Date: 03-22-2018

Case Style: Monica A. Gutierrez, et al. v. Juse Luis Vargas, M.D., et al.

Case Number: AC15-1924

Judge: Labarga

Court: Supreme Court of Florida on appeal from the Circuit Court of Dade County

Plaintiff's Attorney: Marvin Kurzban, Jed Kurzban and Bamba G. Blum

Defendant's Attorney: Dinah Stein, Erik P. Bartenhagen and Ilisa W. Hoffman

Description: Petitioner Monica A. Gutierrez (“Monica”), together with her parents Javier and Monica E. Gutierrez (collectively “Petitioners”), seeks review of the decision of the Third District Court of Appeal in Vargas v. Gutierrez, 176 So. 3d 315 (Fla. 3d DCA 2015), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained herein, we hold the trial court did not abuse its discretion when it allowed Monica’s treating physicians to testify during trial as to their diagnostic opinions and permitted Petitioners to present rebuttal testimony from a second pathology expert. We further hold that
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any prejudice attributable to comments made during Petitioners’ closing argument
was insufficient to warrant a new trial. We therefore quash the decision of the
Third District with respect to those issues.1
BACKGROUND
This case arises out of a medical malpractice action brought by Petitioners
against Respondent, Jose Luis Vargas, M.D. (Dr. Vargas).2 Dr. Vargas served as
Monica’s pediatrician from shortly after her birth in August 2000 until she was six
years old. Petitioners claimed that, during that time, Dr. Vargas negligently failed
to diagnose Monica with a chronic kidney disease known as C1q nephropathy,
which severely damaged Monica’s kidneys and forced her to undergo a kidney
transplant in May 2007.3 Dr. Vargas contended Monica suffered not from C1q
nephropathy but from membranoproliferative glomerulonephritis (MPGN),4 an
acute kidney disease which could not have been diagnosed sooner. The parties
1. Respondent Dr. Vargas asks this Court to quash the Third District’s
decision insofar as it affirmed the trial court’s denial of his motion for directed
verdict. We decline to address this issue.
2. The business entity under which Dr. Vargas operated his practice is also a
party to this case.
3. In addition to Monica’s personal damages and medical expenses,
Monica’s parents brought a separate loss of consortium claim.
4. This condition is also referred to as rapidly progressing
glomerulonephritis (RPGN).
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relied heavily on expert testimony concerning pathology, pediatrics, and kidney
disease to support their cases. During pretrial proceedings, the trial court entered a
uniform order providing “[e]ach party is limited to one (1) retained expert per
specialty. No other expert testimony shall be permitted at trial.” The case went to
trial in August 2012, and a mistrial was declared after three days. After a second,
fourteen-day trial in April 2013, a jury awarded Petitioners $3,831,476 in damages.
Petitioners then moved for additur, which Dr. Vargas accepted, and the trial court
entered a final judgment award of $4,101,476. Dr. Vargas moved for a new trial
on the issue of liability only, and the trial court denied the motion.
Dr. Vargas appealed to the Third District Court of Appeal, asserting that the
trial court erred by denying his motion for directed verdict because Petitioners’
evidence was insufficient to prove he proximately caused Monica’s injury.
Vargas, 176 So. 3d at 321-22. Dr. Vargas also contended he was entitled to a new
trial on liability because the trial court had erroneously allowed Petitioners to
present testimony from multiple expert witnesses in the same area of specialty in
violation of a pretrial order, and because Petitioners’ counsel made improper
comments during closing arguments. Id. at 322, 326. The Third District affirmed
the trial court’s denial of Dr. Vargas’s motion for directed verdict, but reversed and
remanded for a new trial “based on the plaintiffs’ violation of the ‘one expert per
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specialty’ rule and for materially misrepresenting evidence in closing arguments.”
Id. at 318.
Petitioners sought review from this Court, arguing that the Third District’s
decision conflicts with Cantore v. West Boca Medical Center, Inc., 174 So. 3d
1114 (Fla. 4th DCA 2015),5 and other cases, because it improperly limits the
testimony of treating physicians and rebuttal experts. In Cantore, the Fourth
District held in part “that the jury should hear from a plaintiff’s treating
physicians—as in more than one, when there are more than one involved—
regarding their care, recommendations, and medical decision-making.” Id. at 1119
(citing Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA
1998)). Petitioners also argue that the Third District erred in holding that
Petitioners’ closing arguments “mischaracterized the evidence, were highly
improper, and materially prejudiced Dr. Vargas.” Vargas, 176 So. 3d at 327.
