Expert Witness Rules, Laws and Procedure in Florida

Florida Rules Regarding Expert Witness Depositions and Interrogatories

Under Rule 1.280(b)(5)(A)(iii) of the Florida Rules of Civil Procedure, any expert expected to provide testimony at trial may be deposed. There is no set time limit for depositions, but Rule 1.310(b)(3) provides that the court may expand or shorten the time allowed for taking a deposition for cause. Experts may not be subject to interrogatories in Florida as they may only be served on parties.

Florida Expert Witness Reports and Disclosures Rules

Following the Federal Rules of Civil Procedure, Rule 1.280(b)(5) of the Florida Rules of Civil Procedure divides experts into two categories: those expected to provide testimony at trial and those retained only for consulting purposes in anticipation of or preparation for litigation. Under Rule 1.280(b)(5)(B), discovery related to the latter category of experts is limited to exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. This is a high burden for a party seeking discovery to meet. For an example of a Florida case in which the court did allow discovery of a non-testifying expert based on exceptional circumstances, see Wackenhut Corp. v. Crant-Heisz Enterprises, Inc., 451 So. 2d 900, 902-03 (Fla. Dist. Ct. App. 1984), which was a negligence case involving damage from a fire. In that case, the party seeking discovery of the fire expert had deposed arson task force members who had investigated the fire and were knowledgeable about its location and circumstances. However, the relevant structure that was damaged in the fire had been removed from the property and the non-testifying expert had the only known photographs of the structure. The court granted discovery of the photographs based on exceptional circumstances, but still would not allow a deposition of the expert.

On the other hand, under Rule 1.280(b)(5)(A)(iii), for experts who are expected to provide testimony at trial, the retaining party must disclose upon request from the other party (1) the identity of each expert; (2) the subject matter on which the expert will testify; (3) the facts and opinions to which the expert will testify and the bases for those opinions; (4) the scope of the expert’s employment in the case and the expert’s compensation for such services; (5) the expert’s litigation experience, including the percentage of cases for which the expert testified on behalf of plaintiffs and the percentage of cases for which he or she has testified on behalf of defendants; (6) the names of reasonably recent cases (usually those falling within the last three years) in which the expert has testified either by deposition or at trial; and (7) an estimation of the extent of involvement of the expert as a witness, which may be based on number of hours, percentage of hours, or percentage of compensation.[1] Lastly, “only under the most unusual or compelling circumstances,” a testifying expert may be required to produce financial or business records. Florida cases suggest that “unusual or compelling circumstances” requiring disclosure of financial and business records may be found where information that is required to be disclosed is only found in such records. See Orkin Exterminating Co. v. Knollwood Props., 710 So. 2d 697, 698 (Fla. Dist. Ct. App. 1998) (requiring a testifying expert to produce financial and business records when the information regarding cases in which the expert had recently participated, which is a required disclosure, were only available in those records); see also Gramman v. Stachkunas, 750 So. 2d 688, 690 (Fla. Dist. Ct. App. 1999) (holding that unusual or compelling circumstances were not present even though physical evidence regarding cases in which the expert had recently served was apparently only available in the expert’s financial and business records, because the expert had provided the necessary information during deposition).

Rules Regarding Lawyer-Expert Communications, Draft Expert Witness Reports, Expert Witness Notes, Etc. in Florida

The distinction between experts expected to provide testimony at trial and experts retained only for consulting purposes in anticipation of or preparation for litigation also applies to discovery of draft reports, expert-attorney communications, and expert notes in Florida. For testifying experts, Florida cases suggest that the expert’s draft reports, work papers, and notes are fully discoverable without any showing of exceptional circumstances or substantial need. See, e.g., Peck v. Messina, 523 So. 2d 1154 (Fla. Dist. Ct. App. 1988); Mims v. Casademont, 464 So. 2d 643 (Fla. Dist. Ct. App. 1985). Further, communications between attorneys and testifying experts, even those that would otherwise be considered attorney work product, may be discoverable if used or relied on by the expert in forming his or her opinions. See Mullins v. Tompkins, 15 So. 3d 798 (Fla. Dist. Ct. App. 2009); Fields v. Cannady, 456 So. 2d 1208 (Fla. Dist. Ct. App. 1984).

[1] The expert, however, is not required to disclose his or her earnings either from serving as an expert witness or from other positions held or services performed.