Florida High Court Curbs Expert Testimony

By Robert Ambrogi Esq
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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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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