This review follows. A trial court’s decision not to grant a new trial is
reviewed for abuse of discretion. Brown v. Estate of Stuckey, 749 So. 2d 490,
497-98 (Fla. 1999). The issue of whether a district court’s decision on appeal “was
contrary to the standards set forth by this Court . . . presents a pure question of law,
and our review is de novo.” Van v. Schmidt, 122 So. 3d 243, 252 (Fla. 2013).
5. That case is currently pending before this Court. Cantore v. W. Boca
Med. Ctr., Inc., No. SC15-1926 (Fla. reply brief filed Mar. 23, 2017).
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THE “ONE EXPERT PER SPECIALTY” ORDER
The Third District held the trial court abused its discretion by denying
Dr. Vargas’s motion for a new trial after it allowed Petitioners to call “not one, but
four separate pathologists at trial to testify regarding the timing and diagnosis of
[Monica’s] disease.” Vargas, 176 So. 3d at 320 (emphasis removed). As the
district court notes, the trial court had limited each party to one retained expert per
specialty by pretrial order. Id.
During trial, Petitioners offered the deposition testimony of Dr. Victor
Pardo, a pathologist who examined a biopsy of Monica’s kidneys before the
transplant. Petitioners also presented Dr. Philip Ruiz, a pathologist who examined
Monica’s native kidneys after they were removed. Petitioners also presented two
expert witnesses to testify with respect to the pathology of Monica’s condition:
Dr. Arthur Cohen testified during Petitioners’ case-in-chief and Dr. Byron Croker
testified as Petitioners’ rebuttal expert.6 Each of these four pathologists testified
that Monica suffered from C1q nephropathy and gave an opinion as to the timing
of the disease’s progression. The Third District held the trial court abused its
discretion by failing to enforce its pretrial order, and granted a new trial “because
the plaintiffs were able to call four expert pathologists . . . and each pathologist
6. Petitioners were allowed to present Dr. Croker because, at that point in
the trial, Dr. Cohen was unavailable to testify.
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was permitted to give his opinion on the nature and duration of Monica’s illness,
which unfairly prejudiced Dr. Vargas, who was limited to only one pathology
expert on that subject.” Id. at 322.
A trial court’s enforcement of its own pretrial order is reviewed for abuse of
discretion, and reversal is appropriate only when the affected party can clearly
show the abuse resulted in unfair prejudice. Binger v. King Pest Control, 401 So.
2d 1310, 1313 (Fla. 1981). We hold that admitting the testimony of Dr. Pardo and
Dr. Ruiz did not violate the pretrial order because they testified as Monica’s
treating physicians, not as expert witnesses. We further hold the trial court did not
abuse its discretion by allowing Dr. Croker to testify in rebuttal.
Treating Physicians
Testimony given by treating physicians blurs the boundary between fact
testimony and expert testimony because treating physicians and expert medical
witnesses both possess “scientific, technical, or other specialized knowledge”
which informs their testimony. § 90.702, Fla. Stat. (2017). Because of this
specialized knowledge, an expert is permitted to render an otherwiseimpermissible
opinion about the evidence where such an opinion is helpful to the
jury. § 90.703, Fla. Stat. (2017) (expert witness may give opinion or inference on
ultimate issue); see also Estate of Murray v. Delta Health Group, Inc., 30 So. 3d
576, 578 (Fla. 2d DCA 2010) (expert may testify to ultimate issue, but may not
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“render an opinion that applies a legal standard to a set of facts”). Experts assist
the jury by testifying “regard[ing] a technical matter of which the jury [does] not
have basic knowledge.” State Farm Mut. Auto. Ins. Co. v. Bowling, 81 So. 3d 538,
540 (Fla. 2d DCA 2012). Conversely, we have held that expert testimony should
be excluded when the facts testified to “were within the ordinary experience of the
jurors and did not require any expertise beyond the common knowledge of the
jurors” to form a reasoned judgment of the facts. Johnson v. State, 393 So. 2d
1069, 1072 (Fla. 1980).
While an expert witness assists the jury to understand the facts, a treating
physician testifies as a fact witness “concerning his or her own medical
performance on a particular occasion and is not opining about the medical
performance of another.” Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186
(Fla. 3d DCA 2005). This necessarily involves testifying with regard to the
exercise of the treating physician’s specialized medical knowledge as applied to
other facts of the case, namely the plaintiff’s symptoms. A treating physician is a
fact witness, and testifies to past facts based on personal knowledge. Those facts
involve a technical matter about which the jury lacks basic knowledge, see
Bowling, 81 So. 3d at 540-41, but they are facts nonetheless. The treating
physician’s perception of the plaintiff’s symptoms, their diagnostic opinion, and
their recommendation of a particular treatment are all facts in issue. An expert
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witness testifies with the benefit of hindsight, whereas a treating physician does
not. See Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290-91 (Fla. 3d DCA
1998) (“Treating physicians do not acquire their ‘expert knowledge for the purpose
of litigation but rather simply in the course of attempting to make [their] patient
well.’ ”) (alteration in original) (quoting Frantz v. Golebiewski, 407 So. 2d 283,
285 (Fla. 3d DCA 1981))).
