Zuberbuhler v. Division of Administration, State Dept. of Transp., 76--1955

• Decision Date: 20 April 1977
• Docket Number: No. 76--1955,76--1955
• Citation: 344 So.2d 1304
• Parties: Harry ZUBERBUHLER et al., Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
• Court: Florida District Court of Appeals

Page 1304

344 So.2d 1304

Harry ZUBERBUHLER et al., Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.

No. 76--1955.

District Court of Appeal of Florida, Second District.

April 20, 1977.

Rehearing Denied May 19, 1977.

Hugh E. Starnes, Henderson, Franklin, Starnes & Holt, Ft. Myers, for petitioners.

Andrew H. Schuster, Tallahassee, for respondent.

SCHEB, Judge.

Respondent, Division of Administration, filed eminent domain proceedings against several land owners. One of the condemnees now seeks certiorari raising this one clear-cut legal issue: Did the trial judge depart from the essential requirements of the law in allowing discovery of certain information from expert witnesses the condemnee expects to call at trial? We think not and deny certiorari.

The Division of Administration of the State Department of Transportation, as condemnor, attempted pretrial discovery by propounding certain interrogatories to the condemnee. The information sought concerned the substance of the facts and opinions to which the condemnee's witnesses were expected to testify at trial. The condemnee objected, and, citing Pinellas County v. Carlson, 242 So.2d 714 (Fla.1970), contended the information was not discoverable by the condemnor since no discovery had been initiated by the condemnee.

The trial judge, on the basis of Fla.R.Civ.P. 1.280(b)(3)(A), granted the condemnor's motion to compel discovery. This petition by condemnee for a writ of certiorari ensued. Condemnee contends the trial judge's application of Rule 1.280(b) departs from the essential requirements of the law and may cause material injury throughout subsequent proceedings. If well taken, condemnee's argument meets the requirement for issuance of a writ of certiorari, since remedy by appeal would be inadequate. In effect, courts recognize that once discovery has been compelled, it would be impossible to 'unring the bell.' West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla.1st DCA 1975).

The amendments to the Florida Rules of Civil Procedure which became effective January 1, 1973, significantly expanded the scope of discovery, particularly relating to expert witnesses. The Florida Bar, Rules of Civil Procedure, 265 So.2d 21 (Fla.1972).

As relates to discovery from experts, the amended Rule provides:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, . . .

(2) . . .

(3) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) By interrogatories A party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions pursuant to subdivision (b)(3)(C) of this rule concerning fees and expenses as the court may deem appropriate.

(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. (Emphasis supplied.)

Subdivision (b)(3)(A) of the Rule allows discovery from experts expected to testify, but limits discovery to that testimony expected to be given at trial. In contrast, subsection (b)(3)(B) controls where an expert is Not expected to be called as a witness at trial. Discovery is thus allowed, but only upon a showing of exceptional circumstances in the second instance.

Rule 1.280(b)(3) is a verbatim adoption of Federal Rule of Civil Procedure 26(b)(4). Generally, it must be assumed that in adopting a rule identical to a Federal rule that our Supreme Court intended to achieve the same results that would inure under the Federal rule. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla.1st DCA 1962). Recently this court, speaking through Judge McNulty, said:

. . . it's well known that our Rules of Civil Procedure are patterned very closely after the Federal rules, and it has been the practice of the Florida courts closely to examine and analyze the Federal decisions and commentaries under the Federal rules in interpreting ours. Jones v. Seaboard Coast Line RR Co., 297 So.2d 861, 863 (Fla.2d DCA 1974) (footnotes omitted).

See also Dickens v. State, 165 So.2d 811 (Fla.2d DCA 1964).

Although there are no Florida appellate decisions on the applicability of the rule to condemnation actions, Federal courts have consistently applied Federal Rule 26(b)(4) to these proceedings. U.S. v. 412.93 Acres of Land, etc., 455 F.2d 1242 (3d Cir. 1972). See also U.S. v. John R.-Piquette Corporation, 52 F.R.D. 370 (E.D.Mich.1971); U.S. v. 145.31 Acres of Land, etc., 54 F.R.D. 359 (M.D.Pa.1972). In a commentary on the Federal Rule, the Advisory Committee Notes prepared by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States say:

The provision is responsive to problems suggested by a relatively recent line of authorities. Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent and Condemnation cases.

In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand. A California study of discovery and pretrial in condemnation cases notes that the only substitute for discovery of experts' valuation materials is 'lengthy--and often fruitless--cross-examination during trial,' and recommends pretril exchange of such material. Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side. If the latter is foreclosed by a rule against discovery, then the narrowing of the issues and elimination of surprise which discovery normally produces are frustrated. 43 F.R.D. 211, 234 (1967) (citations omitted) (emphasis supplied).

In light of the above commentary on the Federal Rule, the express provisions of our rule as amended, and the purpose of the rules of discovery (i.e., to eliminate suprise, encourage settlement and assist parties in arriving at just results), it seems appropriate that Rule 1.280(b)(3) should be applied to the proceedings before us.

Petitioner's argument is bottomed on Pinellas County v. Carlson, 242 So.2d 714 (Fla.1970). In Carlson condemnation proceedings were instituted to acquire property for use in connection with parking facilities for a branch courthouse. After securing an order of taking, the condemnor sought to take the deposition of A. B. Fogarty, an appraiser who had been engaged by the land owners' attorney. The condemnees sought a protective order to prevent the taking of Fogarty's deposition. Alternatively, the condemnees sought to exclude from inquiry any matters relating to Fogarty's appraisal prepared for the land owners' attorney, as well as information given him by the attorney concerning the property's value. The trial court allowed the condemnor to examine the appraiser on all matters except communications between him and the land owners' attorney. On appeal, this court held the trial court erred in requiring the property owners to divulge the work product of their expert witness and reversed the judgment of the trial court. Carlson v. Pinellas County, 227 So.2d 703 (Fla.2d DCA 1969). This court certified the question involved there as one of great public interest, see Florida Constitution, Article V, Section 4(2), and the Supreme Court granted certiorari. Pinellas County v. Carlson, supra.

The Supreme Court held that 'the discovery sought by the (condemnor) . . . should have been denied, both because it is not consistent with the standards of fairness previously announced by this Court, and also...