TREATING PHYSICIAN CROSSED THE LINE INTO UNDISCLOSED EXPERT LIFE CARE TESTIMONY; SURPRISE FUTURE MEDICAL COST OPINIONS REQUIRE NEW TRIAL ON FUTURE DAMAGES
Richardson v. Tenery, 50 Fla. L. Weekly D2282 (Fla. 6th DCA Oct. 21, 2025):
In this auto accident case, the jury awarded over $2.7 million in damages, including $1,000,000 for future medical expenses and $1,200,000 for future pain and suffering.
The appellate court focused on one issue the defendant raised: the admission of undisclosed expert opinions from the plaintiff’s treating physiatrist, as to her detailed future medical care and its cost.
The plaintiff had disclosed this doctor as a “treating physician” and “non-retained expert” expected to address diagnosis, causation, permanency, and the “costs” and “reasonableness” of past and future care, while resisting expert discovery by invoking Worley’s protection for treating physicians.
The records produced before trial mentioned that future care and “future cost options” had been discussed but did not include any life-care-type cost projections.
On the eve of trial, after learning he would testify, Dr. BiFulco prepared an Excel spreadsheet listing thirty-two categories of future care and a full dollar computation of lifetime costs. At trial, over defense objection and after a proffer, he then testified in detail about those future care categories and costs, using methodology he described as the same type of cost work he does as a physician life care planner. None of those numbers had been disclosed in discovery or contained in the medical records.
The trial court treated this doctor as a true “treater” and concluded there was no Binger violation because the disclosure mentioned “future cost” and the records referenced future care. The Sixth District disagreed.
Relying on the line of cases distinguishing treating-physician fact testimony from retained expert opinions, the court held that what matters is not the “label” but the substance of the testimony.
When a treating doctor, shielded as a “treater,” generates a litigation-driven, comprehensive future-medical cost analysis for trial, he or she is functioning as an expert, not merely relating opinions formed in the course of treatment. Those opinions must be properly disclosed and are then subject to expert discovery.
Allowing that testimony, including the late-created cost spreadsheet, amounted to classic surprise and trial by ambush. The defense had no fair chance to depose the witness on those opinions, probe financial bias, or retain a rebuttal expert. Given that the undisclosed opinions directly supported the seven-figure future medical award, the error was not harmless. The Sixth District reversed and remanded but limited the new trial to future damages only.