# Third District Court of Appeal

State of Florida

Opinion filed August 26, 2015.

Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D14-48 & 3D13-1923

Lower Tribunal No. 08-47844

________________



### Jose Luis Vargas, M.D., etc., et al.

,

Appellants,

vs.



### Monica A. Gutierrez, etc., et al.

,

Appellees.

Appeals from the Circuit Court for Miami-Dade County, Beatrice A.

Butchko

, Judge.

Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah Stein and Mark Hicks;

Ilisa W. Hoffman

, for appellants.

Bambi G. Blum; Kurzban Kurzban Weinger Tetzeli & Pratt, and Marvin

Kurzban and Jed Kurzban

, for appellees.

Before SHEPHERD, ROTHENBERG and SCALES, JJ.

ROTHENBERG, J.2

Jose Luis Vargas, M.D., and Jose Luis Vargas, M.D., P.A. (collectively,

“Dr. Vargas”) appeal the trial court’s denial of their motion for a directed verdict

and, in the alternative, for a new trial. We affirm the denial of Dr. Vargas’s motion

for a directed verdict but reverse and remand for a new trial based on the plaintiffs’

violation of the “one expert per specialty” rule and for materially misrepresenting

the evidence in closing arguments, both of which unfairly and materially

prejudiced Dr. Vargas and denied him his right to a fair trial.

FACTUAL BACKGROUND

Monica Gutierrez (“Monica”) and her parents (collectively, “the plaintiffs”)

brought this action against Dr. Vargas for his alleged negligent failure to timely

diagnose Monica’s kidney disease, which ultimately led to renal failure, dialysis,

and multiple kidney transplants. The jury entered a verdict in favor of the

plaintiffs in the amount of $4,101,776.

The following facts are undisputed. Monica Gutierrez (“Monica”) was born

in August 2000, and Dr. Vargas was Monica’s primary pediatrician for the first six

years of her life. During that six-year period, Monica’s parents brought Monica to

Dr. Vargas for several routine checkups. During these checkups, Dr. Vargas took

urine samples from Monica consistent with typical practice. The urinalyses from

these samples revealed elevated levels of protein in Monica’s urine

— a potential

indicator of kidney disease

— in five separate tests over the first three years of3

Monica’s life. Dr. Vargas did not follow up on these test results, believing that

each of the samples had been contaminated with bacteria because Monica was still

in diapers. Record testimony established that it is quite common for infants to

have bacterial contamination of their urine samples due to constant contact with

bacteria in their diapers. Although Monica was small and underdeveloped for her

age, she otherwise exhibited no symptoms of any illness and appeared healthy.

After a sixth urine specimen showed no elevated protein levels, no further urine

samples were collected or tested during the following three years when Monica

was between the ages of three and six.

During September 2006, however, Monica began exhibiting abnormal

symptoms, including periodic episodes of swelling around her eyes and in her legs,

excessive drinking and urination, and abnormal weight gain of six pounds over a

one-month period of time. Dr. Vargas was not notified of these symptoms, and no

treatment was sought until October 2006 when Monica’s condition worsened and

her parents brought her to Miami Children’s Hospital (“MCH”). At that point,

Monica had an elevated temperature and swelling of her lower extremities, and she

was suffering from renal (kidney) failure.

Monica was immediately examined by Dr. Paredes, a pediatric nephrologist,

who took a kidney biopsy and sent the tissue sample to Dr. Victor Pardo, a

pathologist at MCH, for examination and diagnosis. Dr. Pardo examined several4

tissue slides from the kidney biopsy and noted elevated levels of C1q protein.

Based on these findings, Dr. Pardo diagnosed Monica with “Diffuse Proliferative

Immunecomplex Glomerulonephritis.” Dr. Pardo finalized his conclusions in a

written report that was sent to Dr. Paredes, but Dr. Pardo never saw or

administered care to Monica or spoke directly to Dr. Paredes. Importantly, Dr.

Paredes never made a formal diagnosis of the underlying disease that caused the

kidney failure or offered any opinion regarding the onset or duration of Monica’s

kidney disease.

