In an opinion released today, Thursday, November 2, 2006, the Florida Supreme Court spoke to Experts who rely on curbside consults with other Experts in reaching their own Opinions. The issue arose under the Florida Evidence Code and the Court carefully integrated similar requirements found in the Federal Rules of Evidence. The specific issue was the standard of care in a medical malpractice case, which the Supreme Court addressed in a holding that will reverberate throughout the proffered testimony of Insurance Expert Witnesses and of all Experts, in Download Linn_v. Fossum (Florida Supreme Court Case No. 05-134, Opinion Filed Thursday, November 2, 2006).pdf.
The issue addressed by the Florida Supreme Court this day, the majority says, is to "decide as a matter of law whether the rules of evidence allow an expert to testify on direct examination that he or she consulted with other experts". The Expert Witness in that case described her conversations with other physicians as "curbside consults". The Court holds that this type of a consult is not admissible on direct examination in which the Expert Witness offers her or his Opinions.
This prohibition on the admissibility on direct examination of the particular Expert's curbside consults or inadmissible hearsay conversations with other Experts, runs afoul of Section 90.704 of the Florida Evidence Code in today's decision. That provision, reprinted below, allows an Expert to base an opinion on "facts or data" perceived by the Expert, or made known to the Expert, at or before trial. These "facts or data" do not need to be admissible in evidence, if they are of a type reasonably relied on by Experts in the field.
"Opinions of other experts who have no first-hand knowledge of the case that are solicited by the testifying expert constitute neither 'facts' nor 'data'," the Supreme Court of Florida held today. The Court pointedly observed that Section 90.704 "was modeled after Federal Rule of Evidence 703", reprinted below, which was discussed at length in the Court's opinion. In the end, the Florida High Court's holding concentrates, as it has to concentrate, on Florida law in this Florida case: "We therefore hold as a matter of law that under the Florida Evidence Code an expert is not permitted to testify on direct examination that the expert relied on consultations with colleagues or other experts in reaching his or her opinion."
It is readily apparent from the majority opinion in this new Florida Supreme Court case that the majority likely intends for its holding to be applied beyond cases of medical malpractice. Further, readers can decide for themselves if the provisions quoted by the Florida Supreme Court Justices from Florida Evidence and from Federal Evidence, below, will lead to the same result under the Federal Rules of Evidence:
Florida Statute (adopted long ago as a rule by the Supreme Court of Florida exercising its exclusive rule-making authority) Section 90.704 provides:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the field to support the opinion expressed, the facts or data need not be admissible in evidence.
Federal Rule of Evidence 703, which the Florida Supreme Court noted was the basis for Florida's Section 90.704, is quoted as follows in footnote 3 of the majority opinion:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
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