Treating physicians are limited to their medical opinions as they existed at
the time they were treating the plaintiff, while an expert may form new opinions in
order to help the trier of fact decide the case. See Tetrault v. Fairchild, 799 So. 2d
226, 227-28 (Fla. 5th DCA 2001) (ordering a new trial where treating physician
gave opinion testimony based on MRIs he had not seen during treatment).
Although a treating physician may possess the same qualifications as an expert
witness, treating physicians form medical opinions in the course of rendering
treatment and may therefore testify to the fact that they formed those opinions, and
explain why they did so, provided such testimony is otherwise admissible. See
Ryder, 715 So. 2d at 290-91. For example, Dr. Vargas is also a pediatrician and
has specialized technical knowledge beyond the ordinary experience of a lay juror.
Neither party contends, however, that the “one expert per specialty” rule prevents
Dr. Vargas from testifying as to the facts of how and why he diagnosed Monica or
recommended a particular course of treatment, despite the involvement of his
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medical opinion in such testimony. Similarly, it was permissible for Dr. Pardo and
Dr. Ruiz to testify in their capacities as Monica’s treating physicians in order to
allow the jury to determine the ultimate issue presented by the case in light of all
the relevant facts.
A witness’s ability to testify as a treating physician is predicated on the
witness’s having provided the plaintiff with the medical treatment which is the
subject of the witness’s testimony. In its decision below, the Third District held
that Dr. Pardo should be considered an expert witness rather than a treating
physician because he “never saw or administered care to Monica or spoke directly
to Dr. Paredes.” Vargas, 176 So. 3d at 319.7 Similarly, the Third District also held
Dr. Ruiz should not be considered a treating physician because “[s]imilar to Dr.
Pardo, Dr. Ruiz did not ever see or administer care or treatment to Monica, did not
communicate with Dr. Paredes, and did not offer an opinion as to the cause,
identity, or duration of Monica’s kidney disease.” Id. The Third District further
explained that Dr. Pardo and Dr. Ruiz testified during trial to findings they had not
made during Monica’s treatment, and “the first time the doctors had rendered these
opinions was during their testimony at trial.” Id. at 325.
7. Dr. Ana Paredes was the pediatrician who admitted Monica to Miami
Children’s Hospital in October 2006 and oversaw her clinical treatment.
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As the term suggests, a physician becomes a “treating physician” when the
physician participates in treatment: that is, when the physician applies medical
knowledge and judgment to render care or assist with care. The concept of
“treatment” in modern medicine is very broad. Patients with complex or long-term
medical problems may be treated by teams composed of several physicians, each
with a different specialty, all of whom play an essential role in the patient’s care.
Pathologists are such specialists. A pathologist studies “all aspects of disease, but
with special reference to the essential nature, causes, and development of abnormal
conditions, as well as the structural and functional changes that result from the
disease processes.” Stedman’s Medical Dictionary 1442 (28th ed. 2006) (defining
“pathology”). Even though a pathologist may never see the patient in person, they
may still be liable for medical malpractice committed against that patient. See
Hickman v. Emp’rs’ Fire Ins. Co., 311 So. 2d 778, 779 (Fla. 4th DCA 1975)
(malpractice case against pathologist who, examining patient’s gallbladder,
“negligently failed to notice the attached bile duct” which a surgeon had
negligently removed along with the gallbladder); see also Variety Children’s Hosp.
v. Osle, 292 So. 2d 382 (Fla. 3d DCA 1974) (malpractice case against pathologist
who negligently commingled tissue samples, resulting in injury).
Dr. Pardo and Dr. Ruiz may never have stood at Monica’s hospital bedside,
but they assisted with Monica’s care by investigating the pathology of her
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condition and diagnosing the disease based on those investigations. Furthermore,
although the Third District correctly states that Dr. Ruiz “examined Monica’s
kidney only after Dr. Paredes had already determined that Monica’s kidneys could
not be saved and after Monica’s kidneys were removed,” 176 So. 3d at 325,
Dr. Ruiz performed his examination for the purpose of identifying and diagnosing
the disease from which Monica suffered, in order to ensure she continued to
receive the proper treatment and that the disease which caused her native kidneys
to fail would not harm her transplanted kidney. The timing of his examination in
no way alters the purpose for which it was done. Had Dr. Ruiz negligently failed
to diagnose a disease process which later harmed Monica’s transplanted kidney, he
himself could have been liable for providing deficient medical care. See Hickman,
311 So. 2d at 779 (pathologist negligently examined gallbladder which had already
been removed from patient); see also Osle, 292 So. 2d at 383 (pathologist
negligently mixed samples of cysts after cysts were surgically removed from
patient). Therefore, Dr. Pardo and Dr. Ruiz were among Monica’s treating
physicians, and their testimony as to the facts of their treatment of Monica did not
violate the trial court’s limitation on expert witness testimony.
