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January 1, 2013
Board argues against new rule for med mal experts

By Gary Blankenship
Senior Editor

For only the third time in 30-plus years, the Bar Board of Governors is recommending the Supreme Court not adopt a legislatively approved change to the statutory evidence code into the procedural rules of evidence.

At issue is a law passed in 2011 requiring that 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 review by the department, including allegations that they provide misleading testimony.

The board has been debating the recommendation from the Code and Rules of Evidence Committee since last May and sent it back once for reconsideration by the committee.

The committee made some minor changes to its proposal in September, but by a 14-13 vote kept to its core recommendation that the court should adopt the change made to F.S. §766.102(12) into the rules of evidence. (See story in the October 15 Bar News.)

At their December 7 meeting on Amelia Island, 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 raises constitutional issues and conflicts with other procedures.

“Substantively, this is a statute where the Legislature tells the court that the court can’t hear testimony from certain witnesses unless the executive branch gives them a license,” board member Bill Davis said.

Board member Jay Cohen argued that the statute sets no standards for evaluating the out-of-state experts but does leave them open to the threat of being sanctioned in Florida, which, in turn, could be reported to their home state licensing authority.

“Why would they subject themselves potentially to sanctions in the State of Florida for being an expert witness when that has broad implications to their licenses in their home states?” said Cohen.

Scott McMillen “It appears to be unconstitutional, and it appears likely to have a chilling effect on who is willing to testify on both sides in medical cases in Florida, and in that regard it is prejudicial to the administration of justice,” said board member Scott McMillen, who made the motion to recommend the court not adopt the law into the evidence rules.

Board members questioned the constitutionality of the law, because it only affects medical malpractice cases. They also argued that procedural rules already guide judges in evaluating and accepting experts and give judges sanctioning authority if an expert provides misleading testimony.

Board member Skip Campbell said the rule crosses the line separating the legislative and judicial branches, because it is clearly procedural instead of substantive.

“This is clearly a rule of procedure. This is clearly an unconstitutional rule of procedure. And for us just to say to the court we’re going to stand down and not look at it from a substantive standpoint is wrong,” he said.

However, board member Ed Scales said the purpose of the board’s review was not to determine the constitutionality of the law or its desirability, but to match state law and court procedural rules so lawyers have clarity when they litigate.

“We can support the committee’s recommendation without taking an opinion on the constitutionality of the rule, which we haven’t been briefed on . . . and without ratifying the wisdom of the statute. But at the end of the day, our rules and our statutes should be congruent so our practitioners have a path to litigate,” he said.

“It may be a bad statute, but that’s not what we are elected by our constituents to do, to second guess the Legislature. We have to promote the efficient administration of justice. That means there has to be congruence between the statutes that the Legislature passes and the rules that the Supreme Court adopts.”

The board also received a position statement from the Trial Lawyers Section opposing the rules committee’s recommendation to the court. The section argued the law could prevent both sides from obtaining the experts they need to prosecute or defend a malpractice case, which in turn affects the right of access to the courts.

“The law provides no benefit to litigants, only restrictions. The law also strips the courts of a function that, heretofore, was uniquely the role of the judiciary: regulating the propriety and qualifications of expert testimony to be presented at trial. There is no need for section 766.102(12), as the courts have historically done an acceptable job regulating the evidence admissible before them,” the section said.

Bar President-elect Gene Pettis, who practices both sides of medical malpractice cases, said it was a leadership issue for the board. He said it’s easy to find an expert witness when defending a case, but that in-state doctors are reluctant to testify for plaintiffs and against their “brethren.”

“For somebody in the Legislature to think that somehow there is a problem they’re trying to correct with this particular change here, but left out every other single practice area that has even more litigation in the courts than medical malpractice, it’s obvious what this is about,” he said.

Tom Shults, chair of the Code and Rules of Evidence Committee, reminded the board that his committee functions differently from all other procedural rules committees.

While the court has traditionally enacted procedural rules for the courts, the Legislature in 1976 enacted the evidence code as Chapter 90 of the Florida Statutes, he noted. Thus, a problem was created because much of the code was clearly procedural, raising constitutional questions because Art. V of the state constitution puts the Supreme Court in charge of procedural rules.

“The cooperative solution is the court would evaluate the code of evidence and adopt them as rules of procedure to the extent they were procedural, thereby rendering the code constitutional,” Shults said.

Because the Legislature regularly amends the code, the Rules of Judicial Administration were rewritten to require the evidence committee to review those changes and report to the court. (The committee, unlike other rules committees, also recommends changes in the code of evidence to the Legislature.)

Approving the changes, Shults said, does not mean the court finds them constitutional. Rather it does away with litigation that the changes violate Art. V by impinging on the court’s rulemaking authority and allows the court to consider other challenges and constitutional issues in the context of an actual case.

The only time the court declined to change the evidence rules to conform with a code change was in 2000, after the Legislature passed a bill including a hearsay exception allowing depositions to be substituted for live testimony in trials — essentially allowing trial by deposition in both civil and criminal cases, Shults said.

The court declined to accept the recommendation that the change be incorporated into evidentiary rules, saying it violated the Sixth Amendment guarantee for a defendant to confront his or her accusers and also conflicted with other procedural rules on the admissibility of depositions.

In 2002, the committee recommended that the court not adopt another code change making it easier to admit similar fact evidence in child molestation cases. The committee — supported by the board — said the change violated case law and didn’t track other procedural rules. The court, in a 4-3 decision, did accept the change, with the majority saying the conflict with other rules was minimal, but as the court typically does in rules cases, adding that it reserved judgment on other issues until it reviewed an actual case in controversy, Shults said.

The board voted 36-5 to approve McMillen’s motion, which also included drafting a report on the Bar’s positions for submission to the Supreme Court.

The rules committee’s request will now be submitted to the Supreme Court, and Shults said he will seek oral argument on the matter.

[Revised: 01-08-2014]