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Florida Supreme Court rules that testimony of medical negligence plaintiff's treating physicians was not subject to "one expert per specialty rule"

On March 22, 2018, in Gutierrez v. Vargas, No. SC15-1924, the Florida Supreme Court quashed a Florida Third DCA decision remanding a medical negligence case for a new trial. The Third DCA decision was based in part on a determination that the prevailing plaintiff violated the “one expert per specialty rule” by having four pathologists testify on her behalf. Two of the pathologists were treating physicians who explained their role in the plaintiff’s care and their medical conclusions arrived at during that care. Of the remaining two pathologists, one testified in the plaintiff’s case-in-chief and one testified as a rebuttal witness. The plaintiff argued that the Third DCA’s decision conflicted with Cantore v. West Boca Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th DCA 2015), and other cases, because it improperly limited the testimony of treating physicians and rebuttal experts. In its opinion, the Florida Supreme Court explained at length the difference between expert witnesses and treating physicians and emphasized that while treating physicians may offer testimony about their medical decision-making and the basis for such decisions, their testimony is limited to actions they took and their thought process at the time that the relevant conclusions were reached. See Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186 (Fla. 3d DCA 2005). As for the pathologist who testified as a rebuttal witness, the Florida Supreme Court concluded that his testimony was offered on discrete subjects not touched upon by the expert who testified in the case in chief and therefore was neither cumulative nor improper bolstering. The Supreme Court quoted Mendez v. John Caddell Constr. Co., 700 So. 2d 439, 440-41 (Fla. 3d DCA 1997) in this regard: “[t]rial courts have broad discretion to admit rebuttal testimony, and “a trial court abuses that discretion when it limits non-cumulative rebuttal that goes to the heart of the principal defense.”