Putting the genie back in the bottle: Withdrawing a previously disclosed testifying expert2020-04-23T00:25:21+00:00
12.10.2013 // CONSTRUCTION LAW WATCH
Putting the genie back in the bottle: Withdrawing a previously disclosed testifying expert

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 L. Weekly D2378 (Fla. 3d DCA November 13, 2013), holding that a withdrawn expert may not be deposed unless exceptional circumstances exist.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 Although the expert was initially listed as a testifying witness, he was later withdrawn from the plaintiff’s witness list.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“[t]he protection provided by [this rule] applies to experts initially disclosed as testifying witnesses that are later withdrawn as such.”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.

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Ball Janik LLP was founded in 1982 with six lawyers and a four-person support staff in Portland, Oregon. Since our firm’s inception, we have expanded our capabilities, our professionals, and geographic footprint. What started as a firm focused in real property and land use (known then as Ball Janik & Novack), has grown to include the insights of a team of 30-plus attorneys, with a combined six centuries of experience, and capabilities including Real Estate and Land Use, Construction Defect, Commercial Litigation, Insurance Recovery, Construction and Design, Employment, Finance and Corporate, Public Agencies and Schools, and Community Associations. With offices in Florida and Oregon, our regional growth has earned us a national reputation for upholding the rights of our clients.

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Heather J. Oden
Oregon , Portland
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