210 So. 3d 711
Fla. Dist. Ct. App.2017Background
- Decedent had chronic ear/sinus symptoms treated at a clinic; Dr. Torres saw him on Dec 18, 2009 and gave a Medrol Dosepak and Levaquin samples; no ear exam was recorded.
- On Feb 25, 2010 Decedent returned with acute right ear pain; Dr. Torres examined him, diagnosed otitis media, prescribed azithromycin (Z-Pak) and pain medication, and did not refer to ENT or hospital.
- Feb 26–27, 2010: ENT evaluation and hospital admission revealed middle ear disease, mastoid/opacification, meningitis; culture from ear fluid grew Streptococcus pneumoniae; Decedent died March 2, 2010 of meningitis.
- Plaintiff sued for wrongful death alleging multiple breaches of care (failure to diagnose/refer, failure to order labs/imaging, etc.); original complaint did not allege negligence for providing Levaquin.
- Plaintiff amended pleadings late to add record-keeping and prescribing allegations; at trial plaintiff first argued in opening and elicited expert testimony that giving Levaquin samples was a breach; package insert was admitted and used substantively; defense sought mistrial and to exclude that evidence as undisclosed expert opinion.
- Trial court excluded defense use of deposition of ER physician Dr. Kelley (a board-certified emergency physician) as a skilled witness; jury returned verdict for plaintiff; appellate court reversed and remanded for new trial because of prejudicial, undisclosed expert testimony and erroneous evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of new theory (Levaquin negligence) not disclosed pretrial | Plaintiff argued Levaquin use showed deviation from standard of care and package insert supported requirement to culture and dose | Torres argued plaintiff failed to disclose this theory or expert opinion pretrial; admission was unfair surprise and violated Binger principles | Reversed: trial court erred by allowing undisclosed expert opinion and Levaquin evidence; prejudicial surprise warranted new trial |
| Admissibility of Levaquin package insert as substantive evidence | Insert shows manufacturer warnings/requirements and supports negligence theory | Defense argued insert is hearsay/learned treatise not admissible as substantive proof; experts must interpret | Reversed: trial court erred in admitting insert substantively; such writings may be used to cross-examine experts but not as stand-alone proof of standard of care |
| Exclusion of deposition of Dr. Kelley (ER physician) | Plaintiff did not contest exclusion; focused on other evidence | Torres argued Dr. Kelley was a skilled witness and her deposition should be admissible under Fla. R. Civ. P. 1.330(a)(3)(F) to support defense | Reversed: trial court erred in refusing to find Dr. Kelley a skilled witness and excluding her deposition; exclusion was not harmless |
| Sufficiency of expert testimony on Levaquin (late opinions) | Plaintiff’s experts testified at trial that providing Levaquin without culture/dosing breached care | Defense noted neither expert gave that opinion in deposition and could not prepare rebuttal | Held for defendant on appeal: allowing new expert opinion at trial without disclosure violated discovery/Binger and prejudiced defense |
Key Cases Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) (trial courts may exclude undisclosed witnesses/opinions under factors balancing surprise and prejudice)
- Perryman, M.D. v. Crawford, 968 So. 2d 83 (Fla. 4th DCA 2007) (failure to disclose expert opinion analyzed under Binger principles)
- Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897 (Fla. 5th DCA 2012) (learned treatise use limited to impeachment/cross-examination; not substantive evidence)
- Castaneda v. Redlands Christian Migrant Ass’n, 884 So. 2d 1087 (Fla. 4th DCA 2004) (depositions may be used when rule authorizes use of expert/skilled witness testimony)
- In re Richardson-Merrell, Inc. Bendectin Prods. Liab. Litig., 624 F. Supp. 1212 (S.D. Ohio 1985) (manufacturer warnings/labels are not sole proof of standard of care and may implicate hearsay concerns)