Due to the severity of the damage to Monica’s kidneys, Dr. Paredes placed

Monica on dialysis until a kidney donor could be located. Approximately seven

months later, Monica underwent successful kidney transplant surgery, and her

diseased kidneys were removed. Following the transplant, one of the removed

kidneys was sent to a different pathologist at MCH, Dr. Philip Ruiz, for further

examination. Dr. Ruiz noted in his report that the tissue on the kidney was

severely scarred to the point that he could not accurately diagnose what

disease had caused the damage

, but he opined that the kidney had failed due to a

chronic immune complex disease. Similar to Dr. Pardo, Dr. Ruiz did not ever see

or administer care or treatment to Monica, did not communicate with Dr. Paredes,

and did not offer an opinion as to the cause, identity, or duration of Monica’s5

kidney disease. While Monica’s kidney transplant was successful, she will likely

need dialysis and additional kidney transplants during her lifetime.

Monica and her parents brought a medical malpractice suit against Dr.

Vargas in 2008, alleging that Dr. Vargas should have followed up on Monica’s

positive urine samples and that, if he had done so, Monica could have been treated

for her disease and been able to avoid dialysis and kidney failure. The plaintiffs

allege that Monica’s kidney failure is the result of a disease called C1q

nephropathy, which takes years to cause the type of damage to Monica’s kidneys

that she had at the time of her admittance to MCH and should have been

discovered by Dr. Vargas before the disease caused end-stage renal failure.

C1q nephropathy is a very rare disease that causes C1q proteins to build up

in the kidneys, which damages and scars the kidneys over time. C1q nephropathy

is a recently discovered form of kidney disease that is often referred to as a “silent

killer” because C1q patients can display no symptoms right up to the point of renal

failure. Indeed, there are often no outward indications that anything is wrong with

C1q patients until they have reached late-stage kidney disease with swelling, high

blood pressure, high cholesterol, and occasionally fever. One of the only ways to

accurately diagnose C1q nephropathy is to have the patient submit to a biopsy of

her kidney and to have a pathologist examine the tissue to determine if there are

elevated levels of C1q protein in the patient’s kidney samples.6

Conversely, Dr. Vargas contends the disease that destroyed Monica’s

kidneys was not the chronic, longstanding disease of C1q nephropathy, but rather a

faster-moving disease called Rapidly Progressive Glomerulonephritis (“RPGN”).

Dr. Vargas also contends that even if the underlying disease was in fact C1q

nephropathy and Dr. Vargas had correctly diagnosed the illness, there was nothing

that Dr. Vargas could have done to prevent Monica’s renal failure and the resulting

dialysis and kidney transplants. In other words, Dr. Vargas claims that the dialysis

and kidney transplants were inevitable due to the nature of Monica’s disease, and

any action or inaction on his part did not cause Monica’s injuries.

These issues were hotly disputed at trial, and both sides sought to introduce

testimony from various medical experts regarding both the diagnosis and the

treatment of the disease. 1 Thus, Dr. Vargas filed a motion in limine to prevent the

plaintiffs from presenting cumulative expert testimony regarding the timing and

diagnosis of the disease, specifically arguing that Drs. Pardo and Ruiz should not

be permitted to render expert opinion testimony on that subject and should be

confined to offering factual testimony as “treating physicians.” Judge Platzer, who

was presiding over the case at the time, granted Dr. Vargas’s motion in part and

1 Pathologists, who essentially function as diagnostic experts who examine tissues

and laboratory tests to reach a diagnosis, are best equipped to testify regarding the

diagnosis of Monica’s disease, whereas nephrologists, who specialize in treating

diseases of the kidneys, are best equipped to testify whether Monica’s disease

could have been treated at certain stages of the disease’s progression and, if so,

with what types of medication.7

limited both sides to “one expert per specialty.” Judge Platzer’s ruling also

specifically prohibited the plaintiffs from using the treating physicians to elicit

expert opinion testimony regarding the timing of the disease

. Judge Platzer

retired before the case was resolved, and Judge Butchko was substituted in her

place midway through the proceedings.

