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SCI Funeral Services of Florida, Inc., et al. v. Elisabeth O. Walthour, et al., Case No. 1D15-110 (1st DCA)

In Walthour, the defendants in an automobile accident case sought certiorari review of a trial court order directing the defendants to disclose four redacted paragraphs in a medical opinion report prepared by their expert witness. The case involves personal injuries resulting from a motor vehicle accident. The plaintiff later had surgery which allegedly was necessary because of the accident. A separate medical malpractice claim was filed against the surgeon based on a perforated colon that occurred during surgery. The complaint filed in this case, however, did not allege medical malpractice nor did it seek damages for any complications arising from the surgery.

The defendants retained an orthopedic surgeon who, at defense counsel’s request, prepared a report summarizing his opinions regarding causation between the accident and the surgery as well as the standard of care rendered by the surgeon who perforated the plaintiff’s colon. The defendants disclosed the orthopedic surgeon as an expert who would testify as to the causal connection between the accident and the surgery. The defendants produced a copy of the expert’s report, but redacted four paragraphs, claiming work product. The trial court later compelled the defendants to disclose the paragraphs. This appeal followed.

The First District noted that parties are entitled to discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. To obtain discoverable documents protected by as work product, a party must show a need for the materials for the preparation of their case and the inability to obtain the substantial equivalent without undue hardship. The First District first found that the expert’s opinion as to whether the injuries for which the plaintiff had surgery were related to accident was relevant to the case, and not privileged.

The First District then noted, however, that the defendants also retained the expert to render opinions as the standard of care attendant to the plaintiff’s surgery. Because the plaintiff is not seeking damages in this case for medical malpractice connected to the surgery, the expert’s standard of care opinions are not relevant. The court further noted that the standard of care opinions were rendered at the instruction of counsel and in order to ascertain the defendants’ potential recourse against the surgeon should a verdict be entered in favor of the plaintiff. Therefore, the redacted paragraphs of the medical opinion concerning the standard of care were irrelevant and privileged. The plaintiff argued that discovery of the standard of care opinions was necessary to explore motive and bias. The First District ruled, however, that offering an expert’s unpresented opinions simply to attack the expert’s credibility is improper.


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