Florida Supreme Court Rejects Rule On Expert Witnesses

, Daily Business Review

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Florida Supreme Court
Florida Supreme Court

The Florida Supreme Court on Thursday refused to adopt rules of evidence to reflect a new law requiring executive branch certification of out-of-state expert witnesses in medical malpractice cases.

It was one of three proposed rules recommended by The Florida Bar code and rules of evidence committee. The court declined to adopt two because of constitutional concerns and one "because we question the need."

On the expert witness rule, the decision indicates the court anticipates a constitutional challenge on the substance of the law.

The Legislature passed a requirement that medical experts from outside Florida must obtain a $50 certificate from the state Health Department swearing they are licensed to practice medicine in their home state if they intend to testify in Florida medical malpractice cases.

The court noted the committee's recommendation was a narrow 14-13 split supporting the proposal but The Bar's board of governors voted 34-5 against it "on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses and is prejudicial to the administration of justice."

"Numerous comments were filed with respect to this proposal, all in opposition to its adoption," the unsigned 6-1 opinion said. IN dissent, Justice Charles Canady said he would adopt all three rule amendments.

Sean Domnick of Domnick & Shevin in Palm Beach Gardens, one of two attorneys who spoke against the rule during summer oral argument, said of Thursday's decision: "I think the court understood perfectly well the problem with the Legislature encroaching into this area. The rules of the court should be determined by the court, not the Legislature."

Now that trial judges are not obligated to require certificates, Domnick said the most likely next step is for a plaintiffs attorney to seek a declaratory judgment to strike down the law as unconstitutional, "much like what is happening now with the Legislature's authorization of ex parte communications."

In September, a Tallahassee federal judge stopped enforcement of a change in medical malpractice law that allowed communications by the defense with doctors as a prerequisite to filing a lawsuit. The law permitted defense attorneys and their investigators to talk to a victim's doctors outside the presence of the victim's attorney.

Sausage Making

The out-of-state expert witness issue was argued before the Supreme Court on June 3.

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