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Fifth District Court of Appeal reverses a judgment in favor of medical negligence plaintiff and remands for new trial because of erroneous admission of surprise testimony from plaintiff's expert

On January 20, 2017, in Doctors Company v. Plummer (Case No, 5D15-1963), the Fifth DCA reversed a judgment in a favor of medical negligence plaintiff and remanded for new trial because of an erroneous admission by the trial court of surprise testimony from plaintiff's expert. At trial, the plaintiff's attorney advised the jury during opening statement that the defendant doctor should not have given Levaquin to the decedent, that Levaquin was not an FDA approved drug for the treatment of ear infections and that the defendant doctor failed to follow the manufacturer's instructions. The defense objected to these statements because there had been no pretrial deposition testimony by any defense expert regarding Levaquin. The trial court overruled the objection and subsequently allowed the plaintiff's medical experts to testify about the defendant's alleged deviation from the standard of care in prescribing the Levaquin and also allowed the Levaquin package insert to be admitted into evidence.

The 5th DCA noted that the analysis of the Florida Supreme Court in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), which had applied to an undisclosed expert, applied equally to situations involving undisclosed testimony of a disclosed expert. In Binger, the Florida Supreme Court had held that a trial should consider several factors in determining whether an undisclosed witness's testimony would not not substantially endanger the fairness of the proceeding, and if no such substantial danger exists, the trial court should allow the testimony. The factors included: (1) the surprise to the objecting party; (2) the objecting party's ability to cure the prejudice or his or her independent knowledge of the existence of the witness; (3) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (4) the possible disruption of the orderly and efficient trial of the case.

The 5th DCA concluded that the defendant had been unfairly prejudiced by the surprise testimony because the defendant was denied the opportunity to explore potential defenses. In addition, the 5th DCA concluded that the trial court's error had been compounded by the admission into evidence of the package insert as substantive evidence, because the package insert was essentially a statement of fact or opinion on a subject of specialized knowledge, akin to a learned treatise, and should only have been available for use in cross-examination, not as substantive evidence. The 5th DCA acknowledged that there was some conflict among courts in other states as to whether package inserts can be admitted as substantive evidence with respect to the issue of standard of care.

On a separate issue, the 5th DCA ruled that the trial court had erroneously excluded the testimony of a defense expert, an emergency room physician, on the basis that he was not a skilled witness.

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