Spalding v. Zatz, 5th DCA September 2011 – The 5th DCA recently held that a medical malpractice victim was not entitled to a new trial even though the defense expert’s trial testimony materially varied from his deposition testimony, and the plaintiff made no contemporaneous objection to the testimony. The appellate court found that the plaintiff had failed to timely move for a mistrial, and instead cross-examined the defense expert regarding the change in testimony and even focused on the change in the closing argument. Thus, the testimony did not rise to the level of a fundamental error where the plaintiff could not claim surprise at the expert’s opinion and the plaintiff was already prepared to address the topic of opinion with contrary evidence.
Once again, Florida’s courts have highlighted the importance of expert opinions in medical malpractice cases. Victims of medical errors need experienced attorneys who can manage the complex and unique circumstances of each medical malpractice case. That means, knowing how to ask the right questions, at the right time.