Despite Judge Platzer’s ruling, the plaintiffs called not one, but four

separate pathologists at trial to testify regarding the timing and diagnosis of the

disease: (1) Dr. Pardo, who analyzed the biopsy when Monica was initially

admitted to MCH; (2) Dr. Ruiz, who analyzed one of Monica’s kidneys after they

were removed during Monica’s transplant surgery; (3) Dr. Cohen, who examined

several tissue samples at the plaintiffs’ behest and was the plaintiffs’ designated

expert pathologist; (4) and Dr. Croker, who the plaintiffs called as an expert

rebuttal witness following Dr. Vargas’s case-in-chief. All of these pathologists

testified that, in their medical opinion

, the disease was most likely chronic C1q

nephropathy that had been developing over a four-to-six-year period. Importantly,

Drs. Pardo and Ruiz had not made these findings or diagnosed C1q nephropathy

during their initial examination of the kidneys. Conversely, Dr. Vargas was only

permitted to call one pathologist: his designated expert, Dr. Craver, who testified

that Monica’s renal failure was caused by RPGN, which would have been present8

for only four to six months rather than four to six years and would have been

virtually undetectable prior to Monica’s hospitalization.

Additionally, each side was permitted to call an expert pediatric nephrologist

to testify regarding the respective courses C1q nephropathy and RPGN would take

and what treatment options would have been available at various stages of the

diseases. This testimony was critical to establish causation, i.e., that Dr. Vargas

could have done something to prevent total kidney failure necessitating the dialysis

and kidney transplant if he had correctly diagnosed Monica’s disease or referred

her to a nephrologist when he initially discovered the positive protein tests several

years prior.

The plaintiffs’ designated expert nephrologist, Dr. Bernard Kaplan, testified

largely in generalities, stating that, “In all likelihood, [Monica’s] outcome would

have been much better than it was without any treatment.” Dr. Kaplan reiterated

similar statements about Monica’s chances for recovery several times. When

finally asked to quantify how different the result would have been had C1q been

diagnosed earlier, Dr. Kaplan refused to specifically state that Monica would have

recovered in full or that she would not have needed to go on dialysis or have

kidney transplant surgery had her disease been diagnosed earlier. Instead, he

testified that: “Patients [in general] with C1q nephropathy who have been

diagnosed on the basis of proteinuria alone without any other abnormalities have9

almost universally gone on to do well and remain in remission and not require

dialysis or transplant.” Then, when asked whether “the fact that she stayed

asymptomatic for such a long period of time indicate[d] that there was a large

window of opportunity to salvage [Monica’s kidneys],” Dr. Kaplan replied: “I

think I’ve implied that in my previous answers. Yes.” Dr. Kaplan did not,

however, state what sort of treatment, if any, was available for C1q nephropathy or

whether these treatments would have been available in Monica’s particular case.

Dr. Vargas’s designated expert nephrologist, Dr. Christopher Clardy, also

testified regarding the treatment of RPGN and C1q nephropathy. Dr. Clardy stated

that Monica’s kidney failure could only have been a result of RPGN due to the

progression of the disease. Dr. Clardy stated that there was no known treatment

for the types of C1q nephropathy that could have caused Monica’s renal failure, so

even assuming Monica had C1q nephropathy and Dr. Vargas had made that

diagnosis after the first urine test, Monica still would have required dialysis and a

kidney transplant. Specifically, Dr. Clardy testified:

[I]t would not have made a difference [if Dr. Vargas had known

Monica had C1q nephropathy after the first positive urine test].

. . . There’s no known treatment for either of those two [types of C1q

nephropathy]. People have attempted to treat it. Some people do

better. Some patients do better than others, but there’s no

acknowledged therapy for either of those [types of C1q nephropathy].

So even if you had known back in, you know, 2001 or you know some

time after that, there would have been nothing that you would have

done differently that would have caused any different outcome.

. . . .10 If she had had C1q nephropathy, which is one of the two types

that can cause chronic kidney insufficiency, yes. She would have

probably still needed dialysis unfortunately and a transplant.

