31 flavors of experts

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 25

JUNE 21, 2024

NO DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW WHEN TRIAL COURT COMPELLED PRODUCTION OF INFORMATION RELATED TO FINANCIAL RELATIONSHIP BETWEEN PLAINTIFF’S ATTORNEY AND TREATING PHYSICIAN UNDER THESE FACTS

Tillman v. Sweat, 49 Fla. L. Weekly D1287 (Fla. 5th DCA June 12, 2024):

In this automobile accident case, the plaintiff listed four treating physicians on her expert disclosure, stating that each would testify about their treatment, and “offer opinions on causation and/or damages including, but not limited to, diagnosis, prognosis, impairment, permanency, disability, aggravation of any pre-existing conditions, costs, reasonableness, necessity, and relationship of past and future medical care.”

The plaintiff also disclosed several retained experts. All the experts were said to have reviewed “all the medical records pertaining to her care and treatment.

The defendant sought discovery related to the claimed financial bias of the treating physicians, seeking information concerning whether the plaintiff or any other Morgan and Morgan clients had been referred to the treating physicians, and seeking documents regarding any referral relationship between the attorneys and the treating physicians.

The plaintiff objected based on Worley. The court overruled the objections, and the plaintiff sought a writ of certiorari.

Certiorari is an extraordinary remedy. To warrant relief, the party must establish: (1) the trial court’s order departed from the essential requirements of law, (2) it resulted in material injury for the remainder of the case; and (3) show that the injury cannot be corrected on post-judgment appeal.

The last two requirements are often combined into the concept of irreparable harm, which is jurisdictional. The court must find irreparable harm before deciding whether there has been a departure from the essential requirements of law.

The plaintiff argued that the discovery was forbidden by Worley. However, the court said that Worley only addresses discovery of certain financial bias-related materials pertaining to a plaintiff’s treating physician. Thus, the plaintiff’s argument rested entirely upon her premise that the experts she disclosed as “treating physicians” were indeed treating physicians.

This was where the court found the plaintiff’s argument failed.

The party’s own description of certain experts as “treating physicians” is not determinative. Rather, it is the subject matter of the witnesses’ intended testimony as set forth in the disclosure that guides the court’s determination.

Expert witnesses are those whose scientific, technical, and other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue. Testimony presented by a treating physician blurs the boundary between fact testimony and expert testimony because treating physicians, like retained experts, possess the expert knowledge contemplated by section 90.702, and that knowledge informs the treating physician’s testimony.

Treating physicians, in some respects, are fact witnesses because their testimony arises from their first-hand participation in the medical treatment of the plaintiff. It is entirely possible that even a treating physician’s testimony could cross into the line of expert testimony.

If the treating physician gives a medical opinion formed during the course and scope of treatment in the fulfillment of their obligation as a physician, then the physician is a fact witness, albeit a highly qualified one.

If, however, the treating physician gives an opinion formed based on a later review of medical records for the purpose of assisting the jury to evaluate the facts in controversy, the physician acts as an “expert” witness and should be considered as such.

Here, because the plaintiff disclosed the treating physicians as intending to offer opinions on their care and treatment and offer opinions on causation and/or damages, including but not limited to impairment, permanency, disability, and the relationship of past and future medical care, that opinion testimony exceeds the scope of a “fact witness treating physician” whose testimony related to diagnosis and treatment of injury or disease.

Because the intended testimony addressed litigation-related issues, the treating physicians were “hybrid” (witnesses offering testimony on the plaintiff’s medical history and course of treatment while also offering opinions regarding future medical treatment and permanency). As such, they were subject to financial bias discovery.

Be mindful of what you put in your expert disclosures.