No. The judge did not break the rule, because there's a big difference between a 'treating doctor' and a 'hired expert.' Treating doctors, even lab specialists who never meet the patient, are considered fact witnesses who tell the jury what they actually saw and did to help the patient. Hired experts are brought in later just to give an opinion for the lawsuit. The court said the two lab doctors were treating doctors, so they didn't count against the 'one expert' limit. It was also okay to let a second expert testify at the end to respond to new things the defense expert said.

This judge didn't decide the main question. Instead, he said the Supreme Court shouldn't have even taken this case. He argued that the legal reason the family used to get the court's attention wasn't a good enough match. It was a technical argument that the court didn't have the proper authority, or 'jurisdiction,' to get involved.

This judge agreed with the other dissenting judge. He also argued that the court was overstepping its authority because the legal issues in this case and the case used for comparison were too different to create the 'conflict' needed for the Supreme Court to step in.

Yes, it was okay for the judge to let all those doctors talk. The two doctors who looked at Monica's kidney samples were just telling what they saw when they were trying to help Monica, not giving expert opinions. The doctor hired for the trial was the main expert, which was allowed. The last doctor was okay to bring in because he talked about new things the other side's expert mentioned. The judge didn't do anything wrong by letting them all talk. Also, what Monica's lawyers said at the end of the trial wasn't bad enough to need a whole new trial.

We shouldn't even be looking at this case because it's not really the same as other cases we've decided before. The lower court was talking about whether doctors were experts or just telling what they saw when treating Monica. Other cases were about different things, so we can't compare them.

We shouldn't be looking at this case because it's not really arguing about the same thing as other cases we've seen. This case is about telling the difference between doctors who are just saying what they did to help the patient and doctors who are giving expert opinions. Other cases were about different kinds of doctors talking, so we can't compare them.

No. A trial court does not abuse its discretion, because treating physicians testify as fact witnesses about their own medical performance and diagnoses formed during the course of treatment, distinguishing them from retained experts hired for litigation. The court reasoned that a treating physician's testimony concerns past facts based on personal knowledge acquired while attempting to make the patient well, not with the benefit of hindsight for litigation. Pathologists who analyze a patient's tissue to form a diagnosis as part of the patient's care team are considered treating physicians, even without direct patient contact. Furthermore, allowing a second expert on rebuttal was not an abuse of discretion when the primary expert was unavailable and the rebuttal testimony was non-cumulative, non-prejudicial, and served to contradict new evidence presented by the defense expert.

This opinion does not address the merits of the issue, instead arguing that the Supreme Court of Florida lacks jurisdiction to hear the case. The dissent contends there is no 'express and direct conflict' on the same question of law between the Third District's decision in this case and the Fourth District's decision in *Cantore*. It argues that *Vargas* centered on the distinction between treating physicians and expert witnesses under a 'one expert' rule, while *Cantore* addressed a different legal question concerning testimony from 'subsequent treating physicians' under the *Saunders* precedent. Because the legal issues are distinct, the jurisdictional prerequisite for review is not met.

This opinion also dissents on jurisdictional grounds, asserting that the Court does not have constitutional authority to review the case. The dissent argues that the legal question in *Vargas* (distinguishing treating physicians from expert witnesses) is fundamentally different from the legal question in *Cantore* (distinguishing 'subsequent treating physicians' from 'co-treating physicians'). Since the decisions do not decide the same question of law, there is no conflict that would grant the Florida Supreme Court jurisdiction.

Yes, the trial court did not abuse its discretion because the pathologists testified in different capacities—some as treating physicians and others as rebuttal experts. This distinction allowed for their testimony without violating the pretrial order. The majority holds that Dr. Pardo and Dr. Ruiz were treating physicians testifying as fact witnesses, not expert witnesses, because they participated in Monica's treatment by investigating the pathology of her condition and diagnosing the disease. Their testimony was limited to their own pathology studies and observations made during treatment. Dr. Cohen was properly allowed as the retained expert witness. Dr. Croker's testimony as a rebuttal expert was permissible because it was not cumulative to Dr. Cohen's testimony and addressed evidence not discussed by Dr. Cohen. The court also finds that any prejudice from counsel's comments during closing arguments was insufficient to warrant a new trial.

No, because the decision of the Third District does not conflict with precedent on the same question of law, thus the Supreme Court lacks jurisdiction. Justice Canady argues that the Third District's decision in Vargas and the Fourth District's decision in Cantore do not expressly and directly conflict on the same question of law. Vargas addressed whether certain witnesses were expert witnesses or treating physician fact witnesses, while Cantore addressed a specific limitation on the admissibility of 'subsequent treating physician' testimony in medical malpractice actions. The issues in the two cases are distinct, and therefore the Court lacks jurisdiction to review Vargas.

No, because the Third District's decision does not conflict with other decisions regarding the role of treating versus expert testimony, thus this Court should not have taken jurisdiction. Justice Polston argues that Vargas analyzed the difference between treating physician testimony and expert physician testimony, whereas Cantore analyzed the difference between subsequent treating physician testimony and co-treating physician testimony. These are two different legal issues, and therefore the decisions do not conflict, leaving the Court without jurisdiction to review the case.

Monica A. Gutierrez, etc. v. Jose Luis Vargas, M.D., etc.

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Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

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