Representing the Last Defendant Standing: Using the Plaintiff’s Experts Against Them
Written by Joseph Justice, Esq. and Laurette Balinsky, Esq.
Lawyers who represent defendants in multi-defendant cases are familiar with this scenario: plaintiff’s counsel names several defendants, offers expert testimony against each defendant and then settles with one or more of the defendants while withdrawing the expert against the settling defendant. Under Florida case law, a defendant can call the plaintiff’s expert at trial to establish a Fabre defense against the settling defendant.1 However, can the defendant inform the jury that the plaintiff was the party who originally retained the expert? The answer is yes, if certain conditions are met.
There is an obvious appeal for a defendant to call a plaintiff’s withdrawn expert to testify at trial where that expert’s opinion is helpful to the defense. What evidence could be more persuasive in proving the defendant’s case than presenting testimony of Plaintiff’s own expert that the defense’s position is the right position? This is particularly true in cases where a plaintiff has sued multiple defendants on differing theories of liability and then settled with one or more of those defendants. The testimony of experts retained by the plaintiff to prove the liability of a settling defendant could help remaining defendants prove that some or all of the fault for the plaintiff’s alleged injuries should be apportioned to the defendant that has settled. Fortunately, Florida Courts permit a defendant to use a plaintiff’s experts, at least under certain circumstances.
There are a number of cases in Florida that discuss whether a party should be permitted to call as a witness an expert originally retained by the opposing party once the opposing party has either withdrawn the expert or made it clear that the opposing party will not call the expert at trial. Florida Courts first addressed this issue in the area of imminent domain.2 More specifically, in Sun Charm Ranch, Inc. v. City of Orlando, the Fifth District discussed the use of an opposing party’s expert in imminent domain cases that deal with appraising the value of property to be acquired by a governmental entity. The Fourth District later discussed the issue in the tort law setting in a case styled Cento v. Broward County.
These cases all come to the conclusion that a party can call as a witness an expert who was originally retained by an opposing party once the opposing party withdraws that expert. However, as discussed in more detail below, there is a debate in the case law as to whether the party calling that expert can inform the jury that it was the opposing party that originally retained the expert. In Sun Charm, the Fifth District did not permit the party calling the expert to inform the jury that the opposing party hired the expert. However, distinguishing the facts presented to it in Cento, the Third District permitted the party calling the expert to also present evidence that the expert was retained by the opposing party. In dicta contained in a more recent case styled as Bogosian v. State Farm Mutual Automobile Insurance Company, the Third District staked out a middle ground, suggesting that the party calling the expert can inform the jury that the opposing party initially retained the expert, but only under limited circumstances.
This article will discuss these three cases in more detail as well as practice points for making use of them.
Sun Charm Ranch, Inc. v. City of Orlando
Sun Charm is a Fifth District eminent domain case in which the landowner sought to offer the testimony of an appraiser hired by the City of Orlando to appraise the landowner’s property.3 The City had retained the expert as a consultant who was not expected to testify at trial.4 The Court allowed the landowner to call the City of Orlando’s expert appraiser, but did not permit the landowner to inform the jury that the City was the party that originally hired the expert.5 The Court raised concerns about the burden placed on the party who originally retained the expert, noting that the “relevancy of this evidence is the inference that the party who fails to call an expert is covering up harmful evidence or concealing bad facts.”6 However, in the Court’s opinion, “there are many other reasons why an expert consulted prior to trial may not be called.”7 The Court reasoned that presentation of evidence regarding who retained the expert placed an unfair burden on the party who originally retained the expert to explain the expert’s absence in that party’s case-in-chief.8
The Court also highlighted the significant impact that the identity of the party retaining the expert has on the jury.9 The Court noted that, in condemnation cases, “jury verdicts in cases where this testimony was allowed often come in very close to the ‘rejected’ expert’s appraisal, demonstrating that juries tend to give too much weight to that witness’ testimony.”10 Therefore, the Court found that this testimony was not routine background information of the witness, but rather, evidence that should be excluded.11
Cento v. Broward County
The Fourth District reached a different conclusion in Cento.12 In Cento, Broward County was a defendant in an auto accident case.13 The County retained a medical expert who testified that the plaintiff suffered a permanent injury.14 When the County withdrew the expert, the trial court permitted Cento to call the expert and to inform the jury that the County was the party that originally retained the expert.15
In reviewing the trial court’s decision, the Fourth District focused on the fact that the County had listed the expert as a trial expert.16 In the Fourth District’s opinion, this distinguished Cento from Sun Charm.17 Because the County had listed the expert as a trial witness, the Fourth District permitted Cento to inform the jury that the County had originally retained the expert.18 The fact that the County dropped the expert by filing a subsequent expert disclosure that omitted the expert’s name and information did not change this outcome.19
