Montonye

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSEPH MONTONYE,

Plaintiff,

v.

Case No.: 3:23-cv-254-WWB-MCR

UNITED STATES OF AMERICA,

Defendant.

/

ORDER

THIS CAUSE is before the Court on Plaintiff’s Motion to Strike Standard of Care

Expert (Doc. 41), the Government’s Response in Opposition (Doc. 43), and Plaintiff’s

Reply (Doc. 47). For the reasons set forth below, Defendant’s Motion will be granted.

I. BACKGROUND

Plaintiff, as Personal Representative of the estate of his deceased wife, Terrie

Montonye, brings a claim for negligence under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 1346(b) and 2671. (Doc. 18 at 1). Mrs. Montonye received primary medical

care and treatment from Dr. Myriame Vastey, an employee of the United States

Department of Health and Human Services, from 2015 until she succumbed to metastatic

lung cancer on April 23, 2021. (Id. at 2–5). Plaintiff alleges that Dr. Vastey’s negligent

care resulted in a significant delay in Mrs. Montonye’s lung cancer diagnosis, leading to

her death. (Id. at 5). Specifically, Plaintiff alleges negligence in the Dr. Vastey’s “fail[ure]

to timely refer Mrs. Montonye for diagnostic imaging” or to a specialist, “fail[ure] to include

cancer as a differential diagnosis,” and “fail[ure] to timely perform additional workup to

determine the cause of Mrs. Montonye’s [worsening] symptoms.” (Id. at 5–6).

As explained more fully below, Plaintiff argues in the instant Motion that

Pulmonologist Dr. Michael Bernstein, an expert witness proposed by the Government, is

not competent to testify under section 766.102(5)(a), Florida Statutes. The Government

responds that subsection (5) is not the sole path to competency, and further, that Dr.

Bernstein is qualified to testify under section 766.102(8), Florida Statutes.

II. LEGAL STANDARD & DISCUSSION

Under Federal Rule of Evidence 601, “state law governs [a] witness’s competency

regarding a claim or defense for which state law supplies the rule of decision.” In

negligence actions brought under the FTCA, state law provides the rule of decision. See

Molzof v. United States, 502 U.S. 301, 305 (1992) (collecting cases); 28 U.S.C.

§§ 1346(b)(1), 2674. Accordingly, the Eleventh Circuit and courts within this District have

held that state statutes govern the competency of expert witnesses in medical malpractice

claims brought under the FTCA. See Dutton v. United States, 621 F. App’x 962, 966

(11th Cir. 2015); Garcia v. United States, No. 3:12-cv-1369-J, 2015 WL 6750797, at *4 &

n.15 (M.D. Fla. Nov. 5, 2015).1 Section 766.102, Florida Statutes supplies the rule of

competency relevant to the instant filings and provides in part that:

(4) . . . The failure of a health care provider to order, perform, or administer

supplemental diagnostic tests shall not be actionable if the health care

1 In McDowell v. Brown, the Eleventh Circuit stated that proper analysis consists

of “first [considering] whether the expert is qualified to render an opinion regarding the

standard of care (the competency component), and [then considering] whether the

expert’s causation theory meets the strictures of Rule 702.” 392 F.3d 1283, 1295 (11th

Cir. 2004) (emphasis added). The McDowell court did not subject the proffered experts’

standard-of-care testimony to analysis under Rule 702 or Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579 (1993), which suggests that “the doctors’ competency under Georgia

law was [] sufficient to satisfy both Rule 702 and Daubert.” Adams v. Lab’y Corp. of Am.,

760 F.3d 1322, 1339 (11th Cir. 2014) (Garza, J., specially concurring). Here, neither party

has offered arguments pertaining to Rule 702 or Daubert, and the Court limits its analysis

to the issues presented.

provider acted in good faith and with due regard for the prevailing

professional standard of care.