Not all medical opinions formed by a treating physician are automatically
admissible, however. “It is entirely possible that even a treating physician’s
testimony could cross the line into expert testimony.” Fittipaldi USA, 905 So. 2d
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at 186 n.1; see also Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 771
(Fla. 3d DCA 2003) (noting there is no “black letter rule whereby the testimony
offered by a treating practitioner is never considered for purposes of a one-expertper-
side limitation”). If a treating physician testified to a medical opinion formed
for the purpose of litigation rather than treatment, then the mere fact that the
physician once treated the plaintiff would not prevent that doctor from being
considered an expert witness. See Fairchild, 799 So. 2d at 228 (treating physician
was expert witness because he “was called by the plaintiff not to testify to his ‘care
and treatment’ of plaintiff but to render an opinion as a neuroradiologist based
upon his review of MRIs supplied to him in plaintiff’s counsel’s office”). Again,
the determination turns on the role played by the witness: if the treating physician
gives a medical opinion formed during the course and scope of treatment in
fulfillment of their obligation as a physician, then the physician is a fact witness,
albeit a highly qualified one. If, however, the treating physician gives an opinion
formed based on later review of medical records for the purpose of assisting a jury
to evaluate the facts in controversy, the physician acts as an expert witness, and
should be considered as such. See Suarez, 844 So. 2d at 771 (holding it is
improper for a treating physician to “serve[] as a conduit to place specialist
testimony before the jury, or offer[] medical opinions based on specialist reports”
when testifying as a lay witness rather than an expert).
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Although Dr. Vargas argues, and the Third District assumed, that Dr. Pardo
and Dr. Ruiz formed their diagnostic opinions in preparation for trial rather than
for purposes of treatment, the record does not support this conclusion. Dr. Pardo
testified that his pathology study of Monica’s kidneys showed “proliferative
glomerulonephritis with C1q deposits.” He also testified as to his estimate of how
long Monica’s condition had taken to develop, and made clear that he formed this
conclusion as part of his pathology study. The questions asked during his
deposition were limited to the pathology study of Monica’s kidney tissue that he
himself had conducted, and were not based on later review of other records.8
Dr. Ruiz’s testimony was also limited to his own pathology study of Monica’s
tissue.9 Dr. Pardo and Dr. Ruiz testified to the facts of their participation in
Monica’s treatment, which necessarily included their diagnostic reasoning and
8. Although Dr. Pardo testified that he had reviewed his report and slides in
preparation for giving testimony, this does not change our analysis: four years had
passed between the time of Dr. Pardo’s study and the taking of his deposition.
Dr. Pardo testified that he performs “around 350” pathology studies each year. He
did not give testimony that involved review of any materials other than those
involved in his original study of Monica.
9. During trial, Petitioners’ counsel sought several times to elicit comment
from Dr. Ruiz with respect to Dr. Pardo’s pathology report, despite the fact that
Dr. Ruiz had not reviewed that report in the course of treating Monica. Dr. Vargas
objected each time, and the court sustained each objection on the ground that a
treating physician could not comment on reports he did not review during
treatment.
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conclusions. Therefore, Dr. Pardo and Dr. Ruiz were fact witnesses rather than
additional expert witnesses.
Cumulativeness
Although treating physicians do not necessarily fall within the scope of a
“one expert per specialty” limitation, their testimony may nevertheless be excluded
if it is cumulative. As the Fifth District Court of Appeal has explained, the Florida
Evidence Code
expressly requires a trial judge to exercise reasonable control over the
presentation of the evidence so as to avoid the needless consumption
of time, and . . . relevant evidence is inadmissible if its probative
value is substantially outweighed by a needless presentation of
cumulative evidence. Furthermore, Florida Rule of Civil Procedure
1.200(b)(4) specifically provides that at a pretrial conference, a trial
court may consider and determine a limitation on the number of
expert witnesses.
