Malpractice defendant not allowed to obtain information about expert
Appellate Court in Florida case denies certiorari for defendant seeking discovery about plaintiff’s presuit expert witness. A medical malpractice defendant moved to dismiss the complaint on the grounds that the plaintiff had failed to comply with Chapter 766 presuit notice requirements. The defendant specifically alleged that the expert doctor whose verified written statement the plaintiff had enclosed with the notice of intent to initiate litigation was unqualified because he lacked “substantial professional experience” under §766.102(9), Florida Statutes. The defendant also alleged that the plaintiff’s expert had failed to complete a review of all the available records before giving his opinion. The defendant then began conducting discovery about the expert, including taking his deposition twice, for a total of thirteen hours. The defendant sought production from non-party hospitals of materials relating to the expert’s staff privileges, and requested that the plaintiff produce all previous notices of intent to initiate litigation containing verified written statements by that expert. The trial court sustained the plaintiff’s objection to the production sought on the grounds that the materials were privileged. The defendant filed a petition for writ of certiorari. The Second District Court of Appeal initially dismissed the petition without a written opinion, but after a motion for rehearing, the Court issued a separate opinion explaining the reason for the dismissal. The new opinion began by noting that it is “unclear” whether defendants have a right to conduct discovery regarding the credentials of presuit witnesses who are not listed as trial witnesses, and, if they are entitled to do so, what the permissible scope of the discovery is and how much discretion the trial court has in limiting it. Therefore, the Court continued, it “arguably” could have denied the petition on the basis that there was no departure from the essential requirements of the law. Instead, the Court dismissed the petition for lack of jurisdiction, finding that the defendant’s failure to obtain the discovery would not result in material injury for the rest of the case, since the issue could be raised by petition for certiorari if the defendant’s pending motion to dismiss was denied.
Plantz v. John, __ So. 3d __, Case No. 2D14-5239 (2d DCA 3-18-15).