Friday Florida Law Update- Re-weighing Expert Testimony on Appeal

TGIF all, and welcome back for your Florida law update!

Yesterday’s winner for most interesting/absurd search engine term that led someone to this blog is “Lil Jon Flop.”

Today we discuss an opinion from the Florida Supreme Court which should adjust the layperson’s view of what occurs during an appeal.  In Cox v. St. Joseph’s Hospital, 2011 WL 2637421 (Fla. July 7, 2011), the Florida Supreme Court quashed a decision from the Second District Court of Appeal and reinstated a jury verdict in Plaintiff’s favor in a medical malpractice action.

In the underlying case, a 69-year old gentleman suffered an ischemic stroke due to a blood clot.  Though the paramedics were able to ascertain the time of the stroke, emergency room staff failed to obtain this information from the paramedics.  Without knowledge of the time of the stroke, emergency room physicians were unable to treat Plaintiff with “tissue plasminogen activator” (tPA), a drug that dissolves blood clots, but which MUST be administered within 6 hours of the stroke.  Plaintiff alleges that due to Defendants’ failure to administer tPA, he suffered permanent paralysis and aphasia from the stroke. 

At trial, Plaintiff’s causation expert testified that based on Plaintiff’s medical history, her experience and her review of the pertinent medical literature, administration of tPA would have more likely than not permitted him a full recovery.  Defendants cross-examined Plaintiff by pointing out a scientific study that purportedly showed tPA to have a less than 50% success rate.

After the jury found for Plaintiff, Defendants appealed, claiming that Plaintiff’s expert did not adequately rebut the information in the scientific study, reducing her opinion to speculation.  The Second DCA agreed, reversing the trial court judgment with instructions for the trial court to direct a verdict for the defense.  

The Florida Supreme Court held that the Second DCA opinion amounted to an improper “re-weighing of the evidence” by an appellate court, which incorrectly took the matter from the jury.  The Court held that Plaintiff’s expert gave sufficient testimony in response to questions about the study to present a question to the jury of whether the administration of tPA would have more likely than not prevented Plaintiff’s permanent injuries.

The lesson from this case is that an appeal is far from a second bite at the apple.  An appeal is strictly a review of whether one or more issues of law were misapplied at the trial level.  It’s always an uphill climb for the appellant.


Have a great weekend everyone!




 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.


Explore posts in the same categories: Florida Law Updates

3 Comments on “Friday Florida Law Update- Re-weighing Expert Testimony on Appeal”

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