Covering legal ethics, judicial ethics, bar admissions in Florida, Tennessee, and nationally. See our Subject Index to past postings.
Florida - EXPERT WITNESSES
Court erred in disqualifying party’s proffered fee expert in 57.105 fee proceeding on the ground that he never previously testified as expert. [Added 11/10/22]
Defendant filed a motion for fees and costs pursuant to F.S. 57.105 after the Plaintiff voluntarily dismissed the suit. The trial court ruled that Defendant was entitled to fees and held an evidentiary hearing on the amounts to be awarded. Plaintiff attempted to have its expert testify. The expert was an experienced lawyer who “was experienced in attorney billing, had previously litigated fee disputes, and was a practicing attorney familiar with the reasonable amounts customarily awarded for similar litigation matters pursuant to the factors set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).” The proposed expert, however, had never testified as a fee expert. The trial court excluded the testimony. Plaintiff appealed.
The Fourth DCA reversed, ruling that the trial court had abused its discretion. The appeals court pointed out that neither the evidence code nor case law require that a lawyer have previously testified as an expert on the reasonableness of the amount of fees to be qualified as an expert. “Instead, what is required for the testimony to be admissible is for the trial court ‘to assess whether the expert’s ‘reasoning or methodology properly can be applied to the facts in issue.’’ Philip Morris USA, Inc. v. Naugle, 337 So.3d 13, 18 (Fla. 4th DCA 2022) (quoting Kemp v. State, 280 So.3d 81, 88-89 (Fla. 4th DCA 2019)). The trial court clearly erred by excluding the plaintiff’s proffered expert testimony based on reasons that should only have been considered in determining the testimony’s weight, not its admissibility.” Mendelson v. Howard, __ So.3d __ (Fla. 4th DCA, No. 4D21-1552, 10/26/2022), 2022 WL 14688178.
In case with “bad blood,” Second DCA reverses order awarding clients’ former lawyer expert witness fee for testifying in postjudgment prevailing party fee hearing about work he had performed. [Added 1/25/22]
Clients were plaintiffs in a suit brought in 2013. Lawyer Essenson represented them in the suit from 2014 to 2016. Other lawyers also represented Clients during the litigation, which ended in 2018 with a judgment in their favor. Clients sought prevailing party fees. Their current counsel asked all prior counsel to execute affidavits setting forth the facts relevant to the fee claims. All counsel except Essenson agreed. When Clients subpoenaed Essenson, he filed a motion for protective order seeking to be paid as an expert witness under Fla.R.Civ.P. 1.390. Ultimately, the trial court granted the motion for protective order.
Clients appealed. The Second DCA reversed, expressing its displeasure at having to “adjudicate a squabble over compensation for 1.5 hours of work.” The court reviewed case law, leading to the conclusion that “the question of whether a witness testifies as an expert – and is thereby entitled to an expert fee – depends not only on the witness's credentials, but also on whether the witness actually gives expert testimony.” Here, Essenson did not give an expert opinion.
Essenson argued that he was in the same position as a treating physician who testifies and is paid an expert fee. The court disagreed, stating that the “analogy to testifying doctors is appropriate, but it precludes his entitlement to the fee. Like a treating physician, Mr. Essenson testified to facts within his personal knowledge about acts that he either took or supervised. He was neither called upon to, nor did he, give an expert opinion or evaluate the performance of others. Even though the acts he described involved technical matters, Mr. Essenson’s recollections of them ‘are facts nonetheless.’” (Citation omitted.) Buzby v. Turtle Rock Community Ass’n, Inc., __ So.3d __ (Fla. 2d DCA, No. 2D21-1377, 1/5/2022), 2022 WL 38480.
Court erred in taxing as costs the fees of expert who was deposed but did not testify at trial due to tactical decision. [Added 1/22/22]
In protracted trust litigation, a claim that McDonald has breached his fiduciary duty was tried. McDonald retained an expert witness who was deposed and participated in a deposition, hearings, and mediation. The expert attended the trial but “did not testify either in person or by deposition due to a last-minute tactical decision made by McDonald.” McDonald prevailed at trial and the court taxed the expert witness costs against the plaintiff.
On appeal, the Fourth DCA reversed the order taxing costs for the expert. “McDonald’s expert did not testify at trial, either in person or by deposition, and our court has found appearance at trial to be the determining factor in whether to tax expert costs. See Thellman [v. Tropical Acres Steakhouse, Inc.], 557 So.2d  at 684 [(Fla. 4th DCA 1990)]; KMS of Fla. Corp. [v. Magna Props., Inc.], 464 So. 2d  at 235 [(Fla. 5th DCA 1985)]. Regardless of how useful the expert was during trial preparation, McDonald’s tactical decision to not allow the expert to testify at trial made him only a consulting expert. See Woodbridge [Holdings, LLC v. Prescott Grp. Aggressive Small Cap Master Fund], 193 So. 3d  at 4 [(Fla. 4th DCA 2015)]. Because of this, it was inappropriate for the trial court to tax costs for the expert beyond his appearance at the deposition. See id. Similarly, the trial court could not tax costs for the time expended by the two attorneys who prepared the expert for deposition because neither attorney testified by deposition nor qualified as an expert. See Thellman, 557 So. 2d at 684.” Fischer v. Fischer, __ So.3d __ (Fla. 4th DCA, Nos. 4D20-1752, 4D20-2052, 12/22/2021), 2021 WL 6057845.
