Florida/Georgia Personal Injury & Workers Compensation

...literature in their opinions when determining the reliability of the particular scientific technique at issue, see Stokes v. State, 548 So.2d 188 (Fla. 1989), the party seeking admission of the scientific technique at the trial stage is precluded by Section 90.706, Florida Statutes, from offering statements from learned treatises as substantive evidence, although such writings may be used during cross-examination of the expert if the expert recognizes the material as authoritative....

...Because we must decide as a matter of law whether the rules of evidence allow an expert to testify on direct examination that he or she consulted with other experts, we apply a de novo standard of review. Expert testimony is governed by sections 90.702-90.706, Florida Statutes (2005)....

...Second, an expert cannot bolster his or her testimony by testifying that a particular treatise supports an opinion. See Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003), and the cases cited therein. But literature that the expert or trial court recognizes as authoritative can be used in cross-examination. See § 90.706, Fla....

...many other experts were consulted? As the Fourth District recognized in Schwarz, the expert's testimony regarding the consultations serves only to bolster his or her opinion on the issue to which the expert is testifying. See 695 So.2d at 455. Under section 90.706, which allows the use of authoritative literature only on cross-examination, it is inappropriate to allow experts on direct examination to bolster their credibility or to supplement their opinions by "testifying that a treatise agrees with their opinion." Schwarz, 695 So.2d at 455; see also Theus v....

...The Fourth District in Schwarz specifically stated: "The precise issue before us is not whether Dr. Burton could testify that other experts in his field agreed with him, but rather whether he could testify that he had consulted other experts in his same field." Schwarz, 695 So.2d at 455. [2] Section 90.706 provides: Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an exper...

...nizing general acceptance by the relevant scientific community of the battered woman syndrome, I am aware that Florida's Evidence Code does not permit judicial notice of scientific literature as a means of substantive proof of an expert opinion, see section 90.706 [7] (restricting the use of such literature to the cross-examination of an expert witness); nevertheless, *781 Florida does permit judicial notice of opinions from other jurisdictions....

...In a state such as Florida that prohibits judicial notice of such evidence directly, as part of a proponent's proof, the opponent of an expert's opinion would be allowed on cross-examination to impeach the opinion by reference to statements going to the general acceptance standard in scientific writings. See Section 90.706, Fla....

...e alone could not have. The sole purpose of the medical book was to supplement the opinion of the doctor which had already been formed and testified to. Therefore, the book was not used for the purposes of "cross-examination" as that term is used in § 90.706....

...NOTES [1] The Fund had cross-examined some of plaintiff's witnesses, had conducted separate voir dire examination during jury selection, and generally participated separately in the trial. Appellee has not contested the Fund's right to actively participate in the trial. [2] § 90.704, Fla. Stat. (1979). [3] § 90.706, Fla....

...Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981). Nor are statements in a treatise admissible during the direct examination of an expert, Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993), although they can be used on cross-examination of an expert. § 90.706, Fla....

...Since the case must be retried we address another incorrect evidentiary ruling which alone, on the facts of this case, would not have been grounds for reversal. *978 Medical treatises cannot be used to bolster the testimony of a physician on direct examination. § 90.706, Fla....

...Beall, 133 So.2d 477 (Fla. 3d DCA 1961). Second, medical treatises cannot be used to bolster the testimony of a physician on direct examination. See Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981); see also § 90.706, Fla....

...garding an expert opinion given by a geologist in a negligence action). We further agree with the trial court's conclusion that it erred in permitting defense counsel to bolster Dr. Urbach's testimony by referring to a medical journal article. Under section 90.706, authoritative publications can only be used during the cross examination of an expert and cannot be used to bolster the credibility of an expert or to supplement an opinion of the expert which has already been formed....

...Kaufman was questioned as to whether the ACOG bulletins represent the proper standard of care; he replied that "the ... ACOG said, hey, it's safe to do this." Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion. See § 90.706, Fla....

