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January 1, 2014
S. Court decides not to adopt med mal expert witness law as a procedural rule

By Jan Pudlow
Senior Editor

Stopping short of declaring unconstitutional legislative changes to the Florida Evidence Code about out-of-state expert witnesses in med mal cases, the Florida Supreme Court declined to adopt procedural rule changes to accompany the new law “due to the concerns raised.”

Some of those concerns came from The Florida Bar Board of Governors. A year ago, in December 2012, board members voted 34-5 to recommend the court not adopt the law into the evidence rules. Board members said this is one of the rare instances when statutory changes to the evidence code should not also be included in the evidence rules because it is unconstitutional, has a chilling effect on the ability to obtain expert witnesses in medical cases, and is prejudicial to the administration of justice.

Ted Eastmoore At issue is a law passed in 2011 — section 766.102(12) “Medical negligence; standards of recovery; expert witness” — that requires out-of-state experts in medical and dental malpractice cases register with the Florida Department of Health, pay a $50 fee, and be subject to possible disciplinary review by the department, including allegations that they provided misleading testimony.

Designed to help doctors defend themselves in malpractice cases, the law was backed by the Florida Medical Association, was a priority for Senate President Don Gaetz, and was signed into law by Gov. Rick Scott.

The December 12 per curiam opinion in Case No. SC13-98, In Re: Amendments to the Florida Evidence Code, noted the Board of Governors’ concerns that the provision is unconstitutional, that the Bar’s Code and Rules of Evidence Committee voted 14-13 to recommend the statutory provision be adopted as a rule of procedure “to the extent that it is procedural,” and that numerous comments were filed, all in opposition.

“After hearing oral argument and carefully considering the committee’s recommendation in light of those comments, we decline to follow this recommendation due to the concerns raised. Accordingly, the court declines to adopt the legislative changes to the Code or newly created section 766.102(12), Florida Statutes, to the extent they are procedural.”

Justice Charles Canady was the lone dissenter, offering this two-sentence opinion: “I would adopt each of the rule amendments recommended by the Code and Rules of Evidence Committee. I therefore dissent from the majority’s rejection of those proposals.”

Jeff Scott, general counsel for the Florida Medical Association, told the News Service of Florida that the Supreme Court’s opinion does not change the status quo, and that he expects the courts to enforce the law because it is a substantive, not procedural, matter. (The News’ attempts to reach Scott were unsuccessful.)

Ted Eastmoore, chair of the Bar’s Trial Lawyers Section — made up of 6,000 lawyers practicing plaintiff, defense, commercial, labor, and all facets of trial law — said the opinion was carefully written, but did not say the law was unconstitutional.

“The court declined to adopt a rule that parroted the statute. The court left for another day whatever challenges may be brought, whether it’s denial of access or equal protection,” Eastmoore said.

“The court will have to decide that when the issue is ripe. The way that is going to happen is, in a med mal case, someone will have an out-of-state expert not licensed in Florida. The other side will move to exclude, and the trial court will rule on the constitutionality.”

Whatever ruling that trial judge makes will then be appealed, Eastmoore said, all the way to the Supreme Court.

The Trial Lawyers’ 24-member executive council, equally divided between plaintiff and defense attorneys, “overwhelmingly voted to oppose the law because of the access issue,” Eastmoore said. “It violated access to courts, because it prohibited potential plaintiffs from bringing lawsuits because they can’t bring experts.”

Another legislative statute rejected by the majority of the court in this opinion involves establishing a “fiduciary lawyer-client privilege” (§90.5021).

“We decline to follow the committee’s recommendation to adopt the new provision of the Code because we question the need for the privilege to the extent that it is procedural,” the court said.

And the Legislature amended §90.804 to include the hearsay exception of “statement offered against a party that wrongfully caused the declarant’s unavailability.”

“According to the committee, the provision is a codification of the common law rule that one who wrongfully procures the absence of a witness from court cannot complain of the admission of the hearsay statement of the witness,” the majority of justices said.

“We decline to adopt this amendment to the extent it is procedural in light of constitutional concerns.”

[Revised: 12-17-2014]