Failure to raise a timely objection under the “same specialty” statute

September 1, 2013

Lucante v. Kyker, — So.3d —, 2013 WL 4614754 (Fla.App. 1 Dist. 2013)

Everyone knows that if your opponent adduces inadmissible hearsay into evidence and you do not promptly object to it, the evidence would become admissible. In the present case, Florida’s First District Court of Appeals held that the same waiver rule will apply when a defendant fails to raise a timely objection to the plaintiff’s medical expert report that comes from a doctor whose specialty is not similar to the defendant’s. The Court ruled that “Because the [defendants] failed to deny the satisfaction of preconditions [for filing the suit] specifically and with particularity, the [defendants] could not later assert that a condition precedent had not been met.”

If so, what would happen at the trial itself, given that the misalignment between the two specialties precludes the plaintiff’s expert from testifying about the applicable standard of care?

How should the trial court rule if the defendants object to the expert’s testimony on irrelevancy grounds?

I posit that the court of appeals should have required the plaintiff to submit an expert report from a doctor who works in the same specialty as the defendants.