Articles Posted in Expert Testimony

Earlier this month, a Florida appellate court issued a written opinion in a personal injury case brought against a woman who developed lung cancer and chronic obstructive pulmonary disease (COPD). The Florida personal injury lawsuit was filed against the manufacturer of the cigarettes to which the woman claimed she became addicted, which subsequently caused her illness. The case required the appellate court to review the evidentiary rulings made by the lower court and determine if they were proper. Ultimately, the court concluded that the rulings below were not proper and necessitated that the plaintiff be granted a new trial.

AshtrayThe Facts of the Case

The plaintiff’s claim against the defendant was that she became addicted to the defendant’s cigarettes and as a result of that addiction developed lung cancer and COPD. During trial, the plaintiff called the pulmonologist who treated her over the years to establish that she was addicted to cigarettes. However, when the defendant objected to the question of whether the pulmonologist thought the plaintiff was addicted to cigarettes, the court sustained the objection, finding that he was not qualified to offer his opinion about any potential addiction.

Later in the trial, when it was the defendant’s turn to cross-examine the pulmonologist, the defense attorney asked whether, in the pulmonologist’s opinion, the plaintiff could have stopped smoking whenever she became “sufficiently motivated to do so.” The plaintiff unsuccessfully objected, and the pulmonologist was permitted to answer in the affirmative.

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pediatrics hospitalAlthough it’s common knowledge among Florida’s medical malpractice practitioners that state law requires a complaint for medical negligence to be accompanied by an expert affidavit, it is not uncommon for some to not realize that simply having the affidavit is not necessarily sufficient to comply with the requirements of the law. Indeed, courts in our state regularly dismiss medical negligence cases supported by an affidavit because the plaintiff fails either to provide sufficient notice to the defendant of his or her intent to sue or to provide the defendant with sufficient access to information about the expert during this notice period. These subsidiary requirements under Florida’s medical negligence laws were at issue in a recent decision from Florida’s First District Court of Appeal, Morris v. Muniz.

Morris arose from an alleged act of medical negligence that occurred at Gulf Coast Medical Center. Specifically, the plaintiff alleged that the negligence of various medical professionals resulted in the death of her daughter, who died three days after the plaintiff gave birth to her. Following her loss, the plaintiff initiated a wrongful death lawsuit against various defendants, including Gulf Coast and several medical professionals involved in the birth. Shortly after the lawsuit was filed, the defendants moved to dismiss, arguing that the plaintiff failed to comply with pre-suit notice and investigation requirements under Fla. Stat. Section 766.205(2). The plaintiff opposed the motion, but the trial court dismissed the action, finding that the plaintiff failed to provide the defendants with reasonable access to information regarding her expert during the pre-suit investigation period.  The plaintiff then brought the current appeal.

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crash-car-1-1180905-1920x1440-300x225In certain legal areas in which expert testimony is of importance for determining liability, litigators will often form relationships with particular experts who provide testimony in their cases. However, a familiarity between experts and attorneys can raise issues regarding the propriety of the testimony provided. Indeed, many may question whether the testimony being provided by a purported expert is genuine or merely the function of an established course of prior dealings. This dynamic was addressed in a recent decision from Florida’s Fifth District Court of Appeal, Vazquez v. Martinez.

Vazquez arose from a 2007 rear-end collision. The car of the plaintiff in this case was stopped at a red light when her car was rear-ended by a vehicle being driven by the defendant. The plaintiff brought suit against the defendant for damages arising from the collision. The case proceeded to trial. At trial, the plaintiff sought to introduce evidence that payments that totaled over 700,000 dollars had been made by the defense or its agents to the expert witness testifying on behalf of the defendant over the past three years. The trial court permitted this evidence, and ultimately the jury returned a verdict in favor of the plaintiff. On appeal, the defendant argued that admission of the testimony was improper. The Fifth District disagreed.

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pediatrics-1529152-1920x1280-300x200In a recent decision, Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014), the Supreme Court of Florida ruled that in a medical negligence action, “a physician cannot insulate himself . . . from liability . . . by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” Prior to the Supreme Court’s repudiation of this type of testimony, trial courts typically permitted experts to opine about this issue, leaving the propriety of numerous medical malpractice decisions in dispute. Indeed, the Fourth District Court of Appeal was recently tasked with addressing this issue in Cantore ex rel. Felix v. West Boca Med. Ctr., Inc., in which the court needed to determine whether a trial court’s admission of a subsequent treating physician’s testimony required a new trial.

