by Robert Ambrogi - Editor
BullsEye Newsletter: November 2006
Putting to rest a question that had divided the state's courts,
the Florida Supreme Court ruled Nov. 2 that an expert may not testify on
direct examination that he relied on consultations with colleagues or other
experts in forming his opinion.
"Such testimony is inadmissible because it impermissibly permits the testifying
experts to bolster their opinions and creates the danger that the testifying
experts will serve as conduits for the opinions of others who are not subject
to cross-examination,"
the court said in a 5-2 decision.
But the court emphasized that its ruling was not meant to preclude experts from
relying on facts or data not independently admissible in evidence, provided the
facts or data "are a type reasonably relied upon by experts in the subject."
The ruling came in a medical malpractice case in which plaintiff Beth Linn alleged
that urologist Dr. Basil Fossum was negligent in failing to diagnose an injury
to Linn's ureter caused during a diagnostic laparoscopy performed by a second
doctor, Dennis Lewis.
Before trial, plaintiffs deposed the defendant's expert witness, Dr. Dana Weaver-Osterholtz.
She expressed the opinion that Dr. Fossum's
"watch and wait" approach complied with the prevailing
professional standard of care. She reached this conclusion, she
testified, after presenting Linn's case as a hypothetical scenario
to several other urologists whom she regarded as representative
of the general urologic community. All agreed that Dr. Fossum had
met the standard of care.
Following this deposition, the plaintiffs filed a motion to exclude testimony
by Dr. Weaver-Osterholtz that Dr. Fossum had met the standard of care. Plaintiffs
argued that her testimony would be a conduit for the inadmissible hearsay opinions
of other doctors. They also pointed to her deposition testimony that her personal
standard of care differed from that of the doctors she consulted. The trial court
denied the motion.
During the jury trial, Dr. Weaver-Osterholtz testified for the defense. On direct
examination, defense counsel asked for her opinion regarding the appropriate
standard of care. Over plaintiffs' objection, she testified that she presented
the case to five private-practice urologists and also to five staff urologists
at her medical school. Based on those discussions, she testified, she formed
the opinion that Dr. Fossum had met the appropriate standard of care.
The jury returned a verdict for Dr. Fossum, and after plaintiffs failed in their
post-trial motions, they appealed. An intermediate appellate court affirmed,
but the Supreme Court reversed.
Limits on Experts
Florida's evidence rules, the court noted, permit experts to rely on inadmissible "facts
or data" in forming their opinions. But there are important limits to this
general rule, the court said.
"Opinions of other experts who have no first-hand knowledge of the case
that are solicited by the testifying expert constitute neither 'facts' nor 'data,'" the
court said. "These hearsay opinions are neither recorded nor verifiable
objective evidence."
Further, said the court, an expert's opinion "may not merely be used as
a conduit for the introduction of the otherwise inadmissible evidence." To
do so would undermine the rules of evidence, it said.
"When an expert's testimony acts as a conduit for inadmissible hearsay,
the evidence is presented to the jury without affording the opposing party an
opportunity to cross-examine and impeach the source of the hearsay," the
court said.
Even though the rules permit experts to testify that they formed their opinions
in reliance on sources that contain inadmissible information, this does not extend
to conferring with colleagues.
"[W]hen the sources are the expert witness's colleagues who have responded
to a case-specific inquiry by the expert, source and substance are blended. Informing
the jury that the expert formed his or her opinion from consultations of this
nature indicates a group consensus based on hearsay."
A further problem with such testimony is that it is immune to challenge, the
court said. "The opposing party is unable to cross-examine the nontestifying
experts who participated in the consultation."
"We therefore hold as a matter of law that under the Florida Evidence Code
an expert is not permitted to testify on direct examination that the expert relied
on consultations with colleagues or other experts in reaching his or her opinion."
Because this case turned on the issue of the proper standard of care, the court
concluded, the trial court's admission of this testimony required it to vacate
the verdict and order a new trial.
The case is Linn v. Fossum, Florida Supreme Court No. SC05-134 (Nov.
2, 2006).
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