Dr. Clardy also testified that if Monica had RPGN instead of C1q nephropathy,

there is no way that Dr. Vargas could have discovered the disease in time to save

Monica’s kidneys.

In closing argument, plaintiffs’ counsel told the jury that Monica clearly had

C1q nephropathy, not RPGN, because so many doctors

— including her treating

physicians

— had opined that C1q had caused the kidney failure

. The

plaintiffs’ counsel also argued that Dr. Kaplan had stated that Monica could have

been completely cured with the use of some steroids and ACE inhibitors had she

been diagnosed earlier. This testimony, however, was completely fabricated by the

plaintiffs’ counsel, as Dr. Kaplan provided no such testimony. Although Dr.

Vargas timely objected, the trial court failed to rule on his objection and merely

instructed the jury to rely on its recollection of the testimony. The jury ultimately

found in Monica’s favor, awarding over $4 million in damages. This appeal

followed.

LEGAL ANALYSIS

I. The denial of Dr. Vargas’s motion for a directed verdict

This Court reviews a trial court’s ruling on a motion for a directed verdict de

novo, but it must view the evidence in the light most favorable to the nonmoving11

party. Tricam Indus. v. Coba

, 100 So. 3d 105, 108 (Fla. 3d DCA 2012). Thus, we

may reverse only if there is no evidence upon which the jury could legally base a

verdict in favor of the nonmoving party. Posner v. Walker

, 930 So. 2d 659, 665

(Fla. 3d DCA 2006).

Although the evidence presented by the plaintiffs as to causation was

extremely weak, because the plaintiffs presented some evidence that treatment

could have either halted or slowed the disease had Monica’s kidney disease been

diagnosed earlier, we affirm the trial court’s denial of Dr. Vargas’s motion for a

directed verdict. See Friederich v. Fetterman & Assocs.

, 137 So. 3d 362, 365 (Fla.

2013) (reiterating that where there is conflicting evidence as to causation, the

appellate court may not reweigh the evidence or substitute its judgment for that of

the trier of fact).

II. The denial of Dr. Vargas’s motion for a new trial

We review the trial court’s denial of Dr. Vargas’s motion for a new trial for

an abuse of discretion. See Miami-Dade Cnty. v. Asad

, 78 So. 3d 660, 664 (Fla.

3d DCA 2012). We hold that the trial court erred by denying Dr. Vargas’s motion

for a new trial because the plaintiffs were able to call four expert pathologists over

Dr. Vargas’s objections, and each pathologist was permitted to give his opinion on

the nature and duration of Monica’s illness, which unfairly prejudiced Dr. Vargas,

who was limited to only one pathology expert on that subject. Additionally, the12

trial court should have sustained Dr. Vargas’s objections and given a curative

instruction when the plaintiffs’ counsel misstated crucial pieces of evidence

regarding causation and bolstered the plaintiffs’ experts’ testimony during closing

arguments. These errors deprived Dr. Vargas of a fair trial, and thus, a new trial is

required. See Hurst v. State

, 18 So. 3d 975, 1015 (Fla. 2009) (“Where multiple

errors are found, even if deemed harmless individually, ‘the cumulative effect of

such errors’ may ‘deny to defendant the fair and impartial trial that is the

inalienable right of all litigants.’” (quoting Brooks v. State

, 918 So. 2d 181, 202

(Fla. 2005))). 2

A. The trial court erroneously allowed the plaintiffs to present

cumulative expert testimony in contravention of its pre-trial “one

expert per specialty” rule.

