"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." (emphasis omitted
How later courts described this case
- "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." (emphasis omitted
- “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, but they are facts nonetheless.”
- “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.”
- “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.”
Written by the judges who cited it.
The opinion
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 *631 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 620. 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 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.