Cantore arises from an adverse jury verdict in a medical malpractice case brought by the parents of a minor against West Boca Medical Center and Variety Children’s Hospital (a.k.a. Miami Children’s Hospital). Two years prior to the incidents at the heart of this case, the minor was diagnosed with hydrocephalus, which is a condition characterized by the excessive buildup of cerebral spinal fluid in the cranium. The minor’s case of hydrocephalus was caused by a benign tumor that blocked the outflow of fluid from her cranium. At that time, the minor underwent a procedure to correct the blockage. However, scar tissue began to develop and was uncovered by a CT scan performed about two years later at West Boca, showing that spinal fluid had begun to accumulate again. A doctor at Miami Children’s scheduled the minor for another corrective procedure.

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staircase-2-1566819Although we associate expert testimony with complex cases involving medicine or large explosions, expert testimony can be important in virtually any type of case, as long as the testimony will provide a jury with useful information that they may not possibly understand in the absence of expert guidance. For instance, expert testimony is used in many personal injury cases, and not only for assessing the nature of a plaintiff’s injury. Indeed, experts are also often enlisted to provide testimony regarding the circumstances of one’s injury. This sort of expert testimony was the subject of Holderbaum v. Carnival Corp., a recent decision from the United States District Court for the Southern District of Florida.

Holderbaum arose from an injury allegedly sustained abroad a Carnival cruise ship in 2013. The plaintiff claims that as she was about to descend a staircase on the ship, her shoe got stuck in the metal “wear-strip” at the top of the stairs. As a result, she fell down the stairs and suffered an injury to her lower leg and ankle. The plaintiff alleges that the metal strip was raised and that her shoe got caught in this gap between the metal strip and the carpeting. The plaintiff retained an engineer to examine the area where the injury occurred and provide analysis of the circumstances of her fall. The expert provided a report, and Carnival, the defendant, moved to exclude the expert evidence.

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LawDuring the discovery process, the sharing of information is considered normal, if not the entire purpose of the endeavor. Indeed, the exchange of evidence often promotes bringing the truth to light efficiently or, at the very least, narrowing the issues in contention. However, some information remains beyond the scope of this liberal sharing process, and litigants will often fight vigorously to preserve the information over which they still have an entitlement to privacy. This situation arose in a recent case that was appealed to Florida’s Third District Court of Appeal, Bailey v. Miami-Dade County.

Bailey arose from an alleged act of negligence at Mt. Sinai Medical Center, involving Miami-Dade Fire Rescue employees and Mt. Sinai staff who dropped a patient who had suffered cardiac arrest aboard a cruise ship from a gurney. The patient later died, and her husband brought a wrongful death action against Mt. Sinai, alleging medical negligence and ordinary negligence. After commencing the action, the complaint was amended to include a count of ordinary negligence against Miami-Dade County. Prior to filing this action, the plaintiff retained a physician to prepare a medical affidavit, which is required for all actions involving medical negligence in Florida. During the discovery process, the physician’s name was disclosed to the defendants on expert interrogatories. The existence of the physician’s affidavit was also disclosed, but the plaintiff refused to proffer the affidavit, asserting work product privilege. Shortly thereafter, Mount Sinai settled, leaving Miami-Dade as the only defendant and ordinary negligence as the sole claim. When the trial court issued an order directing the parties to submit their witness lists, the physician’s name was not listed on the expert witness disclosure list, even though he had been listed as a expert who would testify on the earlier expert interrogatories. The defendant immediately sought to depose the physician, and the plaintiff refused, again citing work product privilege. The plaintiff sought a protective order, but the trial court denied the request, leading to the current appeal.

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Although changes to the law of evidence do not typically engender much in the way of debate, Florida litigants are now seeing the harsh realties that can be associated with revisions that typically go unnoticed. In Perez v. BellSouth Telecommunications, Inc., a panel of judges for the Third District Court of Appeals unanimously affirmed a trial court decision to exclude testimony from the plaintiff’s personal obstetrician, a physician with over two decades of experience, in part because of recent legislation that placed stricter limits on the admissibility of expert testimony.

This decision follows passage of Florida House Bill 7015, which amended Section 90.702 of the Florida Evidence Code, the provision governing the admissibility of expert testimony in both civil and criminal litigation. Prior to passage of HB 7015, courts in Florida applied what is commonly known as the “Frye Standard.” Pursuant to this standard, Florida Courts permitted the inclusion of expert opinion testimony so long as the testimony was based on scientific methods that were sufficiently established and had gained general acceptance in the particular field to which they belong.

HB 7015, however, did away with Frye and incorporated the “Daubert Standard,” a stricter evidentiary rule that has been utilized in Federal Courts since 1993. Daubert, unlike Frye, places greater emphasis on the scientific methodology from which an expert’s opinion is formed, and induces greater exclusion of evidence that is not derived from empirical testing, peer review, or controlled examination. Accordingly, even if an expert’s testimony may be relevant and based on sound reasoning or ample practical experience, it may still be excluded for a lack of scientific verifiability.

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