Woodson v. Go, 166 So. 3d 231, 233 (Fla. 5th DCA 2015). There is no exception
for medical malpractice cases. Id. As the rule suggests, cumulativeness alone is
not sufficient grounds to exclude evidence: the probative value of the evidence
must be “substantially outweighed” by the danger of “needless presentation of
cumulative evidence.” § 90.403, Fla. Stat. (2017) (emphasis added); see also
Delgardo v. Allstate Ins. Co., 731 So. 2d 11, 16 (Fla. 4th DCA 1999) (“The real
issue facing the trial court was whether a witness will offer testimony that
unnecessarily duplicates the testimony of another witness, in which case the trial
court has discretion to limit or exclude it.”). Courts should exercise their discretion
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to avoid the needless waste of time through unnecessary presentation of cumulative
evidence. Woodson, 166 So. 3d at 233.
In Delgardo, the Fourth District Court of Appeal determined the testimony
of one orthopedic surgeon was not cumulative to the testimony of a second
orthopedic surgeon, both of whom had treated the plaintiff. 731 So. 2d at 11-12.
The trial court had not entered a pretrial order limiting each side to one expert per
specialty. Id. at 14. Instead, the district court reviewed a trial court’s order
granting a new trial on the grounds that the testimony of the two surgeons was
cumulative and repetitive. Id. In holding that the testimony of the two surgeons
was not cumulative, the Fourth District explained:
While two proposed witnesses of the same medical specialty might
indicate the possibility of cumulative evidence, the real question is
whether they will testify to cumulative opinions based on the same
facts. Clearly a party is not necessarily guilty of calling duplicative
witnesses simply because she calls two witnesses of the same medical
specialty. The testimony of the second surgeon in this case
establishes rather clearly that his evidence was based in part on the
same facts and evidence as the first’s but also in part on new facts and
evidence. Therefore as a matter of law it was not cumulative.
Id. at 16. This explanation illustrates the difference between cumulative testimony,
which courts have discretion to exclude, and relevant confirmatory testimony,
which they do not. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1259 (Fla.
2014) (holding that courts have no discretion to exclude relevant evidence that is
otherwise admissible). The two treating surgeons in Delgardo both testified to the
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same medical conclusion, but did so based on separate facts gleaned from their
independent examinations of the plaintiff during the course of treatment. 731 So.
2d at 12-13. Although the testimony of one surgeon tended to confirm the
conclusions of the other, neither surgeon engaged in improper bolstering, nor was
one’s testimony cumulative to the other’s. Id. at 16.
In the present case, the trial court did not abuse its discretion when it
concluded that the testimony of Dr. Pardo and Dr. Ruiz, though confirmatory, did
not rise to the level of unnecessary cumulativeness. Each pathologist based his
testimony on a separate review of different slides made from biopsy material
collected at different times. Although their respective testimony expressed similar
conclusions, Dr. Pardo and Dr. Ruiz each testified to their personal observations
“based in part on the same facts and evidence . . . but also in part on new facts and
evidence.” Delgardo, 731 So. 2d at 16 (emphasis removed). Therefore, their
testimony was not cumulative. Furthermore, for the reasons discussed above, their
testimony was not cumulative to the testimony of Petitioners’ pathology experts:
Dr. Pardo and Dr. Ruiz testified to what they observed and concluded during
Monica’s treatment. Dr. Cohen and Dr. Croker, in contrast, testified to opinions
formed based on the review of not just the evidence available to Monica’s treating
pathologists, but other evidence in the case as well. Although Petitioners’ fact
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witnesses and expert witnesses testified to similar conclusions, this does not render
their testimony cumulative.
Petitioners’ Rebuttal Witness
The Third District also held the testimony of Dr. Croker, Petitioners’ sole
rebuttal witness, was improper:
In rebuttal, rather than recalling Dr. Cohen to address portions of
Dr. Craver’s testimony he had not addressed, the plaintiffs called a
fourth expert pathologist witness, Dr. Croker, to testify about three of
the slides Dr. Craver[, Dr. Vargas’s pathology expert,] had examined.
This rebuttal testimony was largely unnecessary, totally
cumulative, and served only to bolster the testimony of the plaintiffs’
three prior expert pathologists, as Dr. Cohen had already given his
opinion about the nature and timing of the disease.
176 So. 3d at 326. Trial courts have broad discretion to admit rebuttal testimony,
and “a trial court abuses that discretion when it limits non-cumulative rebuttal that
goes to the heart of the principal defense.” Mendez v. John Caddell Constr. Co.,
700 So. 2d 439, 440-41 (Fla. 3d DCA 1997).
As we have explained, Dr. Croker was not Petitioners’ fourth expert
pathology witness: Dr. Pardo and Dr. Ruiz did not testify as experts, but as treating
physicians. Dr. Croker’s testimony was not cumulative to Dr. Cohen’s testimony
because Dr. Croker testified exclusively about evidence which Dr. Cohen did not
address in his testimony. See Delgardo, 731 So. 2d at 16 (testimony is not
cumulative if it is based on evidence not discussed by prior testimony).
