Olesky v. Stapleton
123 So. 3d 592
Fla. Dist. Ct. App.2013Background
- Ann Olesky (61) died days after double-valve heart surgery; Estate sued for wrongful death alleging failure to diagnose treatable cardiac tamponade and aortic dissection.
- Defendants contended death was due to spontaneous bilateral coronary artery dissection not detectable earlier.
- The case proceeded to trial, resulted in a mistrial, then a three-week retrial where the jury returned a defense verdict; Estate appealed.
- Estate’s key expert, Dr. Mehta (aortic dissection specialist), opined that an echocardiogram would have shown a cardiac tamponade if performed.
- Trial court excluded that portion of Dr. Mehta’s testimony, relying on Young-Chin v. City of Homestead, and sustained defense objections.
- The Second District reversed, holding exclusion of Dr. Mehta’s opinion was legal error and remanded for a new trial; cost judgment also reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert opinion about what an unperformed diagnostic test would have shown | Dr. Mehta may testify that an echocardiogram would have revealed tamponade based on records and expertise | Such opinion is improper where the test was not performed; Young-Chin prohibits speculation without factual predicate | Exclusion was reversible error; Young-Chin was misapplied and does not bar opinion about what a reasonable test would have revealed |
| Scope and applicability of Young-Chin precedent | Young-Chin does not preclude experts from opining about hypothetical diagnostic results when based on record review | Young-Chin requires factual predicate and limits opinions unsupported by facts | Court reviews application de novo and finds Young-Chin inapposite to a failure-to-diagnose case |
| Need for testimony about unperformed tests in failure-to-diagnose claims | Failure-to-diagnose theory necessarily requires opinion on what diagnosis/testing would have shown | Requiring performed tests would undermine statutory failure-to-diagnose claims | Allowing such expert opinion is consistent with the statutory cause of action and necessary for these cases |
| Prejudice from excluding cumulative expert testimony in malpractice trials | Even cumulative expert testimony is important in a battle-of-experts and its exclusion can be harmful | Exclusion may be harmless if duplicative | Exclusion was harmful; such errors often warrant reversal and new trial |
Key Cases Cited
- Young-Chin v. City of Homestead, 597 So.2d 879 (Fla. 3d DCA 1992) (expert must have factual predicate for opinions; concerned testimony without supporting facts)
- Sottilaro v. Figueroa, 86 So.3d 505 (Fla. 2d DCA) (trial-court evidentiary rulings reviewed for abuse of discretion; legal interpretation reviewed de novo)
- Cenatus v. Naples Cmty. Hosp., Inc., 689 So.2d 302 (Fla. 2d DCA 1997) (excluding even cumulative expert testimony in malpractice cases can be harmful)
- Lake v. Clark, 533 So.2d 797 (Fla. 5th DCA) (medical malpractice is typically a battle of expert witnesses)