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Florida Fifth DCA rules in medical negligence case that plaintiff’s expert who relied in part on an inference to render an opinion on causation did not engage in impermissible inference stacking because the opinion was also drawn from direct evidence

On January 21, 2022, in Dumigan v. Holmes Regional Medical Center, Inc., No, 5D21-1087, the Florida Fifth DCA reversed a directed verdict for the defendant hospital in a medical negligence case. The defendant had successfully argued before the trial court that the jury could only find for the plaintiff through an impermissible stacking of inferences by the plaintiff’s expert witness. The defendant cited LaBarbera v. Millan Builders, Inc., 191 So. 2d 619, 621 (Fla. 1st DCA 1966) for the proposition that “stacking the inference of the existence of an essential fact to be drawn from circumstantial evidence cannot be made the basis of a further inference of an essential fact, unless it can be said that the initial inference was established to the exclusion of any other reasonable inference.” However, the Fifth DCA noted that LaBarbera recognized a distinction when the rule is applied to expert testimony: even if an expert relies, in part, on an inference to render an opinion on causation, that opinion does not constitute impermissible stacking when it is also drawn from direct evidence. The Fifth DCA explained: “LaBarbera articulated the fundamental Catch-22 created in this context: to generate an opinion, the expert must rely to some degree on the assumption underlying the hypothetical question. As a result, unless an expert opinion is based purely on speculation, impermissible stacking will not be found in this context.” The Fifth DCA noted that the Florida Supreme Court reinforced this proposition, particularly in the context of medical experts providing a differential diagnosis, in Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264 (Fla. 2003).