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Specifically, Dr. Croker discussed photographs of pathology slides taken by
Dr. Cohen in his review of the case. In his testimony during Petitioners’ case-inchief,
Dr. Cohen discussed some—but not all—of the photos he had taken. The
defense pathology expert, Dr. Randall Craver, discussed the remaining
photographs during Dr. Vargas’s case-in-chief. On rebuttal, Dr. Croker discussed
only the photographs introduced during Dr. Craver’s testimony. This second set of
photographs was only introduced in Dr. Vargas’s case-in-chief, and Dr. Cohen did
not discuss those photographs at all. Therefore, Dr. Croker’s testimony was not
cumulative to Dr. Cohen’s testimony.
Furthermore, Dr. Croker’s testimony did not improperly bolster Dr. Cohen’s
testimony. Improper bolstering occurs when an expert testifies on direct
examination that some other authority not subject to cross-examination, such as
another expert whom the witness consulted or a secondary treatise, agrees with the
testifying expert’s opinions. See Linn v. Fossum, 946 So. 2d 1032, 1039 (Fla.
2006) (“[A]n expert is not permitted to testify on direct examination that the expert
relied on consultations with colleagues or other experts in reaching his or her
opinion.”). This prohibition applies “the general rule that it is improper on direct
examination to introduce evidence to support the credibility of a witness” to the
testimony of expert witnesses. Id. The reasons for this rule are twofold: first, such
testimony “indicates a group consensus based on hearsay that would not be
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conveyed by testimony that the expert relied on records, tests, or reports from . . .
medical providers directly involved in the diagnosis or treatment of the patient.”
Id. Second, “[t]he opposing party is unable to cross-examine the nontestifying
experts who participated in the consultation[,]” and “there is no way for the trial
court to assess whether the consulting expert, upon whom the testifying expert
relied in whole or in part, is herself qualified or had a proper foundation.” Id. In
other words, “opinion testimony by consensus is essentially immune to challenge”
and is therefore inadmissible. Id. Here, nothing in Dr. Croker’s testimony
indicates that he consulted with Dr. Cohen about the truth or accuracy of his
conclusions, and none of Dr. Croker’s testimony references Dr. Cohen’s analysis
of the evidence. Dr. Croker gave his own independent opinion and did not bolster
the testimony of Dr. Cohen.
Dr. Croker’s testimony also was not improper rebuttal. “Rebuttal evidence
explains or contradicts material evidence offered by a defendant.” Britton v. State,
414 So. 2d 638, 639 (Fla. 5th DCA 1982). During its case-in-chief, a plaintiff
must establish a prima facie case, but is not required to anticipate possible defenses
by affirmatively addressing them in its case-in-chief. See Heberling v. Fleisher,
563 So. 2d 1086, 1087 (Fla. 4th DCA 1990) (holding that the plaintiff need not
“disprove all anticipated defenses in its main case—that is exactly what rebuttal is
supposed to accomplish”). When not cumulative, rebuttal is appropriate to
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discredit an opposing party’s defense or to challenge the conclusions of an
opposing party’s expert. See Griefer v. DiPietro, 708 So. 2d 666, 672 (Fla. 4th
DCA 1998) (holding exclusion of rebuttal expert was improper where expert’s
“rebuttal testimony would have explained and contradicted material evidence
offered by [defendant]”).
Here, the intended effect of Dr. Croker’s testimony was to discredit
Dr. Vargas’s expert, Dr. Craver, by showing that even the evidence upon which
Dr. Craver relied supported a diagnosis of C1q nephropathy rather than MPGN.
“Rebuttal to challenge the calculations of a defense expert is permissible rebuttal
evidence.” Id. at 672 (citing Zanoletti v. Norle Props. Corp., 688 So. 2d 952 (Fla.
3d DCA 1997)). Therefore, Dr. Croker’s testimony was permissible rebuttal, and
the trial court did not abuse its discretion by admitting it.
Finally, although allowing Dr. Croker to testify did permit Petitioners to call
a second expert witness in a particular specialty despite the pretrial order, the trial
court did not abuse its discretion in doing so. Compliance with pretrial orders
prevents the injustice and waste of resources which result when counsel resorts to
trial tactics which seek to ambush opposing parties. See Binger, 401 So. 2d at
1314. “Counsel who disobey a trial court order entered months earlier should not
be rewarded for their conduct.” Fla. Marine Enters. v. Bailey, 632 So. 2d 649, 652
(Fla. 4th DCA 1994). The relevant facts of a case “should be the determining
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factor rather than gamesmanship, surprise, or superior trial tactics.” Binger, 401
So. 2d at 1313 (quoting Dodson v. Persell, 390 So. 2d 704, 707 (Fla. 1980)).
