MICHAEL ROBINSON, AND RENT-O-KILL, INC., APPELLANTS,
v.
THOMAS A. HUNTER, ET AL., APPELLEES
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In an auto accident case, an orthopedic surgeon gave expert opinion on permanent injury based partly on a thermogram report that was not admitted into evidence or shown to the jury. The court affirmed the trial judge's decision to allow the expert to rely on the thermography data under Florida Evidence Code § 90.704, which permits experts to base opinions on facts or data reasonably relied upon by experts in their field, even if those facts or data are not independently admissible.
An expert who has been properly qualified may base an opinion on outside data if he testifies to the reliability of the scientific procedure and its acceptance by similar experts in the relevant scientific community, thereby laying a sufficient predicate. Such opinion is subject to cross-examination, with the burden on the opponent to establish sufficient grounds for exclusion.
[1] An expert may base an opinion on facts or data of a type reasonably relied upon by experts in the field, even if that data is not admissible into evidence.
[2] The reliability and acceptability of a scientific procedure used by an expert may be established by the expert's own testimony regarding its accuracy and common use by ot…
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Join FLexlaw to unlock all legal intelligence“Florida Evidence Code § 90.704 specifically permits an expert to base an opinion upon facts or data of a type reasonably relied upon by experts, though the facts or data need not be admissible.”
Establishes the statutory foundation allowing experts to rely on inadmissible data in forming opinions
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Join FLexlaw to unlock all legal intelligenceDuring an auto accident case, an orthopedic surgeon testified as an expert witness regarding permanent injury. The surgeon based his opinion in part o…
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FEDER, RICHARD Y., Associate Judge.
During the medical testimony of this auto accident case, an orthopedic surgeon gave his opinion on permanent injury based in part on a thermogram report of another expert. Neither the report nor the thermography were admitted into evidence nor shown to the jury.
The doctor testified of a familiarity with thermography; that he regularly used it as a diagnostic tool; that he regularly relied on such tests; that he considered it an accurate, reliable test; and that he used it in the diagnosis in this case. Based on such predicate, the court permitted the doctor to give his opinion. Florida Evidence Code § 90.704 specifically permits an expert to base an opinion upon facts or data of a type reasonably relied upon by experts, though the facts or data need not be admissible.
The Law Revision Council note to this section comments that the “reasonableness of the experts’ reliance on this data may be questioned on cross examination.” The note further states, “If it is feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the section requires that the facts or data ‘are of a type reasonably relied upon by experts in the particular subject.’ ”
Note must also be made of Crawford v. Shivashankar, 474 So. 2d 873 (Fla. 1st DCA 1985), which seems to indicate a necessity for the proponent to reinvent the wheel in each trial. The court there held that it is within the sound discretion of the trial court, when an expert relies upon outside data, to determine, “whether the reliability and acceptability of LCT [liquid crystal thermography] in the relevant scientific community has been adequately proven in a given case.” Id. at 875.
This court feels that where one who has otherwise been qualified as an expert testifies to the reliability of the scientific procedure and its acceptance by similar experts a sufficient predicate has been laid on which the expert may base an opinion. This opinion is subject to cross examination or voir dire with the burden on the opponent to establish sufficient bases for its exclusion.
Affirmed.
ANSTEAD and GLICKSTEIN, JJ„ concur.
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Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989)…based, at least in part, upon inadmissible [*432] information.1 Sikes v. Seaboard Coast Line R.R., 429 So. 2d 1216 (Fla. 1st DCA), review denied, 440 So. 2d 353 (Fla.1983); Gomez v. Couvertier, 409 So. 2d 1174 (Fla. 3d DCA 1982); Robinson v. Hunter, 506 So. 2d 1106 (Fla. 4th DCA), review denied, 518 So. 2d 1277 (Fla.1987). This rule is frequently utilized to permit doctors to base their medical opinions upon tests and laboratory reports which are not admitted into evidence. Bender v. State, 472 So. 2d 1370 (Fl…
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Young-Chin v. City OF Homestead, 597 So. 2d 879 (Fla. 3d DCA 1992)…t which has not been admitted into evidence, § 90.704, Fla.Stat. (1989), contrary to defendants’ assertions, Dr. Kirkpatrick did not rely on test results or studies. The doctor based his opinion on suppositions, not facts, unlike Robinson v. Hunter, 506 So. 2d 1106 (Fla. 4th DCA), review denied, 518 So. 2d 1277 (Fla.1987), where a medical expert testified on the basis of a thermogram test report that was not admitted into evidence, but which did exist. Accord Executive Car & Truck Leasing, Inc. v. DeSerio, 468…
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Kurynka v. Tamarac Hosp. Corp., Inc., 542 So. 2d 412 (Fla. 4th DCA 1989)…argue that the evidence would be admissible in any event because the report was used by the defense experts as a basis for their opinions. As a rule, experts may express opinions drawn from data that itself may not be admissible. Robinson v. Hunter, 506 So. 2d 1106 (Fla. 4th DCA), rev. denied, 518 So. 2d 1277 (Fla.1987); Bender v. State, 472 So. 2d 1370 (Fla.3d DCA 1985); § 90.704, Fla.Stat. However, an expert’s testimony may not be used merely to serve as a conduit to place otherwise inadmissible evidence bef…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crawford v. Latha Shivashankar & Allstate Ins. Co., 474 So. 2d 873 (Fla. 1st DCA 1985)