Defense Digest, Vol. 30, No. 1, March 2024

Limiting the Opinions of Plaintiff’s Non-Retained Expert Witnesses Regarding Injury Causation and Permanency

Key Points:

  • Plaintiff’s non-retained experts are treating physicians, and their testimony at trial should be limited to their scope of treatment, diagnosis, and prognosis with respect to the injuries alleged. 
  • Plaintiff’s treating physicians lack the proper foundation to provide expert opinion testimony on medical causation and permanency unless they take the plaintiff’s history relating to an incident and review the records of the plaintiff’s other physicians.

When a plaintiff discloses a treating physician as a non-retained medical expert, this non-retained expert’s testimony should be limited to exclude testimony regarding medical causation and permanency unless there is a proper predicate for such testimony. To lay the proper predicate, the physician must have reviewed the plaintiff’s medical records from other treating physicians, and the physician should obtain a history from the plaintiff that describes the manner in which the plaintiff was allegedly injured. 

For instance, in a slip and fall case, the history should include the manner in which the plaintiff allegedly slipped and fell. Where the treating physician fails to review the medical records from the plaintiff’s other medical providers and fails to obtain a history of how the plaintiff allegedly came to be injured, there is an argument that the non-retained expert/treating physician should be precluded from testifying about injury causation and permanency.

Pursuant to § 90.702, Fla. Stat., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and other applicable Florida law, a trial court must make two preliminary factual determinations prior to permitting expert testimony: (1) whether the expert testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue; and (2) whether the witness is qualified by knowledge, skill, experience, training, or education to express an opinion on the matter.

Under Daubert, the trial court is specifically assigned a gatekeeper task of ensuring that an expert’s testimony, whether scientific or non-scientific, rests on a reliable foundation and is relevant to the task at hand. Id. See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 148-49 (1999); Corwin v. Walt Disney World Co., 475 F.3d 1239, 1250 (11th Cir. 2007). 

In Cooper v. Marten Transp., Ltd., 539 Fed. Appx. 963, 967 (11th Cir. 2013), the Eleventh Circuit explained that causation “could not be determined through a physical examination and the chronology of events alone.” The court further noted in that case that neither physician explained the basis for their opinions. Id. 

Courts frequently exclude causation opinion testimony of expert witnesses who base their opinions on a plaintiff’s account of the facts without consideration of other possible causes of injury. See Carmody v. State Farm Mut. Auto. Ins. Co., 2015 WL 5542534, at *3 (M.D. Fla. Sep. 18, 2015).

Moreover, even if an expert is qualified, the expert must have a sufficient factual predicate underlying those opinions. Florida Statute § 90.705(2), explicitly states: “[i]f the [opposing] party establishes prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.” 

The legislative history of the rule emphasizes that this subsection intends to provide protection for opposing counsel so that expert opinions that are completely unqualified will not be admitted and risk prejudicing the jury. See Florida Statute § 90.705, Law Revision Counsel Note (1976). “In this instance, the protection of using cross-examination to expose the flaws in the opinion is not sufficient in all cases.” Id.

In a recent slip and fall case in Broward County, Florida, the plaintiff disclosed a non-retained expert/treating physician who was a pain management specialist. This doctor had not been provided and had not otherwise reviewed any medical records regarding the plaintiff’s post-incident treatment, other than his own records. He had not obtained a history from the plaintiff of how the plaintiff had allegedly slipped and fallen or how the plaintiff was allegedly injured. In this particular case, the physician admitted in deposition that he was not retained to provide any opinion testimony regarding any permanent injury. 

The opinions of the physician regarding the plaintiff’s medical condition were based solely on subjective statements made by the plaintiff, that the alleged injuries occurred as a result of the incident (without any history of the incident itself or how the plaintiff came to be injured as a result of the incident), together with the medical treatment related to the physician’s care of the plaintiff (in a vacuum, without any medical treatment history related to the care and treatment provided by the plaintiff’s other treating physicians).
There was no record evidence of any attempt by the non-retained expert/treating physician to eliminate other possible causes of the plaintiff’s conditions. Additionally, there was no record evidence that this physician conducted a review of the plaintiff’s pre- or post-incident medical history. Accordingly, it was reasonable to conclude that the doctor intended to identify the condition for treatment purposes rather than to determine its exact source. See generally, Turner v. Iowa Fire Equipment, Co., 229 F.3d 1202, 1205 (8th Cir. 2000). Furthermore, none of the plaintiff’s medical records revealed information to demonstrate that the doctor made any “attempt to consider all the possible causes, or to exclude each potential cause until only one remained, or to consider which of two or more non-excludable causes was more likely to have caused the condition.” Id. at 1208 (holding that the trial court did not abuse its discretion in excluding treating physician causation opinion, based exclusively upon the medical history obtained from the plaintiff, which indicated no respiratory problems, and the temporal relationship between the incident and the onset of symptoms); see also, e.g., State, Div. of Risk Mgmt. v. Martin, 690 So.2d 651 (Fla. 1st DCA 1997) (holding that a doctor’s testimony did not constitute competent substantial evidence as to causation because it was based on speculation, made without knowledge of claimant’s relevant medical history, and based “virtually entirely” upon claimant’s false report of causal connection between the accident and a subsequent surgery); In re Paoli R. R. Yard PC’B Litigation, 35 F.3d 717 (3d Cir. 1994) (holding that for purposes of determining admissibility of expert medical testimony, part of differential diagnosis is using standard techniques to rule out alternative causes and, thus, where defendant points to a plausible alternative cause and the doctor offers no explanation for why he or she has concluded that was not the sole cause, the doctor’s methodology is unreliable); Berry v. CSX Transp. Inc., 709 So.2d 552, 571 (Fla. 1st DCA 1998) (holding that expert witness’ testimony regarding causation of a railroad employee’s malady was admissible in toxic tort litigation, as the expert employed a scientifically acceptable differential diagnosis method in an attempt to eliminate other possible causes of symptoms and his opinion was not based upon the employee’s personal history, medical records, physical examinations, and medical tests, but upon sufficient epidemiological data, facts, and personal observations); David v. Nat’l R.R. Passenger Corp., 801 So. 2d 223, 227 (Fla. 2d DCA 2001).

On the other hand, in the recent Broward County case, we argued that the defendants’ experts could opine regarding issues of causation because they actually applied standard techniques of differential diagnosis through the review of prior medical records, examinations, diagnostic films, discovery, depositions, investigation, statements, and photographs.

The Circuit Court in Broward County granted the defendants’ motion in limine to preclude causation opinions from the plaintiff’s treating non-retained physician. In our case, we had the perfect storm of the physician not having taken a history as to how the incident occurred or how the alleged injuries were caused by the incident, coupled with the plaintiff’s attorney not having provided any other treatment records to the physician, as well as the physician’s concession that he was not retained to provide an opinion on permanency. However, based on the case law, the argument to preclude opinion testimony by a treating physician as to causation and permanency should not hinge on whether the latter concession is made by the physician during deposition. 

*Tom is special counsel in our Orlando, Florida, office. He can be reached at (407) 420-4418 or Frank Madia is an associate in our Orlando office who can be reached at (407) 420-4410 or Heather, also in our Orlando office, is an associate who can be reached at (407) 505-4680 or


Defense Digest, Vol. 30, No. 1, March 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact