MONICA A. GUTIERREZ, etc., et al., Petitioners,
JOSE LUIS VARGAS, M.D., etc., et al., Respondents.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Application for Review of the Decision of the District Court
of Appeal - Direct Conflict of Decisions Third District -
Case Nos. 3D13-1923 and 3D14-0048 (Dade County)
Kurzban and Jed Kurzban of Kurzban, Kurzban, Weinger, Tetzeli
& Pratt, P.A., Miami, Florida; and Bambi G. Blum of Bambi
G. Blum, P.A., Miami, Florida, for Petitioner.
Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld
& Stein, P.A., Miami, Florida; and Ilisa W. Hoffman of
Ilisa W. Hoffman, P.A., Coral Gables, Florida, for
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 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.
case arises out of a medical malpractice action brought by
Petitioners against Respondent, Jose Luis Vargas, M.D. (Dr.
Vargas). 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. Dr. Vargas
contended Monica suffered not from C1q nephropathy but from
membranoproliferative glomerulonephritis (MPGN),
acute kidney disease which could not have been diagnosed
sooner. The parties 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
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 specialty' rule and
for materially misrepresenting evidence in closing
arguments." Id. at 318.
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),  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.
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
"ONE EXPERT PER SPECIALTY" ORDER
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.
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. 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 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.
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.
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 otherwise-impermissible 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
"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).
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
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))).
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 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
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
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.
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).
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 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 ...