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Rules Governing Expert Witness Disclosure and Admissibility in Florida and Federal Courts

The rules of procedure and evidentiary requirements governing expert witnesses in Florida state courts are similar to the analogous federal rules. However, important distinctions exist.
Florida Rule of Civil Procedure 1.280(b)(4) and Federal Rule of Civil Procedure 26(a)(2) and (b)(4) set forth the applicable expert witness disclosure requirements in state and federal courts in Florida. The two rules are similar. But they have important differences.

In Florida, the identity of each person a party expects to call at trial must be disclosed if the information is requested through interrogatories. Under the Florida Rules of Civil Procedure, however, no written report from the expert is required.

In contrast, in federal court litigation, parties must disclose the identity of each person that may be called to testify at trial. Under the Federal Rules of Civil Procedure, a written report must accompany the expert witness disclosures if the witness is retained or specially employed to provide expert testimony or if the witness’s duty involves regularly providing expert testimony.

The analysis governing the admissibility of expert witness testimony is also different in state and federal courts in Florida. To determine whether an expert’s testimony is admissible under Florida Rule of Evidence 90.403, Florida courts apply the following four-part test: 1.) The opinion evidence must be helpful to the trier of fact; 2.) The witness must be qualified; 3) The opinion evidence must be applied to evidence offered at trial; and 4.) The evidence must not present a substantial danger of unfair prejudice that out-weighs its probative value. CSX Transp., Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991).

In the Eleventh Circuit, federal district courts engage in the following three-part inquiry to determine the admissibility of expert testimony under Federal Rule of Civil Procedure 702: 1.) The expert is qualified to testify regarding the matters he intends to address; 2.) The methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (11th Cir. 1993); and 3.) The testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998); see also Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK LTD., 326 F.3d 1333 (11th Cir. 2003) (discussing expert witness qualification standards).

Additional differences exist concerning litigation involving expert witnesses in state courts and federal courts in Florida. If you have any questions about Florida or federal court litigation, please contact Julie Sneed.

Julie Sneed Elected President of the Tampa Bay Chapter of the Federal Bar Association

Julie Sneed, a shareholder in the Firm's Class Actions Practice Group, has been elected president of the Tampa Bay Chapter of the Federal Bar Association (FBA). The FBA, founded in 1920, is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors.

Ms. Sneed’s practice focuses on complex litigation in state and federal courts. Her practice encompasses a broad range of complex litigation matters, including commercial litigation, employment litigation, insurance and financial services-related litigation, and class actions. Ms. Sneed is AV peer review rated by Martindale-Hubbell. She received her B.S. from the University of Florida and her J.D., With Honors, from Florida State University College of Law.

Report Calls Florida Workers' Comp Insurance Market "Competitive"

Florida's annual report on workers' compensation insurance says Florida's market is "competitive," and its availability is not a significant problem. The clean bill of health contrasts with problems plaguing Florida's auto and property insurance systems.
Read full story at Miami Herald (free reg. req'd).

Florida Tells HHS It's Adversely Affected by Medical-Loss Ratio

The state of Florida continues to carry the banner of agents on the medical-loss ratio issue and has petitioned federal health regulators to review the decision not to exempt Florida from the rule. In a Dec. 30 letter to the U.S. Department of Health and Human Services, Florida's Office of Insurance Regulation said the provision of the health-care insurance-reform law limiting administrative costs to 20 percent of premiums is harming the state's insurance market.
Read full story at National Underwriter.

SEC Accuses Life Insurance Company of Systemic Fraud

Waco-based Life Partners Holdings and three of its top executives were accused by the Securities and Exchange Commission of "systematically and materially" misleading investors about the life expectancy of people whose life insurance policies it traded. The scheme inflated the value of the company's stock, according to a suit that the SEC's Fort Worth office filed in federal court in Waco.
Read full story at Star-Telegram.