(5) A person may not give expert testimony concerning the prevailing

professional standard of care unless the person is a health care provider

who holds an active and valid license and conducts a complete review of

the pertinent medical records and meets the following criteria:

(a) If the health care provider against whom or on whose behalf the testimony

is offered is a specialist, the expert witness must:

1. Specialize in the same specialty as the health care provider against whom

or on whose behalf the testimony is offered; and

2. Have devoted professional time during the 3 years immediately preceding

the date of the occurrence that is the basis for the action to:

a. The active clinical practice of, or consulting with respect to, the same

specialty;

b. Instruction of students in an accredited health professional school or

accredited residency or clinical research program in the same specialty; or

c. A clinical research program that is affiliated with an accredited health

professional school or accredited residency or clinical research program in

the same specialty.

. . . .

(8) If a health care provider described in subsection (5), subsection (6), or

subsection (7) is providing evaluation, treatment, or diagnosis for a

condition that is not within his or her specialty, a specialist trained in the

evaluation, treatment, or diagnosis for that condition shall be considered a

similar health care provider.

Plaintiff argues that Dr. Bernstein is not competent to testify because he does not

specialize in the same specialty—family medicine—as Dr. Vastey. Nor, as Plaintiff

argues, has Dr. Bernstein “devoted professional time during the 3 years immediately

preceding the . . . occurrence that is the basis for the action” to clinical practice, research,

or instruction in family medicine. Id. § 766.102(5)(a)1.–2.c. Because subsection (5)(a)

applies to testimony offered against or on behalf of specialists, Plaintiff’s argument rests

on the premise that family medicine is a specialty. On that point, Plaintiff offers the

Affidavit of Jennifer Sidman, M.D. (Doc. 41-1 at 1), in which Dr. Sidman swears that

“[g]eneral practitioners can be differentiated from specialists because general

practitioners are not required to complete a residency program,” and that “[f]amily

medicine is considered a medical specialty . . . because family medicine practitioners

must complete at least a three-year residency program and pass [] board exams.” This

reasoning comports with the definition of “specialist” found in Dorland’s Illustrated Medical

Dictionary 1742 (2012): “a physician whose practice is limited to a particular branch of

medicine or surgery, especially one who, by virtue of advanced training, is certified by a

specialty board as being qualified to so limit his practice.”2

The record here contains no allegations or evidence pertaining to Dr. Vastey’s

residency experience or board certification. Still, in the absence of briefing to the contrary,

the Court finds that the Government maintains the burden of establishing the qualification

of its own expert witness. See, e.g., United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004). Here, the Government neither disputes that Dr. Vastey specializes in family

medicine nor argues that Dr. Vastey is or was acting as a general practitioner. See Fla.

Stat. § 766.102(5)(b) (providing alternative qualification requirements for expert testimony

2 See also Ghamra v. Williams, 423 So. 3d 479, 483 (Fla. 2d DCA 2025) (“A

‘specialist’ is ‘[a] physician whose practice is limited to a particular branch of medicine or

surgery, especially one who is certified by a board of physicians.’” (quoting Specialty,

American Heritage Dictionary of the English Language 1669 (4th ed. 2000))); but see id.

at 484 (distinguishing between specialists and generalists and defining a generalist as

“[a]n internist, family physician, or pediatrician who performs general medicine; one who

treats most diseases that do not require surgery, sometimes including those related to

obstetrics.” (emphasis added) (quoting Generalist, Stedman’s Medical Dictionary 366900

(2014))).

concerning the standard of care as to generalists). The Court therefore accepts that Dr.

Vastey specializes in family medicine for the purposes of the instant Motion.

The Government does argue, however, that because Plaintiff alleges negligence

in Dr. Vastey’s evaluation and diagnosis of lung cancer, (see Doc. 18 at 5–6), a condition

not within Dr. Vestey’s specialty, Dr. Bernstein is qualified as a “similar health care

provider” under section 766.102(8). Dr. Bernstein is, indeed, a specialist in “the anatomy,

physiology, and pathology of the lungs.” Pulmonology, Dorland’s Illustrated Medical

Dictionary 1553 (2012). Dr. Vastey is not. Because Plaintiff alleges that Dr. Vastey was

negligent in the evaluation, treatment, and diagnosis of lung cancer—including for “failing

to [] refer Mrs. Montonye to a specialist,” (Doc. 18 at 6), Dr. Bernstein likely qualifies as a

similar health care provider. But that is insufficient to offer “expert testimony concerning

the prevailing professional standard of care” against a “specialist.” Fla. Stat.