...Drucker, 546 So.2d 1118 (Fla. 4th DCA 1989); Quarrel v. Minervini, 510 So.2d 977 (Fla. 3d DCA 1987); Tallahassee Mem'l Reg'l Med. Ctr. v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981); see also Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993) (stating that "[u]nder section 90.706, Florida Statutes (1991), authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed")....

...POLEN, C.J., and TAYLOR, J., concur. NOTES [1] Final Cost Judgments were entered on August 7, 2001, in favor of West Boca Medical Center in the amount of $31,932.30 and on August 14, 2001, in favor of Samuel Kaufman in the amount of $16,030.00. [2] Section 90.706 provides in part: Authoritativeness of literature for use in cross-examination.—Statements of facts or opinions on a subject of science, art or specialized knowledge contained in a published treatise, periodical, book, dissertation, p...

...tly ruled that Dr. Fravel could use the article for cross-examination only if the expert was familiar with it. The trial court has the discretion to find a writing authoritative despite an expert's failure to recognize the writing or the author. See § 90.706, Fla....

...During Sherman's case in chief the plaintiff was permitted to introduce the ACAS report into evidence through one of the plaintiff's experts. The defense objected on grounds that the admission of this report impermissibly bolstered the credibility of the plaintiff's expert opinions and was otherwise violative of section 90.706 of the Florida Evidence Code. See § 90.706, Fla....

...After the denial of post-trial motions, Dr. Donshik instituted this appeal. Dr. Donshik argues, and we agree, that the trial court abused its discretion when it permitted the introduction of the ACAS report as part of the plaintiff's case in chief in violation of section 90.706 of Florida's Evidence Code....

...ng to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter. Section 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence....

...5th DCA 1997) (holding that it was error to permit defense counsel to question medical expert during direct examination about a medical journal article and for expert to read portions of that article into evidence); Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993) ("Under section 90.706, ......

...direct examination."); Medina v. Variety Children's Hosp., 438 So.2d 138, 139 (Fla. 3d DCA 1983) (same). See also Tallahassee Mem'l Reg'l Med. Ctr. v. Mitchell, 407 So.2d 601, 602 (Fla. 1st DCA 1981) (holding that a publication cannot be used under section 90.706 to "supplement the opinion of the doctor which had already been formed and testified to.")....

...In our view, the trial court erred in permitting plaintiff's attorney to read textual material from a medical treatise to the plaintiff's expert witness, and in permitting the expert witness to bolster his own opinion testimony by using the medical treatise during his direct examination. It is clear that section 90.706, Florida Statutes (1987), permits introduction of a medical treatise only in cross examination of an expert witness....

...these cases actually support the position of this dissent, and *155 the majority opinion has been "hoist on its own petard." Significantly, no rule of evidence permits the admission of Internet information as evidence, absent a party's stipulation. Section 90.706, Florida Statutes (2007), the evidence rule that is most analogous to Internet information as evidence, prohibits the use of a learned treatise as substantive evidence. See Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993). This rule was applied in Green, a medical malpractice case, wherein the court opined by a statement applicable here as follows: Under section 90.706, Florida Statutes (1991), authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed. Chorzelewski v. Drucker, 546 So.2d 1118 (Fla. 4th DCA 1989); Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981). Section 90.706 does not allow statements in a learned treatise to be used as substantive evidence since the treatise is hearsay if it is offered as substantive evidence. Green, 630 So.2d at 609. (emphasis added). Because there is no evidence rule that specifically authorizes substantive use of Internet information, and section 90.706 prohibits the use of a learned treatise as substantive evidence, I am perplexed why the majority opinion advances what appears, at least by implication, to be a defense of the inadmissible use of Internet information as substantive evidence. In opposition to the clear precedential relevance of Green and section 90.706, the majority opinion relies upon a factually unrelated case, Weeks, 977 So.2d at 616....

...ial basis for the majority opinion, as the information alluded to from the Internet citation could not have been admitted without a stipulation of the parties, or else the phrase "undisputed facts" would not have appeared in the opinion. See Green ; § 90.706, Fla....