Bill Cracks Down on Fraud-Related Personal Injury Protection

Legislation designed to crack down on the fraud that leads to more expensive personal injury protection insurance required of all Florida drivers was filed by state Sen. Joe Negron. Negron's bill (SB 1860) targets fraud issues that have resulted in skyrocketing premiums in some metropolitan areas of Florida.
Read full story at Miami Herald (free reg. req'd).

Insurers Paid Out Record $105 Billion in 2011 Catastrophe Losses

Japan's earthquake and U.S. storms helped make 2011 the costliest year on record for insurance companies in terms of natural-disaster losses, according to Munich Re. Several "devastating" earthquakes and a large number of weather-related catastrophes cost insurers $105 billion, more than double the natural-disaster figure for 2010 and exceeding the 2005 record of $101 billion, the world's biggest reinsurer said in an e-mailed statement.
Read full story at Bloomberg.

Home Insurers Expected to Increase Rates in Wake of Disasters

Homeowners insurance premiums are starting to rise after tornadoes, hail, winds and lightning slammed U.S. insurance companies' balance sheets throughout 2011. Storms along the East Coast, tornadoes in the Southeast and in Joplin, Mo., and earthquakes in Japan and New Zealand wreaked havoc on insurance company finances, especially firms that might have too many policyholders in certain geographic areas, says Bob Skow, CEO of the Independent Insurance Agents of Iowa.
Read full story at USA Today (free reg. req'd).

P/C Buyers Face Choice of Bigger Premiums or More Risk

Property/casualty insurers may be poised to raise their prices but buyers may not be in a position to pay more, advises a veteran of insurance cycles. While buyers may not be willing to pay higher rates, they may however be willing to accept more risk, says Jerry Sullivan, chairman, The Sullivan Group in Los Angeles.
Read full story at Insurance Journal.

Florida Works to Close Loophole Increasing Workers' Comp Rates

The fight is on to close a loophole that's driving up workers' compensation insurance rates in Florida. Rates are going up because the doctors who are treating those workers are increasingly dispensing repackaged drugs out of their own offices, with huge mark-ups.
Read full story at Naples Daily News.

Small Businesses Urged to Have Insurance to Cover Cyber Crime

Cyber criminals are advancing as fast as the technology built to stop them, and small firms are becoming increasingly vulnerable to attacks. Thus, one expert says small-business owners should also consider whether their insurance policies would cover the losses and damage.
Read full story at The Washington Post (free reg. req'd).

Changing Health System Will Alter Medical Malpractice Industry

The evolving U.S. health care delivery system presents both opportunities and challenges for medical professional liability insurers, according to an analysis by Moody's Investors Service. The analysis notes that the medical professional liability insurance market is "highly fragmented" with more than 200 insurers.
Read full story at Business Insurance.

Insurers Expected to Continue Dealing with Extreme Weather

From floods that crippled countries, to mega cyclones, huge blizzards, killer tornadoes to famine-inducing droughts, 2011 has been another record-breaker for bad weather. While it is too early to predict what 2012 will be like, insurers and weather prediction agencies point to a clear trend: the world's weather is becoming more extreme and more costly.
Read full story at Reuters.

Insurer Suing Google for Displaying Negative Websites About Firm

An insurer is hoping to use an Alabama state law governing deceptive trade practices to stop Google from prominently displaying negative websites about the company. American Income Life Insurance Co. has filed suit in the Jefferson County Alabama Circuit Court charging that Google, along with several websites, are violating state law by "intentionally disparaging the goods, services, or business of the plaintiff by false and misleading representations of fact."
Read full story at Insurance Journal.

Insurance Broker Gets No Indemnity in $30M Copyright Judgment

A judge has ruled that an insurance broker and its employee are not entitled to indemnity under their "advertising injury" coverage for a $30 million judgment levied against them in a federal copyright infringement suit. The suit alleged they copied from a rival broker's documents and used it for their own.
Read full story at Pittsburgh Post-Gazette.