Like all complex litigation, expert opinions factor heavily in construction litigation. 49 out of 50 states (Oregon being the only exception) require some level of disclosure of a testifying expert’s opinions prior to trial, but not the disclosure of non-testifying consultants. The testifying expert is then subject to being questioned on his or her disclosed opinions. But what happens when a party wishes to put the genie back in the bottle and withdraw a previously disclosed testifying expert prior to his or her deposition? Florida’s Third District Court of Appeals recently answered that question in  Rocca v. Rones, ___ So. 3d ___, 38 Fla. L. Weekly D2378 (Fla. 3d DCA November 13, 2013), holding that a withdrawn expert may not be deposed unless exceptional circumstances exist.

In Rocca, the plaintiff hired an expert to assist preparing the case. Although the expert was initially listed as a testifying witness, he was later withdrawn from the plaintiff’s witness list. The trial court ordered the expert to submit to a deposition “but only as a non-expert fact witness.” Nevertheless, at the deposition the expert was asked questions implicating expert work product. When counsel for the plaintiff instructed the witness not to answer certain questions, defense counsel terminated the deposition and asked the trial judge to compel the witness to answer questions. The trial court granted the motion, but the appellate court reversed. According to the Third District, Rule 1.280(b)(5)(B) prohibits the deposition of a non-testifying consultant unless exceptional circumstances exist and “[t]he protection provided by [this rule] applies to experts initially disclosed as testifying witnesses that are later withdrawn as such.” Here, the defendants failed to show that the non-testifying consultant possessed “pertinent factual information unrelated to what ha[d] been disclosed to him by [the plaintiff] or his attorneys or otherwise protected by privilege, or that exceptional circumstances appl[ied] because the defendants [were] unable to acquire relevant information by any other means” the trial court’s order compelling the consultant’s deposition” depart[ed] from the essential requirements of law” and was reversed.

The upshot is, at least in Florida, you can put the genie back in the bottle.