Board argues against new rule for med mal experts.

For only the third time in 30-plus years, the Bar Board of Governors is recommending the Supreme Court not adopt a legislatively approved change to the statutory evidence code into the procedural rules of evidence.

At issue is a law passed in 2011 requiring that out-of-state experts in medical and dental malpractice cases register with the Florida Department of Health, pay a $50 fee, and be subject to possible review by the department, including allegations that they provide misleading testimony.

The board has been debating the recommendation from the Code and Rules of Evidence Committee since last May and sent it back once for reconsideration by the committee.

The committee made some minor changes to its proposal in September, but by a 14-13 vote kept to its core recommendation that the court should adopt the change made to F. S. [section]766.102(12) into the rules of evidence. (See story in the October 15 Bar News.)

At their December 7 meeting on Amelia Island, board members said this is one of the rare instances when statutory changes to the evidence code should not also be included in the evidence rules because it raises constitutional issues and conflicts with other procedures.

"Substantively, this is a statute where the Legislature tells the court that the court can't hear testimony from certain witnesses unless the executive branch gives them a license," board member Bill Davis said.

Board member Jay Cohen argued that the statute sets no standards for evaluating the out-of-state experts but does leave them open to the threat of being sanctioned in Florida, which, in turn, could be reported to their home state licensing authority.

"Why would they subject themselves potentially to sanctions in the State of Florida for being an expert witness when that has broad implications to their licenses in their home states?" said Cohen.

"It appears to be unconstitutional, and it appears likely to have a chilling effect on who is willing to testify on both sides in medical cases in Florida, and in that regard it is prejudicial to the administration of justice," said board member Scott McMillen, who made the motion to recommend the court not adopt the law into the evidence rules.

Board members questioned the constitutionality of the law, because it only affects medical malpractice cases. They also argued that procedural rules already guide judges in evaluating and accepting experts and give judges sanctioning authority if an expert provides...