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By Debra P. Klauber, Esq.

FOURTH DISTRICT LIMITS EXPERT DISCOVERY THAT IS DIRECTED TO A NON-PARTY BUSINESS ENTITY WITH WHICH THE EXPERT IS AFFILIATED. 

Orthopedic Center of South Florida v. Sode, No. 4D18-3478, 44 Fla. L. Weekly D1480 (Fla. 4th DCA June 12, 2019).

The discovery rules are designed to strike a balance between a party’s need for information to show a medical expert’s potential bias and the expert’s own right to be free from burdensome and intrusive discovery requests. The Fourth District has extended that protection to the non-party corporate or business entity with which the medical expert is affiliated. The court also cautioned trial counsel from utilizing “novel discovery methods” in an effort to circumvent the limits of authorized discovery, and cautioned trial courts from approving such methods where the rules already allow parties to explore (a) financial interests of medical witnesses, and, (b) the volume of referrals to those witnesses.

FOURTH DISTRICT JOINS FIFTH DISTRICT IN ASKING FLORIDA SUPREME COURT TO CLARIFY WHETHER DEFENDANTS AND THEIR LAWYERS AND INSURERS CAN BE PROTECTED FROM DISCLOSING INFORMATION ABOUT THEIR RELATIONSHIPS WITH MEDICAL EXPERTS.

Dodgen v. Grijalva, No. 4D19-1010, 44 Fla. L. Weekly D1617 (Fla. 4thDCA June 26, 2019).

In 1999, the Florida Supreme Court held that information about the relationship between an expert witness and a defendant-insurer, including the frequency of referrals and the payments made, was discoverable. In 2017, the Florida Supreme Court limited that holding, finding that the financial relationship between a plaintiff’slaw firm and treating physicians was not discoverable, because the question of whether a plaintiff’s attorney referred a client to a particular physician for treatment was protected by the attorney-client privilege. The Fifth District recently asked the Florida Supreme Court to clarify whether a defense law firm should have to disclose its financial relationship with an expert witness who performs independent medical examinations for litigation purposes. Now, the Fourth District has similarly asked the Florida Supreme Court to clarify whether a defendantinsurercan be required to disclose its financial relationship with medical experts who perform independent medical examinations. It appears that the Florida Supreme Court will need to provide clarity on whether such discovery requests exceed the proper scope of expert discovery, invade the attorney-client privilege, or are calculated to lead to the discovery of admissible evidence.

FOURTH DISTRICT DISAPPROVES “TRIAL BY AMBUSH” AND GRANTS NEW TRIAL AFTER EXPERT IS PERMITTED TO TESTIFY ABOUT AN MRI HE REVIEWED FOR THE FIRST TIME DURING THE TRIAL.

Gurin Gold, LLC v. Dixon, No. 4D18-2156, 44 Fla. L. Weekly D1789 (Fla. 4thDCA July 10, 2019).

The Fourth District reaffirmed its long-standing belief that trial lawyers should be able to rely on discovery deadlines and not be confronted with additional undisclosed testimony at the time of trial. In this case, the plaintiff’s expert gave limited opinions in his deposition, and had not reviewed an MRI from an earlier accident. Long after the discovery deadlines, after defense counsel had explained his theory of the case to the jury, and in the middle of the trial, that same expert reviewed the earlier MRI and was ultimately permitted testify about it to the jury. The Fourth District reversed the trial judge’s determination that the testimony did not constitute “changed opinion,” noting that the defendants and their counsel were confronted with “new and undisclosed testimony during trial and after opening statements.” The court held that the defense was entitled to a new trial because of the prejudice resulting from the plaintiff’s tactics.  The new and undisclosed testimony was not only a surprise, but the defendants had to cross examine the expert without the benefit of having their own witnesses review and rebut that testimony.

FIFTH DISTRICT ASKS THE FLORIDA SUPREME COURT TO REVISIT THE SUMMARY JUDGMENT STANDARD IN CASES WHERE VIDEO SURVEILLANCE CLEARLY CONTRADICTS THE OPPOSING PARTY’S EVIDENCE.

Lopez v. Wilsonart, LLC, No. 5D18-2907, 44 Fla. L. Weekly D1808 (Fla. 5thDCA July 12, 2019).

Where the testimony of one party and a number of eyewitnesses is contradicted by video evidence, it usually creates question of fact to be presented to a jury in Florida, as it is not proper for the court to adjudge the credibility of witnesses or weigh the evidence. However, in light of the technological advancements and the “clear, objective, neutral” video and digital evidence now commonly available, the Fifth District has asked the Florida Supreme Court to answer the following question:

Should there be an exception to the present summary judgment standards that are applied by state courts in Florida that would allow for the entry of final summary judgment in favor of the moving party when the movant’s video evidence completely negates or refutes any conflicting evidence presented by the non-moving party in opposition to the summary judgment motion and there is no evidence or suggestion that the videotape evidence has been altered or doctored?

By way of comparison, the appellate court notes, a federal court is permitted to assess the proof and grant a summary judgment where the record, as a whole, could not lead a rational trier of fact to find for the non-moving party.

FIRST DISTRICT HOLDS THAT THERE IS NO CAUSE OF ACTION UNDER CHAPTER 415 OF THE FLORIDA STATUTES WHERE THE CLAIM IS BASED ON THE PROVISION OF MEDICAL CARE AND SERVICES AND IS, THEREFORE, ENCOMPASSED BY CHAPTER 766.

Specialty Hospital-Gainesville, Inc. v. Barth, No. 1D18-511, 44 Fla. L. Weekly D1819 (Fla. 1stDCA July 15, 2019).

The First District provided some well-need clarification with respect to the interplay between a medical negligence claim and a claim under Florida’s Adult Protective Services Act. As explained by the court, the purpose of Chapter 415 is to protect vulnerable adults who are in need of services, not to provide a duplicative remedy for claims involving medical malpractice. As the court also noted, Chapter 415 was not put in place to criminalize health care providers, and cannot be used to transform a medical negligence case into a claim against a health care provider as a “perpetrator” of abuse. Plainly stated, if the claim involves medical negligence, which requires compliance with the pre-suit procedures and other provisions of Chapter 766, the claim cannot be asserted under Chapter 415; if the claim asserts non-medical negligence or criminal conduct, it can be asserted under Chapter 415. The court did not go so far as to hold that claims under Chapter 415 could neverbe asserted against a hospital or health care provider, but did explain that such claims must be limited to those involving allegations of “non-medical abuse or neglect.”

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