...n. At trial, the defendants attempted to use treatises and articles on the subject of asbestos exposure, including an article in the New England Journal of Medicine, to cross-examine the plaintiffs' pathology expert, Dr. Gerrit Schepers, pursuant to Section 90.706, Florida Statutes (1993)....

...with jury instructions and a verdict form that permits the jury to apportion liability among all alleged tortfeasors. W.R. Grace & Co. — Conn. v. Dougherty, 636 So.2d 746, 747-48 (Fla. 2d DCA 1994). Reversed and remanded for a new trial. NOTES [1] Section 90.706, Florida Statutes (1993), provides as follows: Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be...

...He testified that if there was a high risk, the drugs would have been withdrawn from the market by the FDA. During Tandem’s case-in-chief, Tandem argued for admission of the FDA advisory under the hearsay exception for public records and reports. See § 90.803(8), Fla. Stat. (2009). The Estate responded that section 90.706, Florida Statutes (2009) 3 , was dispositive and precluded use of the advisory as substantive evidence....

...When he was shown the FDA advisory, Tandem sought to have him read or summarize the contents to the jury. The trial court did not allow this to occur and did not allow Dr. Meyerson to use the advisory to support his opinion based on the Estate’s objections regarding improper bolstering under section 90.706....

...The relevant black box warning in this case was discussed at trial, but was excluded from evidence because the trial court ruled that it was cumulative. . Mrs. Gagnon had been taking these two medications for two years without any complications or side effects. . 90.706 Authoritativeness of literature for use in cross-examination.-Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing...

...It is settled by statute, case law, and treatises, that statements contained in medical literature cannot be used to cross-examine a witness unless the literature is established to be a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. § 90.706, Fla....

...Ochsner Clinic, 608 F.2d 1040 (5th Cir.1979); Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981); see also Medina v. Variety Children's Hosp., 438 So.2d 138 (Fla. 3d DCA 1983); M. Graham, Handbook of Fla. Evidence, § 90.706 (1987); Annotation: Use of Medical or Other Treatise In Cross-Examination of Expert Witness, 60 A.L.R.2d 77 (1958)....

...nity to fully respond to the claim that Levaquin samples should not have been provided to Decedent. 1 The trial court’s error was compounded by permitting the insert to be admitted into evidence (even assuming its authenticity). Although section 90.706, Florida Statutes (2014), permits statements of facts or opinion on a subject of specialized knowledge contained in a learned treatise, pamphlet, or other writing to be used in cross-examination of an expert witness, it does not permit those statements to be used as substantive evidence....

...3d at 584. (2) Improper Bolstering. We also find that Dr. Pianko improperly bolstered his opinion. Experts are prohibited from bolstering their opinions by reference to the opinions of non-testifying experts or opinions expressed in treatises authored by others. § 90.706, Fla....

...1st DCA 2012); Hargrove v. Howell, 884 So. 2d 960, 962 (Fla. 1st DCA 2004); see also Liberatore v. Kaufman, 835 So. 2d 404, 407 (Fla. 4th DCA 2003) (collecting cases prohibiting bolstering of expert opinions on direct examination). This result flows from section 90.706 of the Florida Evidence Code, which prohibits the use of authoritative literature except on cross- examination....

...The Bakers urge the survey should have been admitted on any one of three theories. First, they contend the survey is a self-authenticating document within the purview of Section 90.902, Florida Statutes. Second, they contend the survey constitutes material relied upon by an expert witness and so is admissible pursuant to Section 90.706, Florida Statutes....

...See, e.g., id. at 1036; Erwin v. Todd, 699 So.2d 275, 278 (Fla. 5th DCA 1997); Medina v. Variety Children's Hosp., 438 So.2d 138, 139 (Fla. 3d DCA 1983); Tallahassee Mem'l Reg'l Med. Ctr. v. Mitchell, 407 So.2d 601, 602 (Fla. 1st DCA 1981); see also § 90.706, Fla....