A new trial is required in this case in large part because the trial court erred

by allowing the plaintiffs to call four experts with the same medical specialty,

pathology, to testify regarding the timing and nature of the disease that caused

Monica’s injuries. Which precise disease caused Monica’s symptoms

— RPGN or

C1q nephropathy

— was the primary dispute at trial. Both illnesses can cause

symptoms like those displayed by Monica, and both illnesses often end in complete

2 Hurst is, of course, a criminal case, but its reasoning regarding cumulative error is

sound when applied in civil cases as well. See Kiwanis Club of Little Havana, Inc.

v. de Kalafe

, 723 So. 2d 838, 840-41 (Fla. 3d DCA 1998) (finding that the

“cumulative effect” of several improper rulings deprived the civil defendant of a

fair jury trial).13

renal failure requiring dialysis and kidney transplants. Accordingly, both the

plaintiffs and Dr. Vargas relied on expert testimony to establish which disease

caused Monica’s injuries. The trial court unfairly limited Dr. Vargas to one expert

on this topic while allowing the plaintiffs to call four. In a case such as this that

often devolves into a battle of the experts, the plaintiffs’ ability to call four experts

with the same medical specialty to support their position may well have unfairly

swayed the jury to decide the case in the plaintiffs’ favor.

The trial court’s pre-trial order below expressly limited each side to one

expert witness per specialty area. The so-called “one expert rule” limiting the

presentation of cumulative expert testimony is common in pre-trial orders,

particularly in medical malpractice cases, because cases disputing the standard of

care or damages incurred often come down to a “battle of the experts.” See Olesky

ex rel. Estate of Olesky v. Stapleton

, 123 So. 3d 592, 594 (Fla. 2d DCA 2013)

(“The trial, like many medical malpractice cases, became a ‘battle of the

experts.’”). The rationale supporting the one expert rule is that by limiting each

party to one expert per specialty, the case will not be decided by which side has the

assets to afford more expert witnesses to sway the jury, but rather, it will be

decided on the credibility of the single best expert each side can present on the

issue. The authority for the one expert rule derives from the trial court’s inherent

authority to control the trial proceedings and presentation of evidence. Gold, Vann14

& White, P.A. v. DeBerry ex rel. DeBerry

, 639 So. 2d 47, 56 (Fla. 4th DCA 1994);

see also Carpenter v. Alonso

, 587 So. 2d 572, 573 (Fla. 3d DCA 1991); Maler ex

rel. Maler v. Geraldi

, 502 So. 2d 973, 974 (Fla. 3d DCA 1987).

We typically review a trial court’s ruling on evidentiary matters, including

the admissibility and presentation of cumulative evidence and the exclusion of

witnesses, for an abuse of discretion. Stager v. Fla. E. Coast Ry. Co.

, 163 So. 2d

15, 17 (Fla. 3d DCA 1964). However, where the trial court’s pre-trial order

expressly limits each party to one expert per specialty area, as here, the trial court

abuses its discretion by allowing one party to disobey that order by presenting

multiple experts on a hotly contested issue because it works substantial prejudice

to the opposing party. Again, the whole point of such rules is to facilitate a fair

“battle of the experts.” The trial court should not limit one party’s presentation of

expert witnesses while allowing the other party to present overwhelming and

cumulative evidence through multiple expert witnesses. Because the expert

testimony in medical malpractice cases is so important, a trial court’s

mismanagement of expert testimony can be dispositive.

Policing the one expert rule would be relatively simple if every testifying

medical professional was an expert medical witness, but that is simply not the case.

Medical professionals testifying solely as treating physicians, although they are

licensed medical doctors and could potentially be expert witnesses if they are15

properly qualified and designated as such, are beyond the ambit of the one expert

rule because they are more akin to fact witnesses with relevant evidence to convey

not because they are medical experts, but because they observed the patient

through normal sensory processes like any other “run-of-the-mill eye, ear, or other

witness to the events

. . . of the pending litigation.” Frantz v. Golebiewski

, 407 So.

2d 283, 285 (Fla. 3d DCA 1981); see also Carpenter

, 587 So. 2d at 573. However,

whether a particular witness is a “treating physician” or an “expert witness” is not

always easily determined.

There are two discrete methods of analyzing whether a particular testifying

medical professional is an expert witness subject to the one expert rule or a mere

fact witness as a treating physician. The first method, the so-called “status-based”

approach, is to examine whether the expert was retained ‘“in anticipation of

litigation or for trial,’ as in the case of an expert retained by counsel.” Frantz

, 407

So. 2d at 285 (quoting Zuberbuhler v. Div of Admin., State Dep’t of Transp.

