“Permitting the deposition of the opposing party’s retained, non- testifying expert under the circumstances presented constitutes a departure from the essential requirements of law.”
How later courts described this case
- “Permitting the deposition of the opposing party’s retained, non- testifying expert under the circumstances presented constitutes a departure from the essential requirements of law.”
Written by the judges who cited it.
The opinion
Third District Court of Appeal
State of Florida
Opinion filed September 11, 2024.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-1451
Lower Tribunal No. 20-17447-CA-01
________________
Fernando C. Gomes,
Petitioner,
vs.
Victor Maniglia,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County,
Reemberto Diaz, Judge.
The Hink Law Firm, P.A., and Ronald R. Hink, for petitioner.
J. Muir & Associates, P.A., and Jane W. Muir, for respondent.
Before LOGUE, C.J., and SCALES and GORDO, JJ.
PER CURIAM.
Petitioner Fernando C. Gomes, a co-defendant below, seeks certiorari
review of the trial court’s August 5, 2024 order denying Gomes’s motion for
a protective order that permits respondent Victor Maniglia, the plaintiff below,
to depose Gomes’s retained, non-testifying expert. We have jurisdiction. See
Bailey v. Miami-Dade Cnty., 186 So. 3d 1044, 1045 (Fla. 3d DCA 2015).
Maniglia’s complaint alleges a variety of claims against Gomes that
stem from purported violations of Florida’s Adult Protective Services Act.
Gomes retained Dr. Tracey Henley, a psychologist, who performed a
psychological examination of Maniglia.1 Maniglia then not only requested
and obtained Dr. Henley’s report and other records relating to the
examination,2 but sought also to depose Dr. Henley despite Gomes not
identifying Dr. Henley as Gomes’s testifying expert witness. Gomes moved
for a protective order to prevent the deposition, but the trial court denied
Gomes’s motion.
While Florida Rule of Civil Procedure 1.280(b)(5)(B) allows for a party
to depose another party’s non-testifying expert witness, the rule plainly
1
See Fla. R. Civ. P. 1.360(a)(1) (“A party may request any other party to
submit to . . . examination by a qualified expert when the condition that is the
subject of the requested examination is in controversy.”).
2
See Fla. R. Civ. P. 1.360(b) (“If requested by the party to whom a request
for examination or against whom an order is made under subdivision
(a)(1)(A) or (a)(1)(B) or by the person examined, the party requesting the
examination to be made shall deliver to the other party a copy of a detailed
written report of the examiner setting out the examiner’s findings, including
results of all tests made, diagnosis, and conclusions, with similar reports of
all earlier examinations of the same condition.”).
2
requires the party seeking to depose the non-testifying expert to make a
showing of exceptional circumstances.3 In denying Gomes’s motion for a
protective order, the trial court determined that Dr. Henley’s rule 1.360
compulsory medical examination of Maniglia, in and of itself, constituted
sufficient “exceptional circumstances” that entitled Maniglia to depose Dr.
Henley. This determination constituted a departure from the essential
requirements of law resulting in irreparable harm. See Bailey, 186 So. 3d at
1045 (“Permitting the deposition of the opposing party’s retained, non-
testifying expert under the circumstances presented constitutes a departure
from the essential requirements of law.”); Royal United Props., Inc. v. Royal,
370 So. 3d 1020, 1024 (Fla. 6th DCA 2023) (“A departure from the essential
requirements of law, alternatively referred to as a violation of clearly
established law, can be shown by a misapplication of the plain language in
a statute.” (quoting Gonzalez v. State, 15 So. 3d 37, 39 (Fla. 2d DCA 2009))).
3
See Fla. R. Civ. P. 1.280(b)(5)(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.”).
3
Contrary to the trial court’s determination, nothing in rule 1.360(b)
authorizes the deposition of a non-testifying defense expert who conducted
a compulsory medical examination of a plaintiff. Because Maniglia did not
make any showing of exceptional circumstances as required by rule
1.280(b)(5)(B), the trial court departed from the essential requirements of law
by denying Gomes’s motion for protective order. We, therefore, grant the
petition and quash the August 5, 2024 order.
Petition granted. Order quashed.
4