Limitation on Experts’ Testimony

In Linn v. Fossum, 31 Fla. L. Weekly D741 (Nov. 3, 2006), the Supreme Court of Florida was faced with the issue as to the extent to which an expert can testify on direct examination that the expert relied on consultation with colleagues or other experts in forming the expert’s opinion. The case came up for review as a result of a conflict between the underlying First District Court of Appeal’s decision in Linn v. Fossum, 894 So. 2d 974 (Fla. 1st DCA 2004) and the case of Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997).
The Linn case arose out of a medical malpractice action brought on behalf of a plaintiff who alleged that her surgeon accidentally cut her ureter.The defense expert testified on direct examination that she believed the defendant doctor met the prevailing professional standard of care, because she had had a conference with several other urologists whom she regarded as representatives of the general urologic community who, when presented the facts, hypothetically agreed that the doctor had met the standard of care. She also testified that she had presented the same facts to physicians at the University of Missouri with the same result. The trial court permitted the testimony to go in over an objection that the testimony constituted hearsay and the use of the witness as a conduit for hearsay from other physicians.

After the resulting defense verdict, the trial court denied a motion for new trial and was affirmed by the First District.
In the Schwarz case, supra, a forensic pathologist testified on direct examination that he had consulted with several other physicians in forming his opinion about the cause of death of the decedent. The Fourth District reversed on the basis that such testimony impermissibly bolstered the expert’s opinion.
Experts, unlike lay witnesses, can rely on “facts or data” that are not admissible in evidence to support their opinions under Fla. Stat. 90.704 so long as the facts or data are of a type reasonably relied upon by experts to support their opinion.
In Linn, supra, at 743, the Supreme Court draws the line on what an expert may use as the basis for his or her opinion.
“Usually, experts can testify that they formed their
opinions in reliance on sources that contain
inadmissible information without also conveying
the substance of the inadmissible information.
However, when the sources are the expert
witness’s colleagues who have responded to a
case-specific inquiry by the expert, source and
substance are blended. Informing the jury that
the expert formed his or her opinion from
consultations of this nature indicates a group
consensus based on hearsay that would not be
conveyed by testimony that the expert relied
on records, tests, or reports from the patient
or other medical providers directly involved in
the diagnosis or treatment of the patient.
Further, opinion testimony by consensus is
essentially immune to challenge. The opposing
party is unable to cross-examine the
nontestifying experts who participated in the
consultation. Moreover, there is no way for
the trial court to assess whether the consulting
expert, upon whom the testifying expert relied
on in whole or in part, is herself qualified or
had a proper foundation upon which to base
an opinion. For example, did the testifying
expert provide the expert or experts with all
the pertinent facts and records? Also, there
are no clear limits on how far consultations
could extend. Would an expert be able to
solicit opinions over the internet? Would
the battle of the experts become a battle
over how many other experts were
consulted?”
The Supreme Court concluded that permitting an expert to testify about what other witnesses have said allows the presentation of otherwise inadmissible hearsay merely because the expert claims to have relied upon it in forming his or her opinion. In addition, the admission of such evidence under Fla. Stat. 90.403 permits the introduction of testimony, the probative value of which is substantially outweighed by the danger of unfair prejudice.
At Page 743, the Court concludes as follows:
“We conclude that referring to consultations with
other experts creates the danger of bolstering
the credibility of the testifying expert’s opinion
without providing the opposing party the
ability to effectively cross-examine the expert
as to the basis for the opinion. Allowing the
expert to testify on direct examination that he
or she relied on consultations with other experts
creates ‘too much of a possibility of an inference
being drawn that these experts agreed’ with
the testifying expert. Schwarz, 695 So. 2d at
455. We therefore hold as a matter of law
that under the Florida Evidence Code an
expert is not permitted to testify on direct
examination that the expert relied on
consultations with colleagues or other experts
in reaching
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his or her opinion.’

This opinion breaks the tie between the First and Fourth District on this subject and makes it clear that no expert can testify as to inadmissible hearsay with respect to others’ opinions as part of the testifying expert’s direct examination.

Originally published in February 2007