, 344

So. 2d 1304, 1306 (Fla. 2d DCA 1977), cert. denied

, 358 So. 2d 135 (Fla. 1978)).

Under this approach, the court looks to the reason the medical professional was

retained to determine whether that professional is an expert or a fact witness. If the

physician was retained for purposes of litigation after the treatment was completed,

then the physician is an expert witness; but if the physician was retained to render

treatment or care directly to the patient, then the physician is a fact witness as a16

treating physician. Id. ; see also Drew v. Lee

, 250 P.3d 48, 54 (Utah 2011)

(discussing the different approaches for determining whether a physician is an

expert). This type of analysis focuses on the status of the physician.

Alternatively, the “substance-based” approach looks to the content of a

particular witness’s testimony to determine whether that witness is testifying as a

medical expert witness or a treating physician fact witness. Drew

, 250 P.3d at 53-

54. Under this approach, a witness that opines on expert-type subject matter will

be classified as an expert witness even if he or she rendered medical services to

treat the patient, which would typically make the witness a treating physician under

the status-based approach. A corollary to this classification is that only those

treating physicians who limit their testimony to the facts of the treatment are

properly labeled treating physician fact witnesses. See Fittipaldi USA, Inc. v.

Castroneves

, 905 So. 2d 182, 186 n.1 (Fla. 3d DCA 2005) (“It is entirely possible

that even a treating physician’s testimony could cross the line into expert

testimony.”). For example, under this approach, a physician who rendered care to

a patient could clearly testify as to the dates of treatment, the symptoms with which

the patient presented, and the course of treatment administered without being

labeled an expert witness. But if that same physician testifies regarding the

standard of care in the industry when it comes to treating that ailment, that17

testimony is improper expert testimony unless that treating physician was also

listed and admitted as an expert.

Florida cases have recognized both the status-based and substance-based

approaches, and both approaches are useful. Medical professionals retained in

anticipation of litigation or after the patient’s treatment was complete will nearly

always be classified as expert witnesses subject to the one expert rule because they

have no facts about which they could testify. However, physicians that provide

treatment to a patient outside of the litigation context may still be considered

experts for purposes of the rule if they give expert opinion testimony. Tetrault v.

Fairchild

, 799 So. 2d 226, 227-28 (Fla. 5th DCA 2001) (reversing when a “fact

witness” radiologist gave his opinion at trial about MRIs he had not seen before);

Pete v. Youngblood

, 141 P.3d 629, 634 (Utah Ct. App. 2006) (“To the extent a

treating physician simply provides a factual description of his or her personal

observations during treatment, the testimony is not opinion evidence and no

identification of the treating physician as an expert is required.

. . . If, however, the

treating physician also offers an opinion as to the standard of care or whether that

standard has been breached, the testimony is no longer simply factual.”); see also

Fittipaldi

, 905 So. 2d at 185-86 (holding that an attorney testifying as a fact

witness had “crossed the line into expert testimony” by giving his opinion on the

legal quality of a contract); Ryder Truck Rental, Inc. v. Perez

, 715 So. 2d 289, 29118

(Fla. 3d DCA 1998) (Jorgenson, J., dissenting) (reasoning that a physician who

provided treatment had also provided expert testimony by opining whether a

patient had reached maximum medical improvement). A well-known parable

warns readers to be watchful for wolves in sheep’s clothing; trial courts should

likewise be wary of litigants attempting to elicit expert testimony disguised as fact

testimony from a treating physician.

Here, the plaintiffs elicited expert testimony from the two “treating”

pathologists (Drs. Pardo and Ruiz) and also called an expert pathologist in rebuttal

(Dr. Croker) in addition to their one designated expert pathologist (Dr. Cohen).

Allowing such an unfair balance of expert testimony violated both the letter and

spirit of the one expert rule because it permitted the plaintiffs to proffer four

different experts with the same medical specialty to vouch for their theory of the

case, while Dr. Vargas was prevented from calling any additional experts.

