To be or not to be (an expert) that is the question

FLORIDA LAW WEEKLY

VOLUME 50 NUMBER 43

CASES FROM THE WEEK OF OCTOBER 31, 2025

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.

RIDE-SHARE DRIVER FOUND TO BE INDEPENDENT CONTRACTOR UNDER TNC STATUTE; SPARSE COMPLAINT AND CITATION HISTORY NOT ENOUGH FOR NEGLIGENT HIRING CLAIM AGAINST LYFT

Abner v. Lyft Florida, Inc., 50 Fla. L. Weekly D2301 (Fla. 3d DCA Oct. 22, 2025):

A Lyft driver collided with the plaintiff’s motorcycle. The plaintiff settled with the driver and pursued Lyft for vicarious liability and negligent hiring/retention, arguing that the driver was Lyft’s agent/employee and that Lyft should have removed him based on complaints and citations. Lyft moved for summary judgment relying on the Transportation Network Companies statute, section 627.748, Florida Statutes (2017), which had gone into effect just four days before the crash.

The Third District held that the applicable law is the statute in effect when the cause of action accrues, so the TNC statute applied because it was in force on the date of the accident, regardless of when Lyft first approved the driver.

Under section 627.748(9), a TNC driver is an independent contractor, not an employee, if four conditions are met. (a) The TNC does not unilaterally prescribe specific hours during which the TNC driver must be logged on to the TNC’s digital network; (b) The TNC does not prohibit the TNC driver from using digital networks from other TNC’s; (c) the TNC does not restrict the TNC driver from engaging in any other occupation or business; and (d) the TNC and TNC driver agree in writing that the TNC driver is an independent contractor with respect to the TNC.

The court focused on whether Lyft “restricted” the driver from engaging in other occupations by language in the Terms of Service saying he would not operate as a taxi or public carrier while providing Lyft services. Reading that provision together with a clause expressly giving him complete discretion to engage in other business, the court held the agreement only limited what he could do while actually on the Lyft platform, not as to his ability to hold other jobs.

Because the statutory conditions were satisfied, the driver was an independent contractor, and Lyft was not vicariously liable for his negligence.

As to the negligent hiring/retention count, the court emphasized the TNC statute’s specific background-check and disqualification rules. The driver had no disqualifying convictions, and his post-approval traffic history consisted of a single reckless-driving citation and another speeding citation, plus two scattered passenger complaints (one two-star review with no detail and one more specific “felt scared” complaint).

Under any reasonable view of a TNC’s duty, the court found this evidence “patently insufficient” to create a jury issue on negligent hiring or retention. Because the proof could not survive a directed verdict, it could not defeat summary judgment, and the Third District affirmed.

NEGLIGENT SELECTION AND VICARIOUS LIABILITY CLAIMS AGAINST FREIGHT BROKER NOT PREEMPTED; FAAAA SAFETY EXCEPTION SAVES STATE TORT CLAIMS ARISING FROM TRUCK CRASH

Simon v. Coyote Logistics, LLC, 50 Fla L. Weekly D2269 (Fla. 2d DCA Oct. 22, 2025):

The estate of a man killed in a fiery tractor–trailer crash sued multiple parties, including Coyote Logistics, a licensed freight broker that arranged transport of a beer load.

The estate alleged that Coyote negligently selected an unsafe motor carrier and, in a separate count, that Coyote actually acted as and had the right to control the motor carrier, making it vicariously liable. The trial court granted summary judgment for Coyote, holding the claims were preempted by the Federal Aviation Administration Authorization Act (FAAAA) and that the statute’s safety exception did not apply to brokers.

On appeal, the Second District agreed that negligent selection and vicarious liability claims against a broker fall within the FAAAA’s broad preemption clause because they relate to a broker’s prices, routes, or services in arranging transportation.

However, the safety exception preserves the “safety regulatory authority of a State with respect to motor vehicles.” Looking to decisions from other jurisdictions, the court held Florida’s common-law negligence framework for broker selection and control is part of the state’s traditional motor vehicle safety authority and is expressly carved out from preemption when a motor vehicle crash is involved.

The Second District rejected the notion that the safety exception can never apply to brokers simply because they are not named in the exception, however. Instead, the question is whether the particular state-law claim is an exercise of safety authority “with respect to motor vehicles.”

Here, the estate’s negligence and vicarious liability counts arose directly from a tractor–trailer crash allegedly caused by glaring safety defects (slow-moving truck on an interstate, inoperative lights, missing conspicuity tape). Those allegations were enough to bring the claims within the safety exception’s scope.

Because the trial court resolved the case solely on preemption and did not reach the merits, and because factual questions remained about Coyote’s role (broker versus de facto carrier and its level of control), the Second District reversed the summary judgment in Coyote’s favor and remanded for further proceedings on the estate’s claims.

NO ERROR IN DETERMINING THAT INSURER WAS ENTITLED TO ATTORNEY’S FEES PURSUANT TO ITS PROPOSAL FOR SETTLEMENT WHERE THERE WAS NO AMBIGUITY OR CONFLICT WITH THE RELEASE

Vega v. GeoVera Specialty Ins. Co., 50 Fla. L. Weekly D2278 (Fla. 4th DCA Oct. 24, 2025):

The insurer successfully defended a breach of contract suit over tornado damage the insured said it should have covered. It sought attorney’s fees based on a proposal for settlement.

Contrary to the plaintiff’s argument, there was no discrepancy between the proposal and the release because both identified the intent to fully and completely resolve the claims asserted (the proposal included all claims which could have been asserted by it in the lawsuit as well as any claims arising out of or related to those claims and or adjustment of those claims). The proposal did not involve future claims unrelated to the lawsuit.

While the court affirmed entitlement to fees, it was error for the trial court to adjudicate the amount when the notice of hearing only identified a motion for entitlement to attorneys’ fees and costs. Given the language of the notice of hearing and the related motion, the trial court violated the insured’s due process rights when it expanded the scope of entitlement hearing to determine the amount of fees and costs.

COURT AFFIRMED SUMMARY JUDGMENT IN FAVOR OF THE INJURED WORKER AND AGAINST THE BORROWED SERVANT DOCTRINE

Bryan Sagastume Mirlalda Concrete Holdings and Services v. Mitchell, 50 Fla. L. Weekly D2320 (Fla. 6th DCA Oct. 24, 2025):

In a case involving the borrowed servant doctrine, the court emphasized that the party claiming a “special employee” defense carries a substantial burden to overcome the presumption of continuing general employment.

To successfully establish a “borrowed servant” relationship to defeat the presumption, the alleged special employer must prove three specific criteria: (1) Existence of a contract (either express or implied); (2) Nature of the being done at the time of the injury was essentially the work of the alleged special employer; and (3) That the special employer had the power to control the details of work being done at the time of the accident.

Because the required contract is often an implied one, courts consider factors that show a consensual relationship such as who received the a benefit of the work, who held the right of control, and who paid the compensation.

Because no reasonable jury could return a verdict for the non-moving party defendant here on this issue, there was no genuine issue of fact to overcome the presumption of continuing employment.