Third DCA declines to extend Worley in case involving financial records of expert witness. [Added 7/15/21]
A trial court entered an order compelling discovery from the Hidalgos’ retained expert witness regarding “a list of cases with, and money received over the past three years from, the law firm representing the Hidalgos or any attorney associated with that firm.” Contending that the order exceeded the court’s authority “in contravention of clearly established law,” the Hidalgos petitioned the Third DCA for a writ of certiorari. The Hidalgos argued that “Worley [v. Cent. Fla. Young Men’s Christian Ass’n, 228 So.3d 18 (Fla. 2017)] and Fla.R.Civ.P. 1.280(b)(5)(A)(iii) “clearly establish a bar to the expert discovery sought by Citizens.”
The Third DCA denied the petition, rejecting the contention that the expert discovery in question “fits within the impermissible attorney-client category set forth in Worley.” The court stated that Worley provided no basis of relief for the Hidalgos, because “Worley holds only that the attorney-client privilege bars compelled disclosure of whether the plaintiff’s lawyer referred the plaintiff to a treating physician.” (Citation omitted.)
The court did conclude that the production order went further than contemplated under the civil procedure rule and “quashed the order under review to the extent it compels production of documents not enumerated in Rule 1.280(b)(5)(A).” Hidalgo v. Citizens Property Ins. Co., __ So.3d __ (Fla. 3d DCA, No. 3D20-1811, 6/23/2021), 2021 WL 2559168.
Court erred in assessing expert witness fees as part of sanction under F.S. 57.105. [Added 5/5/21]
Lawyer represented Mother in a paternity action. The trial court entered an order granting sanctions against Lawyer under F.S. 57.105 in connection with “issues relating to the scheduling of a final hearing on time sharing and parental responsibility.” The order granted Father an entitlement to reimbursement of reasonable fees and costs. Lawyer appealed.
The Second DCA affirmed as to Father’s entitlement to fees, but reversed for specific findings as to reasonable hours and hourly rate. The court also agreed with Lawyer that the order improperly included an award of expert witness fees. “The plain language of section 57.105(1) dictates that the sanction permitted does not include costs but rather is an award of attorney fees only. . . . Because ‘expert witness fees are taxed as costs,’ the trial court's order awarding attorney fees and costs to the father must be reversed to the extent that it purports to award $1500 in expert witness fees.” (Citations omitted.) Tribble v. L.O.-B., __ So.3d __ (Fla. 3d DCA, No. 2D19-2402, 4/7/2021), 2021 WL 1278016.
Court erred in compelling county employee to testify even though he had not been retained as expert witness and had no personal knowledge that would make him fact witness. [Added 1/13/20]
In a suit between two businesses, one party listed a County employee, County Building Official Jamie Gascon, as a witness. The non-party County sought to preclude the taking of Gascon’s testimony on the ground that “he was neither a fact witness nor a retained expert.” The trial court issued an order compelling Gascon to testify. Seeking to quash the order, the County petitioned for a writ of certiorari.
The Third DCA granted the petition and quashed the order. “It is well-settled that an unretained expert cannot be compelled to render an expert opinion where he lacks knowledge of the facts of the case. . . . A court errs in compelling an expert ‘to testify when he ha[s] not been retained by the part[ies] and ha[s] no specific knowledge of the case, in contrast to general knowledge [he] may have by virtue of being an expert.’ . . . Moreover, a County employee cannot testify as an expert without the County’s explicit authorization. . . . The parties did not retain Mr. Gascon as an expert and the County has not agreed to permit Mr. Gascon to testify. Therefore, Mr. Gascon cannot testify as an expert witness.” (Citations omitted.)
Further, the record showed that “Mr. Gascon does not have any personal knowledge of the subject warehouse or related permitting. Thus, Mr. Gascon is not qualified to testify as a fact witness under [F.S.] 90.701 (2019).” Miami-Dade County v. Morejon, __ So.3d __ (Fla. 3d DCA, No. 3D19-1784, 12/4/2019), 2019 WL 6519057.
“What’s good for the goose is good for the gander” argument does not protect defense expert witness retention and compensation information from disclosure, but Fifth DCA certifies question to Supreme Court. [Added 2/26/19]
Plaintiff sued Defendant for personal injuries from an auto accident. Defendant’s insurer retained counsel to defend him. Defense counsel retain a physician to perform a compulsory medical exam (“CME”) on Plaintiff. Plaintiff sought to discover the frequency that the physician had been used by defense counsel during the past 3 years as well as the fees paid to him. Defendant objected, arguing that under a “good faith reading” or an “extension” of the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Ass’n, 228 So.3d 18 (Fla. 2017), disclosure of the financial relationship between defense counsel and its expert witness is not discoverable. The trial court did not agree and ordered the information produced.