...Dep't of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006). "Experts cannot, on direct examination, bolster their testimony by testifying that a treatise agrees with their opinion." Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003). And "[s]ection 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence." Donshik v....

...th medical literature that the experts did not deem authoritative. In addition, the trial court expressly refused to find that the literature was authoritative. The appellees did not try to offer other evidence of the literature's authoritativeness. Section 90.706, Florida Statutes (1993), provides: Statements of facts or opinions on a subject of science ......

...Plunkett was exacerbated by inadmissible hearsay as to the opinions of NAME and Dr. Chase. He claims counsel was ineffective for failing to object. Caban is correct that an expert may not comment on the credibility of other witnesses and that this was improper impeachment. See e.g., § 90.706, Fla....

...Rather, under our evidence code “[statements of facts or opinions on a subject of ... specialized knowledge contained in a published treatise ... or other [authoritative] writing may [only] be used in cross-examination of an expert witness ....”§ 90.706, Fla. Stat. (2010). “Section 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence.” Donshik v....

...t regarding the minimum size of the vaginal opening necessary for the occurrence of adult intercourse is inconsistent with any testimony to the contrary by Dr. Montes, her opinions in that regard could be impeached by the use of such literature. See § 90.706, Fla....

...posing party of the opportunity to cross-examine the non-testifying experts.” Miller v. State, 127 So. 3d 580, 586 (Fla. 4th DCA 2012). Florida’s rule prohibiting the bolstering of expert opinions with authoritative publications derives from section 90.706, Florida Statutes (2015), which allows the use of a publication on cross-examination of an expert witness if the expert recognizes it as authoritative. State Dep’t of Corr. v. Junod, 217 So. 3d 200, 208 (Fla. 1st DCA 2017). Because section 90.706 only provides for the use of such treatises or publications on cross- examination, the statute “does not allow statements in a learned treatise to be used as substantive evidence since the treatise is hearsay if it is 15 offered as substantive evidence.” Green v....

..., and that a new trial was warranted “due to the highly prejudicial nature of the improperly admitted evidence.” The defendants’ appeal follows. During trial, prior to the defense experts testifying, the plaintiff moved in li-mine, pursuant to section 90.706, Florida Statutes (2002), to preclude the defense from bolstering their expert witnesses by asking them whether there was anything in the medical literature that supported their opinions....

...The expert addressed each source individually stating that there was an absence of any such writing in any of those authoritative sources that came to that conclusion. The defendants contend that the trial court erred by granting a new trial. We disagree. *144 Section 90.706, Florida Statutes (2002), titled, “Authoritativeness of literature for use in cross-examination,” provides: Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, p...

...authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter. “Under section 90.706, authoritative publications can only be used during the cross-examination of an expert and cannot be used to bolster the credibility of an expert or to supplement an opinion of the expert that has already been formed.” Erwin v....

PER CURIAM. Benjamin Whitfield appeals his conviction and sentence for manslaughter and aggravated child abuse, raising four issues. We affirm and write only to address an issue of first impression, regarding the trial court’s application of section 90.706, Florida Statutes (2001), to prevent the defense from cross-examining the state’s medical witnesses using an article published in a medical journal....

...John Plunkett entitled “Fatal Pediatric Head Injuries Caused by Short Distance Falls,” in the American Journal of Forensic Medicine and Pathology, which purportedly documents cases of children dying from subdural hematomas after short falls. The state objected, relying on section 90.706, Florida Statutes (2001), which provides: Authoritativeness of literature for use in cross-examination....

...As it had with Dr. Truman s testimony, the court excluded cross-examination of Dr. Stewart by means of the article. The trial court properly precluded the defense from using Dr. Plunkett’s article as a tool for cross-examination of medical experts. Section 90.706 permits the opposing party to cross-examine by the use of published material when the expert witness recognizes such particular writing to be authoritative....

