Florida Supreme Court rejects Daubert standard and same specialty standard for expert testimony in medical malpractice cases

In a February 16 opinion, the Florida Supreme Court stated that it declined to adopt, to the extent that they are procedural, two changes to the Evidence Code: the Daubert amendment and the Same Specialty amendment. Legal observers called the decision a victory for consumers, as both amendments would have imposed stricter controls on expert witness testimony. In rejecting the two changes, the Court cited “grave constitutional concerns” and the recommendation of the Evidence Rules Committee.

Florida’s Daubert amendment was passed by the state legislature and signed into law by Governor Rick Scott in 2013. The law replaced the Frye standard, under which expert testimony is permitted as long as it is generally accepted in its specific field, with the Daubert standard, used by federal courts, under which the trial judge must rule on the reliability of the expert testimony before it can be offered to the jury. Florida’s Constitution provides that the judicial branch has sole authority over procedural rules of court, while the legislature makes substantive law, so the state high court rejected the Daubert standard to the extent that it is procedural.

The Supreme Court also rejected the Same Specialty amendment, which would require an expert witness on the issue of standard of care in a medical malpractice trial to be from the exact same specialty, as opposed to just a similar specialty, as the medical care provider against whom the testimony is offered. In declining to adopt this standard, the court cited the chilling effect that the stricter rule would have on the ability of an injured patient to obtain an expert witness in a medical malpractice lawsuit, thus interfering with the constitutional right of access to the judicial system and a jury trial.

Robert Joyce honored with 2016 Champion of Justice award

Attorney Robert Joyce will receive the 2016 Champion of Justice award from the Tampa Bay Trial Lawyers Association. This prestigious award has only been given seven times in the past, and it is only presented to attorneys who have demonstrated an exceptional lifetime commitment to the service of justice.

The Tampa Bay Trial Lawyers Association is a non-profit organization of attorneys who represent consumers. The group seeks to recognize excellence in advocacy, and has chosen to bestow Mr. Joyce with its highest honor.

The seven past recipients of the award are Hon. James D. Whittemore, Tiny Geiger, Esq., Edwin T. Mulock, Esq., Hon. E.J. Salcines, Bill Wagner, Esq. and C. Steven Yerrid, Esq. Mr. Joyce is honored to join this esteemed company.

Mr. Joyce’s previous professional achievements include an “AV” rating from Martindale-Hubbell, the group’s highest rating, which is only earned by the top 13 percent of attorneys nationally, and certification as a Civil Trial specialist by the Florida Bar Board of Legal Specialization, a distinction earned by only seven percent of Florida attorneys. Mr. Joyce has served as lead counsel in more than 200 civil jury trials, and frequently shares his expertise through lectures to national and international audiences.

The formal presentation of the Champion of Justice award will take place at the annual Gala of TBTLA, to be held in September 2016.

Convicted Florida pill mill owner testifies in doctor’s murder trial

Jeffrey George, a convicted Florida pill mill owner, testified in the trial of a doctor accused of murder in the overdose death of a patient.

George, who is serving a prison sentence for his involvement in a pain clinic conspiracy, testified that Dr. Gerald Klein was aware that the business model of the clinic was to keep patients on addictive drugs like oxycodone.

Klein, 81, is charged with first-degree murder in the death of Joey Bartolucci, 24, one of his patients. Prosecutors said that Klein prescribed Bartolucci a high dosage of hydromorphone pills as well as Xanax in February 2009, and that Barolucci died of an overdose the next day.

George testified that Klein was aware that the East Coast Pain Clinic accepted cash only, that patients must pay $150 before seeing a doctor, and that no procedures were performed. George said that Klein was paid $4,300 per week for three days of work.

George is serving a 15 ½ year prison sentence after pleading guilty to federal charges related to the drug conspiracy.

In addition to facing criminal charges, pill mill owners and doctors may face civil lawsuits for pharmaceutical negligence filed by people who were injured by improper prescriptions. If you or a loved one suffered an injury as the result of pharmaceutical negligence, contact Joyce & Reyes for a free consultation.