Furthermore, although the enforcement of a pretrial order rests within a trial
court’s considerable discretion, this discretion “must not be exercised blindly” and
should be applied with due consideration of possible prejudice to the parties.
Binger, 401 So. 2d at 1314. The Florida Rules of Civil Procedure aim “to
eliminate surprise, to encourage settlement, and to assist in arriving at the truth.ˮ
Id. at 1313 (quoting Spencer v. Beverly, 307 So. 2d 461, 462 (Fla. 4th DCA 1975)
(Downey, J., specially concurring)). A trial court enters orders in the expectation
they will be obeyed, and the parties in turn rely on the sound discretion of the trial
court to ensure an orderly and fair administration of justice.
In the present case, the trial court permitted Dr. Croker to testify because
Dr. Cohen was unavailable during rebuttal. The record reflects the parties knew
well in advance that Dr. Cohen would be unable to return to testify on rebuttal, and
there was no possibility that Dr. Vargas would be unfairly surprised by his
testimony. Given Dr. Cohen’s unavailability, the trial court did not abuse its
discretion by permitting Dr. Croker to testify despite its pretrial order.
Accordingly, we hold the trial court did not abuse its discretion by
permitting Dr. Croker, Dr. Pardo, and Dr. Ruiz to testify.
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IMPROPER ARGUMENT
The Third District also determined that Petitioners’ counsel had made
improper comments during closing argument which misstated the evidence
introduced at trial. During closing argument, Petitioners’ counsel stated, “[I]f the
kidneys could have been saved, this child never would have needed any of this.
It [sic] would have needed some steroids, some ace [sic] inhibitors, and that’s it.
That’s what Dr. Kaplan told you.”10 Dr. Vargas objected that this comment was
outside the evidence. The trial court overruled the objection, and instructed the
jurors to “please recall and rely on [their] own recollection of the evidence.”
Dr. Kaplan testified during trial that, with proper diagnosis and treatment,
Monica’s prognosis would have been “significantly better,” and that other patients
with C1q nephropathy who have received such treatment “have almost universally
gone on to do well and remain in remission and not require dialysis or transplant.”
Dr. Kaplan stated that the sooner a diagnosis was made and treatment was started,
the better Monica’s prognosis would have been. He also testified that patients who
10. Dr. Bernard Kaplan was Petitioners’ expert witness in pediatric
nephrology.
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are correctly diagnosed in the early stages of kidney disease can be successfully
treated with “medications” and that some patients “may not need to be treated with
medications in stage one.”
The Third District concluded that Petitioners’ reference in closing argument
to steroids and ACE inhibitors rather than “medications” was “particularly
prejudicial, and, when combined with the cumulative expert testimony, [it]
warrant[s] a new trial.” 176 So. 3d at 326 (emphasis added). As we have
explained previously, the Third District’s conclusions regarding “cumulative”
expert testimony in this case were erroneous. Therefore, according to the Third
District’s own analysis, any prejudice arising out of this comment was insufficient
by itself to warrant a new trial. We agree. However inadvisable it may have been,
the single comment made by Petitioners’ counsel did not have the potential to
compromise the fairness of the proceeding such that a new trial would be required.
CONCLUSION
Based upon the foregoing, we hold the trial court did not abuse its discretion
by permitting Dr. Pardo and Dr. Ruiz to testify as Monica’s treating physicians,
nor by permitting Dr. Croker to testify as a rebuttal expert in this case. We also
hold that the comment made by Petitioners’ counsel during closing argument does
not merit a new trial. Accordingly, we quash the decision of the Third District
with respect to those issues, approve the Fourth District’s decision in Cantore to
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the extent it held a treating physician may testify regarding their care and treatment
of the plaintiff, and remand the present case to the Third District for further
proceedings consistent with this decision.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., dissents with an opinion, in which LAWSON, J., concurs.
POLSTON, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
CANADY, J., dissenting.
The Third District’s decision in Vargas v. Gutierrez, 176 So. 3d 315 (Fla. 3d
DCA 2015), does not expressly and directly conflict with the Fourth District’s
decision in Cantore v. West Boca Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th
DCA 2015), on the same question of law. See art. V, § 3(b)(3), Fla. Const.
Because this Court lacks jurisdiction to review Vargas, I dissent.
In Vargas, the relevant issue addressed by the Third District was whether
four medical professionals (pathologists) called by the plaintiffs at trial were all
expert witnesses. Vargas, 176 So. 3d at 322-26. This determination was important
because of a pretrial order limiting each side to one expert witness per specialty
area. Id. at 320. Vargas examined the different methods for distinguishing
medical professionals testifying as expert witnesses from medical professionals
testifying as treating physician fact witnesses. Id. at 323-25. Vargas ultimately
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concluded that the four witnesses all gave expert testimony and that the trial court
thus abused its discretion by allowing the plaintiffs to violate the pretrial order. Id.
at 322. The majority here disagrees with Vargas and instead concludes that two of
the witnesses were treating physicians testifying as fact witnesses and that one of
the other witnesses was properly allowed to testify as an expert witness on rebuttal.
