grant the petition for writ of certiorari on the authority of rule 1.280(b)(4)(B), Florida Rules of Civil Procedure. See also Gilmor Trading Corp. v. Lind Electric, Inc., 555 So.2d 1258 (Fla. 3d DCA 1989); Ruiz v. Brea, 489 So.2d 1136 (Fla. 3d DCA 1986). 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. See Truly Nolen Exterminating, Inc. v. Thomasson, 554 So.2d 5 (Fla. 3d DCA 1989), rev. dismissed, 558 So.2d 20 (Fla. 1990); Eastern Air Lines, Inc. v. Gellert, 431 So.2d 329 (Fla. 3d DCA 1983).
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 Now that petitioners have withdrawn the expert's name from their trial witness list, respondent cannot depose the expert absent a showing of exceptional circumstances. Fla.R.Civ.P. 1.280(b)(4)(B).
DOWNEY, DELL and GUNTHER, JJ., concur.