Pevsner v. Frederick

Citations: 656 So. 2d 262; 1995 WL 366340Docket: 94-3134

Court: District Court of Appeal of Florida; June 21, 1995; Florida; State Appellate Court

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Petitioner N. Henry Pevsner, M.D. sought certiorari review from the District Court of Appeal of Florida regarding an order imposing sanctions for discovery violations in a personal injury case. The trial court had awarded attorney's fees and costs to the plaintiff due to Pevsner's refusal to answer deposition questions and his failure to appear for a re-deposition. However, the order explicitly stated that Pevsner was not held in contempt, and there was no finding of willful disobedience. The appellate court granted the petition and quashed the trial court's orders, determining that sanctions against a nonparty for discovery violations require a contempt finding, as outlined in Rule 1.380(b)(1) of the Florida Rules of Civil Procedure. The court noted that since Pevsner was not found in contempt, the imposition of sanctions was unwarranted and constituted a departure from legal requirements. The ruling aligns with precedent indicating that the only sanction for a nonparty deponent's failure to comply is a contempt finding. Judge Farmer concurred, emphasizing that the trial court's order lacked a contempt finding while still imposing monetary sanctions, which was improper.

The party that designates an expert witness in civil actions is responsible for the expert's conduct, particularly regarding scheduling and availability, and must ensure the expert's timely appearance for depositions or trial testimony. If this responsibility is not met, the designating party may face consequences, such as incurring costs or losing the right to call the expert to testify. Although there is no direct obligation to call an expert witness under civil rules, establishing certain facts may necessitate expert testimony. The choice of expert specialty rests with the party bearing the burden of proof, unlike fact witnesses, whose necessity is determined by the events of the case.

The market for expert witnesses is competitive, allowing parties to negotiate contracts that include compliance with discovery processes. Rule 1.280(b)(4) outlines the procedure for disclosing expert witnesses and mandates that the party seeking discovery pay the expert a reasonable fee for their time, unless manifest injustice would result. This payment obligation is on the designating party, while the deposing party may be required to reimburse the designating party for expenses incurred in obtaining the expert's facts and opinions.

Rule 1.390(c) also governs expert witness fees for depositions, allowing the court to determine a reasonable fee and payment timeline if the parties cannot agree. The provisions in these rules emphasize the designating party's responsibility for the expert while allowing for the payment of expert fees from one party to another during pretrial depositions.

Rule 1.380 addresses failures in discovery, allowing for contempt powers against deponents who refuse to answer after a court directive. The circuit court may issue orders to compel compliance and require deponents to pay associated costs. However, depositions of expert witnesses are governed by rule 1.280(b)(4)(B) and can occur without a court order. If a nonparty expert fails to comply with a deposition order, rule 1.390 does not explicitly grant the court authority to compel the expert to pay costs resulting from noncompliance, implying a need for the expert to be under the court's jurisdiction for monetary liability. While the rules do not expressly provide for taxing costs or striking an expert's testimony, the trial judge has discretionary power to regulate expert witness conduct and may exclude witnesses for noncompliance with pretrial orders. The right to call an expert at trial hinges on their compliance with discovery. Should an expert fail to comply, the court may either exclude them from testifying or assess costs against the party that designated the expert. This responsibility encourages parties to ensure their experts comply with discovery obligations. The context of Dr. Pevsner’s petition for common law certiorari is discussed, noting that such relief is unavailable if the petitioner has an adequate legal remedy, distinguishing this case from others where disclosure of critical information could not be remedied by appeal.

The order in this case pertains to the assessment of costs and fees as a penalty for an expert's nonappearance at a deposition, rather than the disclosure of protected information. A nonparty witness found in contempt for failing to comply with a court order has the right to appeal the contempt order, including cases where monetary remedies are imposed against them. The court emphasizes that this right to review should not rely on discretionary writs, as it is important for any party facing cost taxation or monetary penalties to have an appeal option. The order in question is seen as final regarding the expert's monetary liability, warranting immediate appeal. The excerpt notes that any defect in the appeal's timing was resolved when the trial court set the award amount, similar to a precedent case. The sanctions imposed stemmed from the expert's failure to comply with a resubmission order for deposition. The text also clarifies the dual meanings of the term "sanction," suggesting "remedy" as a more precise term. Additionally, it discusses the rules regarding expert witness testimony and the relevance of incurred fees related to their nonappearance. The definitions within the discovery rules indicate a clear distinction between parties, deponents, and expert witnesses.