Majority op. at 13-14, 21. In doing so, the majority recognizes that a treating
physician can in fact be an expert witness, depending “on the role played by the
witness.” Majority op. at 12. Nothing in Vargas suggests otherwise.
In Cantore, the Fourth District addressed a very specific limitation on the
admissibility of “subsequent treating physician” testimony presented by defendant
physicians in medical malpractice actions. The narrow issue in Cantore was
whether certain hypothetical deposition testimony was proscribed by Saunders v.
Dickens, 151 So. 3d 434 (Fla. 2014)—namely, whether a subsequent treating
physician impermissibly testified “that adequate care by the defendant physician
would not have altered the subsequent care.” Cantore, 174 So. 3d at 1117 (quoting
Saunders, 151 So. 3d at 442). Cantore ultimately concluded that the testimony at
issue was “properly admitted.” Id. at 1121. In doing so, Cantore distinguished the
testimony under consideration from that in Saunders, noting that, among other
things, the testifying physician in Cantore specifically testified “that he would have
made different recommendations” if he had been told that the patient’s true
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condition was as the plaintiffs suggested. Id. at 1120. Cantore also distinguished
the role of the testifying physician there from the role of the testifying physician in
Saunders. For example, Cantore described the testifying physician as “a neutral
third-party witness,” unlike the subsequent treating physician in Saunders who was
a defendant in the case at the time of his deposition. Id. at 1121. Cantore also
described the testifying physician as an intimately involved “co-treating” physician
rather than a “subsequent” treating physician. Id. at 1119. And Cantore
repeatedly referred to the testifying physician as an “expert” witness. See id. at
1115, 1119-20. In fact, Cantore concluded in part that the disputed testimony was
admissible because it was proper expert testimony given by an expert witness:
Objections, based on speculation and improper hypothetical, to the
admissibility of Dr. Sandberg’s testimony were properly overruled
because as a treating physician, neurosurgeon, and expert on July 3,
2008, Dr. Sandberg was qualified to answer even questions which
assumed certain facts which did not occur, as experts are allowed to
do.
Id. at 1120 (emphasis added). In short, the only question of law decided by
Cantore was that Saunders did not apply to the testimony presented under the very
different factual circumstances in Cantore.
Vargas and Cantore undoubtedly both involve medical malpractice cases
and the testimony of certain “treating” physicians, but the decisions in the two
cases do not expressly and directly conflict on the same question of law. See art.
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V, § 3(b)(3), Fla. Const. Because this Court does not have jurisdiction to review
Vargas, I dissent.
LAWSON, J., concurs.
POLSTON, J., dissenting.
The Third District Court of Appeal’s decision in Vargas v. Gutierrez, 176
So. 3d 315 (Fla. 3d DCA 2015), does not expressly and directly conflict with the
decisions alleged by the Gutierrezes. Therefore, this Court does not have the
constitutional authority to review this case, and I respectfully dissent.
Specifically, the Third District’s decision in Vargas does not conflict with
the Fourth District’s decision in Cantore v. West Boca Medical Center, Inc., 174
So. 3d 1114 (Fla. 4th DCA 2015). As the majority recognizes, the Third District’s
decision in Vargas analyzed whether disputed testimony from multiple physicians
should be considered treating physician testimony or whether the testimony
constituted expert witness testimony that violated the trial court’s pretrial ruling
that “[e]ach party is limited to one (1) retained expert per specialty.” Majority op.
at 3. Ultimately, the Third District held that the testimony from the four physicians
was expert witness testimony that unfairly prejudiced Dr. Vargas. Vargas, 176 So.
3d at 322. In contrast, the Fourth District in Cantore, 174 So. 3d at 1119, held that
the physician’s testimony in that case was not prohibited by this Court’s decision
in Saunders v. Dickens, 151 So. 3d 434, 442 (Fla. 2014), because the specific
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physician was not a “subsequent treating physician,” which was at issue in
Saunders, but was instead a “co-treating physician, and thus his role squarely
exceeded that of a subsequent treating physician.” In other words, Vargas
analyzed the difference between treating physician testimony and expert physician
testimony, whereas Cantore analyzed the difference between subsequent treating
physician testimony and co-treating physician testimony. Because these are two
different legal issues, the two decisions do not conflict.
Accordingly, I respectfully dissent.

Outcome: Affirmed

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