Defendant petitioned the Fifth DCA for first-tier certiorari relief. The appellate court denied the petition. The court noted that the issue in Worley was whether attorney-client privilege protected a plaintiff from disclosing that a lawyer referred the plaintiff to a doctor for treatment. In the view of Fifth DCA, Worley did not change the underlying law that generally allows discovery into a party’s financial relationship with an expert witness. Accordingly, the court rejected Defendant’s argument that the adage “what is good for the goose is good for the gander” should be applied to protect the information sought from Defendant.
Nevertheless, the appeals court indicated sympathy for Defendant’s position. “Our court has also noted the seemingly disparate treatment in personal injury litigation between plaintiffs and defendants regarding disclosure of this type of relationship. . . . For example, under Worley, a plaintiff law firm can refer 100 of its clients to the same treating physician, who may later testify as an expert witness at trial, without that referral arrangement being either discoverable or disclosed to the jury, yet if a defense firm sends each one of these 100 plaintiffs to its own expert to perform a CME under [Fla.R.Civ.P.] 1.360, and then later to testify at trial, the extent of the defense law firm’s financial relationship with the CME doctor is readily discoverable and can be used by the plaintiff law firm at trial to attack the doctor’s credibility based on bias.”
The court closed by noting that Defendant “raises a compelling argument that the law in this area is not being applied in an even-handed manner to all litigants” and certified the following question to the Supreme Court as one of great public importance: “Whether the analysis and decision in Worley should also apply to preclude a defense law firm that is not a party to the litigation from having to disclose its financial relationship with experts that it retains for purposes of litigation including those that perform compulsory medical examinations under Florida Rule of Civil Procedure 1.360?” Younkin v. Blackwelder, __ So.3d __ (Fla. 5th DCA, No. 5D18-3548, 2/22/2019), 2019 WL 847548, review granted, No. SC19-385, 2019 WL 2180625 (Fla., May 21, 2019).
NOTE: See also Dodgen v. Grijalva, __ So.3d __ (Fla. 4th DCA, No. 4D19-1010, 6/26/2019) (certifying same question to Florida Supreme Court); Salber v. Frye, __ So.3d __ (Fla. 5th DCA, No. 5D18-2917, 5/10/2019), 2019 WL 2062373 (same); Dhanraj v. Garcia, __ So.3d __ (Fla. 5th DCA, No. 5D18-2330, 3/22/2019), 2019 WL 1302540 (same)..
Court erred in ordering production of those portions of expert’s written opinion that were not relevant to claims at issue in that suit. [Added 7/14/15] -- SCI Funeral Services of Florida, Inc. v. Walthour, __ So.3d __ (Fla. 1st DCA, No. 1D15-110, 6/22/2015), 2015 WL 3824205.
Fourth DCA quashes order requiring broad disclosure of expert witness’s financial information relating to testimony for insurance company and defense counsel. [Added 5/8/15] -- Grabel v. Sterrett, __ So.3d __ (Fla. 4th DCA, No. 4D14-4780, 4/29/2015), 2015 WL 1934558.
Letter of protection between plaintiff and her treating physician who testified as an expert is admissible to show physician’s potential bias. [Added 9/5/13] -- Pack v. Geico General Ins. Co., 119 So.3d 1284 (Fla. 4th DCA 9/4/2013).
Court erred in dismissing professional negligence suit against expert witness on ground of witness immunity. [Added 12/28/12] -- Hoskins v. Metzger, 102 So.3d 752 (Fla. 2d DCA 2012).
State agency seeking expert’s deposition in termination of parental rights proceeding must pay for it. [Added 3/21/12] -- Colaizzo v. Office of Criminal Conflict and Civil Regional Counsel, 82 So.3d 195 (Fla. 4th DCA 2012).
Court erred in imposing sanctions on party due to conduct of its expert witness. [Added 2/811] -- State Farm Mutual Auto. Ins. Co. v. Swindoll, 54 So.3d 548 (Fla. 3d DCA 2011).
Error to tax as costs the fee of expert witness who did not testify at trial and whose deposition testimony was not used at trial. [Added 3/25/04] -- Family Dollar Stores of Florida, Inc. v. Jones, 867 So.2d 1278 (Fla. 4th DCA 2004).
Mention of allegedly improper expert witness fee agreement in violation of order in limine was ground for granting new trial. [Added 11/28/03] -- Orvis v. Caulkins Indiantown Citrus Co., 861 So.2d 1181 (Fla. 4th DCA 2003).
Where non-testifying expert did not acquire confidences that would result in unfair informational advantage, disqualification of lawyer who hired expert was not warranted. [Added 7/30/03] -- Sultan v. Earing-Doud, 852 So.2d 313 (Fla. 4th DCA 2003).