Experts can't cite talks with colleagues at trial, Florida high court says.

The Florida Supreme Court has ruled that an expert may not testify on direct examination that he or she relied on consultations with colleagues or other experts in reaching an opinion. Allowing such testimony would let the expert serve as a conduit for the opinions of others who are not subject to cross-examination, the court said. (Linn v. Fossum, 2006 WL 3093186 (Fla. Nov. 2, 2006).)

The ruling arose in a medical malpractice suit brought by Beth Linn and her husband, Anthony, against Basil Fossum. The Linns alleged that Fossum negligently failed to diagnose an injury to Beth's ureter caused by another doctor during a diagnostic laparoscopy.

In a pretrial deposition, the defense expert, urologist Dana Weaver-Osterholtz, stated that, based on her review of Beth's records, she would have inserted two stents to drain the urinary system. However, she testified that Fossum's "watch and wait" approach in treating Beth complied with the standard of care.

Weaver-Osterholtz said she reached this conclusion based on her informal presentation of the case to several other urologists whom she regarded as representative of the general urologic community. Her colleagues in this "curbside consult" were not witnesses in the trial.

The Linns sought to exclude Weaver-Osterholtz's testimony that Fossum had met the standard of care, contending that it would introduce the inadmissible hearsay opinions of the doctors she had consulted. The trial court denied the motion. The jury returned a defense verdict, and an appeals court upheld it.

In a 5-2 ruling, the Florida Supreme Court reversed, holding that the trial court had erred in admitting the disputed testimony. The court noted that under Florida's evidence rules, experts can rely on inadmissible "facts or data" in forming their opinions, but the facts or data must be "of a type reasonably relied upon by experts in the subject to support the opinions expressed."

The rules bar an expert from bolstering his or her opinion by testifying that a particular treatise supports it. An expert usually can say that he or she relied on sources that contain inadmissible information when forming an opinion, without also conveying the substance of the inadmissible information.

Writing for the majority, Justice Barbara Pariente concluded that, when the sources the expert relied on are colleagues who have responded to the expert's case-specific inquiry, "source and substance are blended."

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," Pariente wrote. If a court allowed an expert to testify on direct examination that he or she relied on consultations with other experts, the jury might infer that those colleagues agreed with the testifying expert, the court concluded.

The court found that the danger of unfair prejudice was especially pronounced when, as in the Linns' case, the expert witness held informal consultations regarding the particular facts of the case with a group of colleagues. Pariente noted that there was no way for the plaintiff in such a situation to effectively cross-examine the expert on these hearsay conversations or to determine whether the unidentified colleagues had the expertise necessary to assess whether the standard of care had been breached. Since competing expert opinions on the proper standard of care were the focal point of the trial, the court held that the error was not harmless and ordered a new trial.

Florida attorney Neal Roth of Miami, who handles medical negligence cases in the state, wasn't surprised by the decision and said the court was correct on the law.

"What the court is saying is that it's important for experts to give their opinions, not the opinions of others," Roth said. "The fundamental concept of the right to confrontation is violated when this happens."