80 So. 3d 358
Fla. Dist. Ct. App.2012Background
- Duss, a minor, alleged Dr. Garcia’s negligent use of a fetal vacuum during birth caused cerebral palsy.
- Lawsuit filed in 2003; tried in Aug. 2010 after mistrial, with four experts proffered (one on standard of care, three on causation).
- Jury found no negligence by Dr. Garcia; final judgment favorable to Appellees.
- Appellant argued (1) exclusion of standard-of-care causation testimony by Dr. Schifrin left causation unproven; (2) improper bolstering via authoritative publications by Appellees’ experts.
- Appellant seeks reversal for error in ruling and bolstering, but the First District affirmatively upheld the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in excluding causation testimony by the standard-of-care expert | Duss argues Schifrin’s causation opinion should be admitted | Schifrin’s opinions exceed his qualification (causation) | No abuse; exclusion affirmed |
| Whether bolstering of experts with publications was improper | Appellees used publications to bolster causation opinions | Question was fair follow-up, not improper bolstering | No error; admissibility held proper under controlling authority |
| Whether NIH study data used by Schwartz could be admitted to support causation theory | NIH data could support link between preeclampsia, placental malperfusion, and injury | Treatise-like use is hearsay and improper bolstering | Proper under Kloster Cruise and Houghton; not reversible error |
Key Cases Cited
- Kloster Cruise, Ltd. v. Rentz, 733 So.2d 1102 (Fla.3d DCA 1999) (allowed expert to use government data as basis for opinion on direct examination)
- Houghton v. Bond, 680 So.2d 514 (Fla.1st DCA 1996) (government data used to aid understanding of expert opinion; not hearsay conduit)
- Linn v. Fossum, 946 So.2d 1032 (Fla.2006) (experts cannot bolster testimony with treatise as substantive evidence; 90.706 permits cross-examination use)
- Donshik v. Sherman, 861 So.2d 53 (Fla.3d DCA 2003) (treatise materials cannot be used as substantive bolstering evidence)
- Angrand v. Key, 657 So.2d 1146 (Fla.1995) (trial court broad discretion on expert testimony; abuse requires misapplication of law or facts)
- American Motors Corp. v. Ellis, 403 So.2d 459 (Fla.5th DCA 1981) (public data exceptions to hearsay; admissibility considerations)