Dr. Pardo is the pathologist who initially examined Monica’s kidney biopsy

upon her admittance to MCH, while Dr. Ruiz is the pathologist who examined one

of Monica’s kidneys after they were both removed during her transplant surgery.

Drs. Pardo and Ruiz noted their findings in written reports but never saw or

communicated with Monica or otherwise communicate with Dr. Paredes.

Importantly, neither Dr. Pardo nor Dr. Ruiz identified the cause, specific type, or

duration of Monica’s kidney disease or recommended treatment. In fact, Dr. Pardo19

diagnosed Monica in his written report with “Diffuse Proliferative

Immunecomplex Glomerulonephritis,” which indicates a type of kidney injury that

could be consistent with either RPGN or C1q nephropathy. Similarly, Dr. Ruiz

noted severe scarring and damage to the glomeruli of the kidney but also stated

that he could not determine the precise cause of the injury.

When called by the plaintiffs at trial, both Drs. Pardo and Ruiz explained

how they had examined the tissue samples and what their findings were. There

was no error in this portion of the testimony. However, both Drs. Pardo and Ruiz

also testified that they believed in their medical opinion that Monica’s kidney

damage was chronic, had been present for several years, and likely indicated she

had the slow-moving C1q nephropathy, not the rapidly-progressing RPGN.

Neither doctor had made these findings upon their initial examination of the tissue

samples, nor had either doctor ever made a finding that Monica’s injuries were

caused by C1q nephropathy during Monica’s treatment at MCH. In fact, the first

time the doctors had rendered these opinions was during their testimony at trial.

Such testimony crossed the boundary from that of a treating physician to that

of an expert witness. In fact, the testimony elicited from Drs. Pardo and Ruiz

closely mirrors that of the plaintiffs’ actual designated expert, Dr. Cohen, and Dr.

Cohen relied on the same slides and tissue samples that Drs. Pardo and Ruiz relied

on to reach their conclusions. Moreover, Drs. Pardo and Ruiz did not actually20

“treat” Monica, diagnose the cause of her kidney disease, or recommend a course

of treatment. Dr. Ruiz examined Monica’s kidney only after Dr. Paredes had

already determined that Monica’s kidneys could not be saved and after Monica’s

kidneys were removed. Thus, Dr. Ruiz did not play any role in Monica’s diagnosis

and treatment, and crucially, neither Dr. Pardo’s nor Dr. Ruiz’s report contain a

concrete diagnosis or a recommended treatment. The doctors did not simply testify

about the facts of their previous tissue examinations or the findings in their reports,

they gave opinion testimony regarding the nature of the disease and the timing of

the disease’s progression that went beyond their treatment and reports. Such

testimony can only be classified as cumulative expert opinion testimony, and the

trial court erred by allowing these opinions.

Apparently unsatisfied that they were able to bolster their expert

pathologist’s testimony by proffering expert testimony on the timing of the disease

from these two pathologists, the plaintiffs also called an additional expert

pathologist, Dr. Croker, to testify as a rebuttal expert witness. Dr. Cohen, the

plaintiffs’ primary expert pathologist, testified on direct examination regarding the

slides he had examined and the reasons he believed the disease was the slowermoving C1q nephropathy as opposed to the rapidly progressing RPGN. After the

plaintiffs rested, Dr. Vargas called several witnesses, including his expert

pathologist, Dr. Craver. Dr. Craver examined the same slides that Dr. Cohen had21

examined and reached the exact opposite conclusion: that Monica’s disease was

RPGN that had manifested itself over a period of only four to six months. In

rebuttal, rather than recalling Dr. Cohen to address portions of Dr. Craver’s

testimony he had not addressed, the plaintiffs called a fourth expert pathologist

witness, Dr. Croker, to testify about three of the slides Dr. Craver had examined.

