Mullins v. Tompkins

• Decision Date: 21 July 2009
• Docket Number: No. 1D09-1148.,1D09-1148.
• Citation: Mullins v. Tompkins, 15 So.3d 798 (Fla. App. 2009)
• Parties: Nan H. MULLINS, D.M.D., Petitioner, v. Alice TOMPKINS, Respondent.
• Court: Florida District Court of Appeals

15 So.3d 798

Nan H. MULLINS, D.M.D., Petitioner, v.Alice TOMPKINS, Respondent.

No. 1D09-1148.

District Court of Appeal of Florida, First District.

July 21, 2009.

Rehearing Denied August 25, 2009.

Michael W. Kehoe of Fuller, Johnson, Kehoe, Horky & Rettig, LLC, Pensacola, for Petitioner.

Brent F. Bradley of Kinsey, Troxel, Johnson, Walborsky & Bradley, P.A., Pensacola, for Respondent.

BENTON, J.

Nan H. Mullins, the defendant in a dental malpractice action filed by Alice Tompkins, petitions for a writ of certiorari.Dr. Mullins asks us to quash the trial court's order which denied her motion for protective order, and required instead that the materials in controversy be unsealed and provided to Ms. Tompkins, a former patient: The trial court ruled that Dr. Mullins had waived any attorney-client privilege or work product protection merely by sending the documents to her own expert.Persuaded that the trial court's ruling departs from the essential requirements of law and that its order would cause material harm that could not adequately be remedied on appeal, we grant the writ and quash the order.

In the normal course of discovery, Ms. Tompkins scheduled the deposition of C. Benson Clark, another dentist whom Dr. Mullins had listed as an expert witness.In preparation for the deposition, Ms. Tompkins caused a subpoena duces tecum to issue which directed Dr. Clark to produce for the deposition his complete file, including all documents furnished to him by anyone.At the deposition, Dr. Clark testified that, in forming his opinion, he reviewed x-rays, photographs, transcripts of other depositions, and a model.Conceding other documents were in his possession, including the materials in controversy here, Dr. Clark testified that he had never read them.¹

Dr. Mullins' counsel described the materials in controversy as letters from counsel(to Dr. Mullins and her malpractice insurer, whom he also represented) which included counsel's evaluations of claims and defenses; and as e-mails and other correspondence from Dr. Mullins to him in which she explained in detail and commented on Ms. Tompkins' care and treatment.

The parties agreed to seal the materials in controversy pending a ruling by the trial court, and Dr. Mullins promptly moved for a protective order to prevent their disclosure to Ms. Tompkins.Attached to the motion was Dr. Mullins' affidavit averring that she had never desired to waive any privileges applicable to the materials in controversy and that she had not even meant to send the materials to Dr. Clark, the expert.The trial court entered an order, however, ruling that, by negligently including the materials in controversy when she made the transmittal to her expert, Dr. Mullins had waived all applicable privileges, pursuant to section 90.507, Florida Statutes(2008).By petition for writ of certiorari, Dr. Mullins now asks this court to quash the order of the trial court.

To "obtain a writ of certiorari, there must exist `(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case(3) that cannot be corrected on postjudgment appeal.'"Reeves v. Fleetwood Homes of Fla., Inc.,889 So.2d 812, 822(Fla.2004)(quotingBd. of Regents v. Snyder,826 So.2d 382, 387(Fla. 2d DCA2002))."A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law,"Metabolife Int'l, Inc. v. Holster,888 So.2d 140, 141(Fla. 1st DCA2004)(citingAllstate Ins. Co. v. Langston,655 So.2d 91, 94(Fla.1995)), and would require disclosure negating a petitioner's legal privilege in "violation of a clearly established principle of law."Combs v. State,436 So.2d 93, 96(Fla.1983).

The privileges at issue here are the attorney-client privilege² and the work product privilege.³In her response to the petition for writ of certiorari, Ms. Tompkins concedes that "it is clear that ... the documents ... were ordinarily privileged under the attorney-client and/or work product privileges."The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party's own expert.SeeFla. R. Civ. P. 1.280(b)(4)(B):

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence.SeeSmith v. State,873 So.2d 585, 591(Fla. 3d DCA2004)("We also hold that the act of disclosing it [privileged material] to an expert witness who would be testifying at trial does not alone waive the work product privilege.").But seeCharles W. Ehrhardt & Matthew D. Schultz, Pulling Skeletons From the Closet: A Look Into the Work-Product Doctrine as Applied to Expert Witnesses, 31 Fla. St. U.L.Rev. 67, 83-89(Fall 2003).

The trial court gave no indication it did not believe Dr. Clark's testimony that he had not even read the privileged documents, much less find that he had relied on them in any way.Even assuming that work product and privileged communications provided to an expert witness become discoverable⁴ if used as a basis for the expert's opinion, see§§ 90.704-.705, Fla. Stat.(2008);Fla. R. Civ. P. 1.280(b);Northup v. Acken,865 So.2d 1267, 1270(Fla.2004)("[T]he scope of the attorney work product privilege protection is specifically bounded and limited to materials which are not intended for use as evidence or as an exhibit at trial....On the other hand, if the evidence or material is reasonably expected or intended to be disclosed to the court or jury at trial, it must be identified, disclosed, and copies provided to the adverse party in...