Barfuss v. Diversicare Corp. of America, 94-02255
| Decision Date | 20 January 1995 |
| Docket Number | No. 94-02255,94-02255 |
| Citation | 656 So.2d 486 |
| Parties | 20 Fla. L. Weekly D241 Glenice BARFUSS, n/k/a Glenice Faye Jackson, Petitioner, v. DIVERSICARE CORPORATION OF AMERICA d/b/a DeSoto Manor Nursing Home and Counsel Nursing Properties, Inc., d/b/a DeSoto Manor Nursing Home, Respondents. |
| Court | Florida District Court of Appeals |
Robert E. Sharbaugh, McClean and Schecht, P.A., Tampa, for petitioner.
James A. Murman, Barr, Murman, Tonelli, Herzfeld & Rubin, Tampa, for respondent, Counsel Nursing Properties, Inc., d/b/a DeSoto Manor Nursing Home.
Teresa D. Jones and Melinda A. Delpech, of Syprett, Meshad, Resnick & Lieb, Sarasota, for respondent, Diversicare Corp. of America d/b/a DeSoto Manor Nursing Home.
Glenice Barfuss, n/k/a Glenice Faye Jackson (hereinafter "Barfuss"), seeks review of a circuit court order which (1) compels pre-trial disclosure of expert witnesses; and (2) prohibits contact with former employees of respondent, Diversicare Corporation of America, d/b/a DeSoto Manor Nursing Home and Counsel Nursing Properties, Inc., d/b/a DeSoto Manor Nursing Home, (hereinafter collectively referred to as "the Home") 1. We grant the petition and issue the writ as to the order requiring revelation of expert witnesses and deny the petition in all other respects.
The facts underlying this action demonstrate that Barfuss was a resident of DeSoto Manor Nursing Home from July 10, 1991, to February 9, 1992. She brought suit against the Home alleging violations of Chapter 400, Florida Statutes (1991), and that the Home was negligent in providing for her.
Discovery ensued, including the Home's request for information concerning the expert witness Barfuss intended to call at trial and any report submitted by the expert. Barfuss responded, stating, "Not determined at this time."
The Home moved to compel, successfully arguing that since count two of the complaint sounds in medical negligence, Barfuss must retain and disclose her expert witness. Additionally, the Home filed a motion requesting that Barfuss be ordered to stop ex parte contact with the Home's employees and former employees.
In a single order addressing both motions, the court ordered Barfuss to "identify the expert or experts within 30 days"; prohibited ex parte contact with employees of the Home; and prohibited ex parte contact with former employees who had cared for or treated Barfuss. Further, as had been requested, Barfuss was ordered to provide the Home with statements taken from the employees and former employees, "excluding any mental impressions of counsel." Barfuss now presents that order for our consideration of whether the trial court departed from the essential requirements of law.
In the case of an order regarding discovery, the trial court has broad discretion and only when such an order constitutes an abuse of discretion which would cause irreparable damage will the ruling be set aside. American Southern Co. v. Tinter, Inc., 565 So.2d 891 (Fla. 3d DCA 1990).
Even though Chapter 766 may be applicable to some of the actions complained of by Barfuss 2, the trial court's order is improper. As in Myron v. Doctors General, Ltd., 573 So.2d 34 (Fla. 4th DCA 1990), the court's action has the effect, at the very least, of requiring Barfuss to divulge the identity of specially retained non-witnesses or work product experts. Such a requirement without the requisite showing of hardship by the Home as required in Florida Rule of Civil Procedure 1.280(b)(4)(B) constitutes an abuse of discretion. See also Lift Systems, Inc. v. Costco Wholesale Corp., 636 So.2d 569 (Fla. 3d DCA 1994).
In addressing the second issue concerning ex parte contact, Barfuss concedes that there should be no such contact with present employees of the Home. However, she asserts that the court departed from the essential requirements of law by ordering her to have no further contact with former employees of the Home who cared for or treated her.
There is a split of decision across the nation on the propriety of ex parte contact with former employees. 3 This court has visited the issue and affirmed a circuit court's denial of a motion for protective order which sought a blanket prohibition against contact with all former employees of a nursing home. See Manor Care of Dunedin, Inc. v. Keiser, 611 So.2d 1305, 1308 (Fla. 2d DCA 1992) (). However, the affirmance was without prejudice to file a more specific motion for protective order since we noted that the federal court had recently addressed the issue of ex parte communications in Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 651, 658 (M.D.Fla.1992), 4 and had concluded that
a former employee who is a "party" because of his position and knowledge will remain a party even after he leaves the corporation.... The corporation continues to have a vital interest in the employee's knowledge of privileged information and its potential release to opposing counsel in litigation after the employee leaves.
In the present case, the court granted the motion to prohibit contact with former employees, however, it was not a blanket proscription. The court tailored its order as follows:
As to former employees, the Defendant has represented that all former employees who cared for or treated the Plaintiff have been disclosed to Plaintiff in interrogatory answers. As to those former employees, the Motion to prohibit ex parte contact is granted, pending further orders of this Court.
We hold that this limited restriction does not depart from the essential requirements of law, as the...
To continue reading
Request your trial
-
Reynoso v. Greynolds Park Manor, Inc., 95-1290
...former nursing home employees. The motion for protective order was based on the Second District decision in Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995). The Barfuss court interpreted Rule 44.2 of the Rules of Professional Conduct to preclude plaintiff's counsel......
-
Lowder v. Economic Opportunity Family Health Center Inc., 94-2542
...as a defendant in this action. For the proposition that Dr. Ayers is a "party," plaintiff relies on Barfuss v. Diversicare Corporation of America, 656 So.2d 486, 488 (Fla. 2d DCA 1995). We have expressly declined to follow Barfuss in Reynoso v. Greynolds Park Manor, Inc., 659 So.2d 1156, 11......
-
Lee Mem'l Health System v. Smith
...with the matter may be imputed to the organization for purposes of civil or criminal liability. See also Barfuss v. Diversicare Corp. of Am., 656 So.2d 486, 488 n. 4 (Fla. 2d DCA 1995), disapproved on other grounds by H.B.A. Mgmt., Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla.1997); Brown......
-
Estate of Peters By and Through Bilirakis v. Consulting Management and Educ., Inc., 97-00118
...to this court's holdings in Keesal v. First Healthcare Corp., 684 So.2d 214 (Fla. 2d DCA 1996), and Barfuss v. Diversicare Corp. of America, 656 So.2d 486 (Fla. 2d DCA 1995), the petition is denied. We certify direct conflict with the holdings of Reynoso v. Greynolds Park Manor, Inc., 659 S......
-
Discovery of Information and Documents from a Litigant's Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles
...Ohio 1997) (citing Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990)). 99. Barfuss v. Diversicare Corp. of Am., 656 So. 2d 486, 488 (Fla. Dist. Ct. App. 1995). 100. Weider Sports Equip. Co., v. Fitness First, Inc., 912 F. Supp. 502, 510 (D. Utah 1996). 101. MODEL R......