§ 766.102(5)(a).

As Plaintiff notes, in 2013 the Florida Legislature amended section 766.102 to

preclude qualification of medical experts from specialties similar to the specialty of the

alleged tortfeasor. “The previous version of section 766.102(5)(a)1 provided that to offer

testimony against a specialist, the expert witness must ‘[s]pecialize in the same specialty

as the health care provider against whom . . . the testimony is offered; or specialize in a

similar specialty that includes the evaluation, diagnosis, or treatment of the medical

condition that is the subject of the claim and have prior experience treating similar

patients.’” Martinez v. Perez Ortiz, 346 So. 3d 744, 748 n.3 (Fla. 2d DCA 2022) (alteration

in original) (emphasis removed) (quoting Fla. Stat. § 766.102(5)(a)1. (2011)). Under the

amended subsection (5)(a), however, “any corroborating expert who is to testify against

a specialist must specialize in the ‘same’—as opposed to ‘same or similar’—specialty.”

Univ. of Fla. Bd. of Trs. v. Carmody, 372 So. 3d 246, 253 (Fla. 2023). And “Florida courts

have [] decided that ‘same specialty’ is to be taken literally and is not synonymous with

physicians with different specialties providing similar treatment to the same areas of the

body.” Riggenbach v. Rhodes, 267 So. 3d 551, 555 (Fla. 5th DCA 2019); see also Myers

v. Pasco Cnty. Sch. Bd., 246 So. 3d 1278, 1279 (Fla. 1st DCA 2018) (“A physician who

provides similar services in a different specialty does not qualify as a doctor in the ‘same

specialty’ because—quite simply—'same’ is different than ‘similar.’”). Therefore, because

subsection (8) merely provides a route for qualifying a medical expert as a similar health

care provider, it no longer provides a route for qualifying “[a] person [to] give expert

testimony concerning the prevailing standard of care” applicable to “specialist[s],” as such

witnesses must “[s]pecialize in the same specialty as the health care provider against

whom or on whose behalf the testimony is offered.” Fla. Stat. § 766.102(5)–(5)(a); see

also Silvagnoli v. Orlando Health, Inc., No. 2016-CA-006492-O, 2017 WL 11534665, at

*3 (Fla. 9th Cir. Ct. June 01, 2017); Fitzgerald v. Fla. Hosp. Med. Grp., Inc., No. 2017-CA-

8141-O, 2020 WL 10822354, at *1 n.4 (Fla. 9th Cir. Ct. Feb. 05, 2020). Moreover, Allen

v. Prison Health Servs., Inc., No. 3:07cv182, 2007 WL 9735119 (N.D. Fla. Oct. 31, 2007),

the only case the Government offers in support of its subsection (8) argument, is outdated

and thus unpersuasive in light of the 2013 amendments.

The 2013 amendments did not repeal subsection (8), which, by its terms, remains

applicable to “health care provider[s] described in subsection (5).” The Government notes

that courts interpreting Florida statutes are “generally” advised to “give full effect to all

statutory provisions and construe related statutory provisions in harmony with one

another.” Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 440 (Fla. 2013) (quotation

omitted). Doing so remains possible here because expert witnesses from “similar health

profession[s]” may still provide expert testimony against “health care provider[s] . . . other

than a specialist or a general practitioner.” Fla. Stat. § 766.102(5)(c)-(c)1. Similar

healthcare providers may not, however, provide expert testimony against specialists such

as Dr. Vastey. /d. § 766.102(5)(a)1.

lll. CONCLUSION

Therefore, it is ORDERED and ADJUDGED that Plaintiffs Motion to Strike

Standard of Care Expert (Doc. 41) is GRANTED. Pursuant to section 766.102, Florida

Statutes, Dr. Michael Bernstein may not give expert testimony concerning the prevailing

professional standard of care applicable to Dr. Myriame Vastey.

DONE AND ORDERED in Jacksonville, Florida on August 18, 2026.

UNITED STATES T JUDG

Copies furnished to:

Counsel of Record