Bogosian v. State Farm Mutual Automobile Insurance Company
In Bogosian, the Third District signaled that it preferred a middle ground approach.20 The case involved an accident on a fly over bridge involving the plaintiff and a so-called “phantom vehicle” – a vehicle driven by a driver who did not stop and was never identified.21 The plaintiff originally sued the Florida Department of Transportation (FDOT) on a theory of negligent design of the roadway.22 The plaintiff also sued State Farm, plaintiff’s uninsured motorist carrier, for the alleged negligence of the driver of the phantom vehicle.23
After FDOT moved for summary judgment, the plaintiff filed an affidavit of an expert who opined that the FDOT was negligent and at fault for the accident.24 Subsequently, the plaintiff settled with FDOT.25 State Farm then sought to name FDOT as a Fabre defendant, but it waited until the day of trial to reveal this intention to the plaintiff.26
State Farm also informed the plaintiff on the day before trial that it sent a trial subpoena to the expert retained by plaintiff who provided the affidavit to defeat FDOT’s motion for summary judgment.27 State Farm had not named the expert as a trial witness on its disclosure.28 Additionally, the plaintiff removed the expert from its most recent expert disclosure.29 As a result, at the time of the trial, the expert was not listed by either party as a witness who was likely to testify. Nonetheless, the trial court permitted the trial to go forward and to allow State Farm to apportion fault to FDOT, to call the plaintiff’s expert and to inform the jury that the plaintiff had originally retained the expert.30
The issue actually decided by the Third District on appeal related to the timing of State Farm’s decision to name FDOT as a Fabre defendant and the lack of notice this provided to the plaintiff before trial.31 The Court held that State Farm should not have been allowed to present the Fabre defense because it did not give notice to the plaintiff before trial that it intended to raise this defense.32 The Court further held that the trial court should not have allowed State Farm to call the plaintiff’s expert as a witness because the expert was not listed on either party’s list of witnesses who were likely to testify at trial.33 For these reasons, the Third District remanded to case for a new trial.34
Since the issue of whether State Farm could call the plaintiff’s former expert at trial was likely to arise again on remand, the Third District provided some instruction to the trial court on how to handle that issue.35 In dicta, the Third District implied that, if the plaintiff were to take the position that the FDOT was not negligent, State Farm should be permitted to present the expert retained by plaintiff who opined that FDOT was negligent and to inform the jury that it was plaintiff who originally retained that expert.36
In giving this instruction, the Bogosian Court specifically disagreed with the Cento Court’s reasoning.37 Rather than stating that State Farm should be permitted to inform the jury that the expert was originally retained by the plaintiff because the plaintiff had listed the expert as a witness to be called at trial, the Bogosian Court suggested that State Farm could do so only if plaintiff took the position at trial that FDOT was not negligent, contrary to plaintiff’s original position.38 Additionally, the Third District further stated that State Farm could not call the expert unless State Farm specifically named the expert as a trial witness and named FDOT as a specific Fabre defendant.39
The opinion in Sun Charm supports the Bogosian Court’s suggested approach. In Sun Charm, the Fifth District stated that, “(s)o long as it is legitimate and honest, each party should be free to seek out and produce at trial the expert testimony most favorable to his case.”40 It would be dishonest for a plaintiff to present expert testimony to obtain a favorable settlement against one defendant, and then disavow any allegation of negligence against that defendant in an effort to reduce or eliminate any apportionment of fault. Therefore, in this scenario, Sun Charm would also allow the defendant to introduce the opinions of the plaintiff’s expert against the settling defendant and inform the jury that the expert was originally retained by the plaintiff.
Pushing the Issue – Practice Points
Based upon this case law, there are a few things defense lawyers can do to preserve the opportunity to use a plaintiff’s expert against them on a Fabre defense. Defense counsel should argue that Cento, not Sun Charm, controls where the plaintiff has named the expert as a trial witness. The language in Cento that permits a defendant to present evidence that an expert was retained by the plaintiff is the actual holding of the opinion. While Bogosian disagrees with the outcome, that disagreement is dicta, rather than binding precedent. Therefore, the best argument is that Cento controls and permits the defendant to inform the jury that the expert was retained by the plaintiff.
That said, defense counsel should recognize that the Fourth District has signaled in Bogosian that it disagrees with Cento. For that reason, Defense counsel should seek to follow the instructions given by the Fourth District in the dicta of Bogosian to support the argument as well. To use Bogosian as a basis for advising the jury that the plaintiff retained the expert, defense counsel should:
- List Co-Defendants as Fabre Defendants: At the outset of the case, the Defendant should plead all potential Fabre Defendants, including all Defendants named in the litigation. While this has become a common practice, it is worth emphasizing this point. Seeking leave to amend defenses to add the settling defendant as a Fabre defendant as trial is about to begin is an unnecessary risk given the language of Bogosian.