...he author or the text independently). If the expert refuses to concede that the particular writing is authoritative, the party may prove to the court in some other way that the text is authoritative. Because Whitfield failed to meet his burden under section 90.706, his convictions are AFFIRMED....

...The expert, Dr. Katz, stated that he had not read that chapter, even though Dr. Katz himself had authored another chapter about a different subject matter in the same book. Dr. Katz testified that he did not recognize any entire book as being authoritative. Section 90.706, Florida Statutes (1987) provides: Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cros...

...In plaintiff's case, plaintiff read parts of the depositions of defendant's witnesses and attempted to introduce testimony concerning the standard of care as set forth in the American College of Obstetricians and Gynecologists (ACOG) bulletin. Under section 90.706, Florida Statutes (1991), authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed. Chorzelewski v. Drucker, 546 So.2d 1118 (Fla. 4th DCA 1989); Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981). Section 90.706 does not allow statements in a learned treatise to be used as substantive evidence since the treatise is hearsay if it is offered as substantive evidence....

...he trial court questioned the words “per se” in the affidavits of Appellants’ experts, noting that those words made the affidavits “a waffling opinion.” The court opined that “per se authoritative” is a higher standard than required by section 90.706 and that “the real question is whether they are generally acknowledged, accepted and utilized in the medical community.......

...During the hearing the trial judge stated that the “preponderance of the evidence” supported his finding that the ACOG materials were authoritative, although the order determining authoritativeness does not state what standard was used. THE LAW Section 90.706, Florida Statutes, provides: Authoritativeness of literature for use in cross-examination.-Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, diss...

...ng to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter. § 90.706, Fla....

...e for cross-examination purposes. Having recognized this standard, we inherently reject Appellants’ proposed standard of “clear and convincing” evidence. AFFIRMED. COBB and PETERSON, JJ., concur. . There is little Florida case law interpreting section 90.706 or providing guidance as to what standard must be met before a trial court may find a writing authoritative for cross-examination purposes where the cross-examined expert does not acknowledge that the text is authoritative....

...” Doctor Uscinski testified that the conclusions reached by-the above articles supported his opinion on shaken baby syndrome. We conclude that the circuit court erred in allowing Doctor Uscinski to testify regarding the contents of these articles. Section 90.706, Florida Statutes (2004), provides that statements of fact or opinion may be used to cross-examine an expert if the trial court or the expert recognizes it as authoritative: Statements of facts 'or opinions on a subject of science, art...

...hearsay. Id. Similar to the present case, in Donshik v. Sherman, 861 So.2d 53 (Fla. 3d DCA 2003), the plaintiffs expert was allowed to testify regarding findings from an Asymptomatic Carotid Atherosclerosis Study. The Third District held as follows: Section 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence.......

bolster the appellant’s own testimony under section 90.706, Florida Statutes. The hearing officer sustained

...e witness’ recognition, or the trial court’s finding, of authoritativeness. The e-cigarettes evidence was presented during the punitive damages phase of trial and relevant to appellants’ theory that they had attempted to make cigarettes safer. Section 90.706, Florida Statutes (2019) provides: Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing...

...ng to be authoritative and relevant to the subject matter. The expert witness did not recognize the study as authoritative, nor did the trial court make a finding of authoritativeness. Absent the requisite predicate of authoritativeness under section 90.706, it was error for the trial court to permit plaintiff’s counsel to recite to the jury, during cross-examination of the defendants’ expert witness, “[s]tatements of facts or opinions” contained within the study on the harmful effects of e-cigarettes....

evidence of the literature’s authoritativeness. Section 90.706, Florida Statutes (1993), provides: Statements

the order below and remand for a new trial. See § 90.706, Florida Statutes (2011); Linn v. Fossum, 946

...during cross-examination by using a medical treatise to support his testimony before the jury); Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993) (commenting that authoritative publications can be used during cross-examination of an expert under section 90.706, Florida Statutes, but may not be used to bolster the expert’s credibility or to supplement an opinion that has been formed, because statements in a learned treatise may not be used as substantive evidence)....