This rebuttal testimony was largely unnecessary, totally cumulative, and

served only to bolster the testimony of the plaintiffs’ three prior expert

pathologists, as Dr. Cohen had already given his opinion about the nature and

timing of the disease. Moreover, Judge Platzer had previously ruled that the

plaintiffs would not be allowed to call a separate rebuttal witness in accordance

with the one expert rule. Nonetheless, the plaintiffs called Dr. Croker to further

add to their already-substantial advantage in expert testimony. Simply put, the

plaintiffs attempted to leave no doubt that the jury would rule in their favor by

disregarding the one expert rule and reinforcing their experts’ opinions until no

other result seemed reasonable.

Unfair cumulative expert testimony is prejudicial in most cases and will

rarely be considered harmless error, Tetrault

, 799 So. 2d at 228, and we believe

this to be particularly true when the opposing party is strictly limited to one expert.

The unfair use of expert testimony in this case requires a new trial. Dr. Vargas22

may or may not ultimately be responsible for Monica’s injuries, but he is certainly

entitled to the fair trial of which he was deprived.

B. The plaintiffs’ improper closing arguments unfairly prejudiced

Dr. Vargas.

The plaintiffs exacerbated these errors by misstating the presented evidence

during their closing arguments and bolstering the expert opinion testimony

provided by Drs. Pardo and Ruiz. The improper closing arguments in this case

were particularly prejudicial, and, when combined with the cumulative expert

testimony, they warrant a new trial.

As stated by the Florida Supreme Court:

The purpose of closing argument is to help the jury understand

the issues in a case by applying the evidence to the law applicable to

the case. Attorneys should be afforded great latitude in presenting

closing argument, but they must confine their argument to the

facts and evidence presented to the jury and all logical deductions

from the facts and evidence. Moreover, closing argument must not be

used to inflame the minds and passions of the jurors so that their

verdict reflects an emotional response rather than the logical analysis

of the evidence in light of the applicable law.

Murphy v. Int’l Robotic Sys., Inc.

, 766 So. 2d 1010, 1028 (Fla. 2000) (citations,

quotation marks, and alterations omitted). These requirements ensure that a jury

relies only on the facts presented in evidence and not on the expert rhetoric of a

seasoned trial attorney.

In this case, perhaps recognizing the weakness of their evidence as to

causation, the plaintiffs’ counsel misrepresented to the jury that Dr. Kaplan had23

testified that Monica could have been completely cured using only steroids and

ACE inhibitors 3 had she been diagnosed with C1q nephropathy when the first

positive protein tests came back. However, Dr. Kaplan did not offer any such

testimony. In fact, he did not state that Monica could have been cured at all, much

less explain how she could have been cured. This argument by plaintiffs’ counsel

materially altered the facts in evidence and materially prejudiced the jury. Rather

than correcting the error, the trial court failed to sustain Dr. Vargas’s timely

objection and instead merely told the jurors to rely on their own recollection of the

evidence presented at trial, which had lasted several weeks.

The plaintiffs’ counsel also specifically asked the jury to rely on the

testimony of Drs. Pardo and Ruiz, from whom the plaintiffs had elicited improper

expert testimony, because they were not experts and had “no axe to grind.” Thus,

the plaintiffs were permitted to capitalize on the improperly admitted expert

testimony by arguing that it was unbiased testimony of treating physicians, and as

such, more reliable than the testimony of Dr. Vargas’s competing expert.

These arguments mischaracterized the evidence, were highly improper, and

materially prejudiced Dr. Vargas.

CONCLUSION

3 These are generally considered relatively minor and minimally invasive

treatments in the medical community.24

The plaintiffs in this case resorted to unfair tactics to secure a jury verdict in

their favor. They violated the one expert per specialty rule by offering, over Dr.

Vargas’s objection, the testimony of four pathologists regarding the type of disease

that had caused Monica’s injuries. Then, in closing argument, they misrepresented

the evidence by telling the jurors that they had heard conclusive evidence of

causation when no such evidence had been presented. The combination of these

errors gave the jury the impression that several doctors believed the disease that

caused Monica’s renal failure was C1q nephropathy and that C1q nephropathy

could have been easily treated. These errors clearly deprived Dr. Vargas of a fair

trial. Accordingly, we conclude that the trial court erred by denying Dr. Vargas’s

motion for a new trial.

Reversed and remanded.