- Disclose the plaintiff’s experts: Defense counsel should specifically name the plaintiff’s experts on the Defendant’s expert witness disclosure. This was a key concern raised by Bogosian. A trial court is more likely to exclude an expert originally listed by the plaintiff if the defense has not also listed the expert by name. Catchalls incorporating other parties’ experts may not be sufficient, particularly where the plaintiff has filed an amended disclosure deleting a previously disclosed expert, as in Bogosian. Also, the trial judge may require specificity as a matter of providing adequate notice to the plaintiff.
- Videotape the depositions of plaintiff’s experts: When the plaintiff’s experts are deposed, defense counsel should consider videotaping the deposition for use at trial. Videos are more engaging than reading a transcript and will include all of the background questions establishing that plaintiff retained the expert. Additionally, when played back, the jurors may notice voices on the video they have not yet heard in the trial – voices of the lawyers no longer in the case. Throughout trial, the jurors will become familiar with each attorney’s voice and on the video they will hear the voices of the lawyers whose clients have settled out of the case. Some less astute lawyers may not edit out portions of the video which include the voice of the settling-defendant’s attorney.
- Consider moving for partial summary judgment: Depending on the facts of the case, defense counsel should consider moving for partial summary judgment on the Fabre issue. Some defense attorneys may be uneasy about moving for a summary judgment on this issue; however, this may lay the grounds for the argument that the plaintiff is taking a contrary position as required by Bogosian. This approach may back the plaintiff into a corner by forcing the plaintiff to either concede the liability of the Fabre defendant or allow the defendant to inform the jury that the expert against the Fabre defendant was originally retained by the plaintiff. This option may not be appropriate where the remaining defendant and the settling defendant have a similar causation defense. (For example, if in Bogosian there was evidence that the plaintiff’s complaints related to a preexisting condition, rather than an injury caused by the accident, State Farm would obviously not seek a summary judgment apportioning fault to FDOT since such a finding would only serve to prove that the accident was a cause of the plaintiff’s injuries.)
- Request a jury instruction: If the motion for partial summary judgment on the Fabre issue is granted, then defense counsel should ask for a special jury instruction requiring that the jury be advised that the Fabre defendant was negligent as a matter of law, and requiring the jury to determine the percentage of fault to be apportioned to the settling/Fabre defendant.
Cento presents defendants with a potentially powerful tool in persuading juries to apportion fault to defendants that have settled out of a case. Where it applies, Cento also serves as a means to ensure some consistency in the plaintiff’s theory of fault in multi-defendant cases. For this reason, the defense bar should cite to Cento on this issue and push for its use throughout Florida.
Defendants should also follow the instructions given by Bogosian. By doing so, defendants put themselves in the best position to use a plaintiff’s expert against the plaintiff on the Fabre issue and may force the plaintiff to concede that some amount of fault should be apportioned to the settling defendant.
1 See Sun Charm Ranch, Inc. v. City of Orlando, 407 So. 2d 938, 939 – 940 (Fla. 5th DCA 1981).
2 See Id. at 939. See also Jacksonville Transportation Authority v. ASC Associates, 559 So. 2d 330, 332 – 333 (Fla. 1st DCA 1990).
3 See Id.
4 See Id. at 939.
5 See Id. at 939 – 941.
6 Id. at 940 (Fla. 5th DCA 1981).
8 See Id. at 940 – 941.
9 See Id. at 940 – 941.
10 Id. at 941.
11 See Id. at 940 – 941.
12 See Broward County v. Cento, 611 So. 2d 1339 (Fla. 4th DCA 1993)
13 See Id. at 1339.
14 See Id. at 1339.
15 See Id. at 1339 – 1340.
16 See Id. at 1340.
17 See Id.
18 See Id. at 1339 – 1340.
19 See Id.
20 See Bogosian v. State Farm Mutual Automobile Insurance Company, 817 So. 2d 968, (Fla. 3d DCA 2002).
21 See Id. at 969 – 970.
22 See Id.
23 See Id.
24 See Id.
25 See Id.
26 See Id. at 969.
27 See Id. at 970.
28 See Id. at 971.
29 See Id.
30 See Id. at 970 – 971.
31 See Id. at 969 – 971.
32 See Id.
33 See Id.
34 See Id.
35 See Id. at 971 – 973.
36 See Id. at 973.
37 See Id. at 972 – 973.
38 See Id.
39 See Id. at 970 – 971.
40 Sun Charm Ranch, Inc. v. City of Orlando, 407 So. 2d 938, 940 (Fla. 5th DCA 1981)