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October 15, 2012
Panel streamlines expert witness rule

By Gary Blankenship
Senior Editor

A Bar rules committee has voted to forward a streamlined version of a controversial proposed evidence rule to the Supreme Court.

The Code and Rules of Evidence Committee September 21 reconsidered a legislatively passed section of the evidence code that requires out-of-state expert witnesses in medical and dental malpractice cases to get a certificate from the Florida Department of Health before testifying.

The committee was reconsidering the issue at the request of the Bar Board of Governors and the committee voted to rescind some recommendations previously made to include statutory provisions in the rules of evidence.

The actions affect laws passed by the Legislature in 2011. A new section to F.S. §766.102 mandated that expert witnesses in medical or dental malpractice cases either be licensed as a doctor, osteopath, or dentist by the state or, if licensed in another jurisdiction, get a valid expert witness certificate from the Department of Health. Further changes to F.S. §§458.3175, 459.0066, and 466.005 spelled out the certification procedure for each profession. Experts must fill out a form, pay $50, and also be subject to discipline by the department.

The Board of Governors, which reviews and comments on procedural rule amendments but cannot change them on its own, initially tabled consideration of the rules at its May meeting. Then, in July, the board asked the committee to revisit the issue at the Bar’s Midyear Meeting after several board members expressed concerns.

Committee chair Tom Shults noted that the Supreme Court last year asked for a review of the expert witness laws and their potential impact on procedural rules. He said, after the board action, the Code Improvement Subcommittee reviewed the matter and recommended that only F.S. §766.102(12) be included in the procedural rules and the other statutes be excluded.

“We felt there was no need to recommend that provisions of the licensing statute be adopted as a rule of procedure because those statutes do not concern court procedure or interact with court procedure,” Shults said.

He also noted this is a different situation for the committee as most previous recommendations have dealt with the evidence code as enacted in F.S. Ch. 90 and this involves a different law.

“The subcommittee doesn’t pass on whether it’s a good law or a bad law,” Shults said. “What we studied were the comments offered to us. And we used the previous decisions of the Florida Supreme Court and asked what are the criteria the court has used in evaluating whether a new statute should be adopted as a rule of procedure.”

He said the court has always adopted code changes as procedural, subject to a specific challenge in a future case, unless there was a conflict with a constitutional right or other procedural rule — and that has happened only once.

“The sole purpose of this . . . is to prevent plaintiffs from getting experts to testify. Because in the state of Florida, doctors do not like to testify against other doctors,” committee member Andrew Hamilton said. “If we’re going to rubber-stamp this, we’re going to have to realize this is nothing but a partisan attempt to deprive people of the right to bring medical malpractice cases.”

Committee member Perry Adair said he didn’t see the evidentiary value of the certificate.

“What does it have to do with anything?” he said. “It means you filled out a form and you sent in a check.”

Other committee members said the rule could raise court access, equal protection, and other questions, because it applied to medical malpractice, but not other personal injury cases.

Committee member Timothy Moore conceded there may well be due process, equal protection, and court access questions about the laws, but said that’s not the committee’s concern.

“Should it not be adopted [as a procedural rule], all of the ensuing litigation . . . will focus on the tangential issue of which body of government should have passed the rule, the courts or the Legislature and we’ll never get to the merits,” he said, adding when adopting such rules the court always leaves the door open for constitutional challenges raised by a case in controversy.

The committee ultimately voted 14-13 for a motion to present the matter to the court as a procedural rule.

The new recommendation will be published in the News for input and also resubmitted to the Board of Governors for its reaction, Shults said. It is scheduled to go to the board in December.

Before the committee’s discussion, Shults reviewed the Code and Rules of Evidence Committee’s unique role among procedural rules committees in that it advises the Legislature of evidence code matters and then presents code changes to the court for inclusion in the procedural rules.

In the committee’s report to the board, Shults notes: “When the Florida Legislature passed the Florida Evidence Code in 1976, the Supreme Court recognized that many provisions of the Code might violate Art. V because they governed or touched upon practice and procedure. To avoid disputes concerning the constitutionality of the Code under Art. V, the Supreme Court by per curiam opinion in 1979 adopted the entire Evidence Code as a rule of procedure to the extent it was procedural. The court’s rationale for this action was ‘[t]o avoid multiple appeals and confusion in the operation of the court caused by assertions that portions of the Evidence Code are procedural and, therefore, unconstitutional because they had not been adopted by this court under its rulemaking authority. . . .’”

In this case, Shults noted, “The recommendation is not and should not be viewed as an endorsement of this law or an opinion on whether the law may or may not be subject to a successful challenge when applied to a specific case. The Supreme Court has held in previous three-year cycle opinions that it will not consider extraneous arguments concerning the validity of statutes during the three-year cycle process, but rather will wait for an actual case or controversy wherein opposing sides have the opportunity to fully litigate and brief the issues under real, as opposed to hypothetical, circumstances.”

Shults, as noted previously, reminded the committee the court in previous rulings has set very narrow guidelines for code changes that it initially will not adopt into the procedural rules, and those rules adopted always have the caveat that they are subject to further constitutional challenges. He also said this case may give the court a forum for further clarifying the committee’s role and the interplay between the substantive and procedural evidence matters.

[Revised: 01-07-2014]