ISTRICT

OURT

PPEAL

TATE

LORIDA

OURTH

ISTRICT

January Term 2010

MARCJ. PHILIPPON, M.D.,

and

HOLY CROSS HOSPITAL, INC

., d/b/a

HOLY CROSS MEDICAL GROUP; HOLY CROSS HOSPITAL, INC.,

d/b/a

HOLY CROSS HOSPITAL; HOLY CROSS HEALTHCORPORATION

d/b/a

HOLY CROSS HOSPITAL, INC.,

Appellants,v.

KATIE SHREFFLER

and

SMITH & NEPHEW ENDOSCOPY, INC.,

f/k/a

SMITH & NEPHEW DYONICS

INC.;SMITH & NEPHEW, INC.,

Appellees.Nos. 4D07-4104, 4D07-4105,4D07-4430, 4D08-28, 4D08-2075,and 4D08-2254[March17, 2010]L

EVINE

,J. These consolidated appeals and cross-appealin this medicalmalpractice action present several issuesregarding the patient’sintroduction of two witnesses and evidence of the surgeon’s medicalprivileges, as well the closing argument bypatient’s counsel.Specifically, appellants raise on appealthe following for consideration: whether the trial court improperly allowed the expert opinion of thepatient’s treating physician; whether the trial court improperly allowedthe testimony of a “surprise” witness; whether the trial court erred inrequiring the admission of the delineation of the surgeon’s medicalprivileges; and whether the patient’s closing arguments were improper.We find that none of these issues require reversal, and therefore weaffirm the judgment.In 1997, Dr. Philippon(the “surgeon”), an orthopedic surgeon at HolyCross Hospital(the “hospital”), performed a hip arthroscopy onseventeen-year-old Katie Shreffler (the “patient”) to repair a labral tear.When the patient did not recover from the surgery within the projectedtime, she requested a surgical report from the hospitaland went to other

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doctors. In 1998, Dr. McCarthy, a hip arthroscopist, performed adebridement to remove the tissue that could not heal, but the patientcontinued to experience pain and limited mobility.In 1999, the patient filed a complaint against the surgeon and thehospital asserting claims of medical negligence and vicarious liability fornegligently granting the surgeonprivileges. The patient subsequentlyfiled an amended complaint adding the manufacturer of the surgicalinstruments, Smith & Nephew, as a defendant and asserting a claim of products liability. After a trial, the jury found for the patient andreturned a verdict finding she sustained $2.15 million in damages,assigning liability of 43% to the surgeon, 57% to the hospital and 0% tothe manufacturer. This consolidated appeal follows.Although a pretrial order limited the parties toone expert perspecialty,the court permitted the patient to offer the testimony of hertreating physician, Dr. Michael Tidwell. According to Tidwell, thepatient’s recurrent pain suggested a failed surgery. Tidwell observed thatthe patient had gouges in her cartilage caused by a sharp instrument.He reasoned that the gouges were inflicted by the surgeon because he was the only person who had been in the hip joint before Dr. McCarthy. Tidwell opined that, within a reasonable degree of medical probability,the injuries were caused by the surgeon’s procedure and that the injuryto the joint fell below the standard of care.“[T]he trial court has broad discretion to determine the number of witnesses to be called by either party.”

Elder v. Farulla

, 768 So. 2d 1152,1155 (Fla. 2d DCA 2000). “The range of subjects about which an expert witness will be allowed to testify are within the trial judge’s broaddiscretion.”

Roseman v. Town Square Ass’n

, 810 So. 2d 516, 522 (Fla.4th DCA 2001). The surgeon contends that the patient was allowedeffectively two expert witnesses instead of the one expert per specialtylimitation outlined in the pretrial order. During trial, the patient arguedthat allowing her to have an additional expert would even up the sides,because the both the surgeon and manufacturer were permitted oneexpert, effectively meaning the defense would have twoexperts.Ultimately, the surgeon neither called his listed expert,nor requestedpermission to call a second additional expert orthopedic surgeon. The trial court was within its discretion to allow the testimony of thesecond expert orthopedic surgeon, Dr. Tidwell. Tidwell testified to thebreach in the standard of care, in addition to his testimony as a fact witness. As the Fifth District has explained,

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The fact that it was corroborative of other testimony, or evencumulative to it, does not matter. A medical malpracticecase is always necessarily a battle of expert witnesses.Within only very broad limits all qualified opinion testimonyshould be allowed; that is, not disallowed because it iscumulative to other evidence.

Lake v. Clark

, 533 So. 2d 797, 799 (Fla. 5th DCA 1988).Further during trial, the patient sought to introduce the eyewitnesstestimony of Julie Snogles, a surgical technician who had been presentduring the operation. During discovery,the patient had repeatedlyrequested contact information regarding Snogles, but despite court order,appellants never provided the information. The patient’s counsel did notlocate the witness until he conducted an internet searchduring trial. The patient maintained there was no prejudice to appellantsbecausethey clearly knew ofSnogles. Snogles’s name was in the hospital recordsand in the hospital’s answer to interrogatories.Appellants argued that they would be prejudiced by her testimony, asknowledge that she would testify would have affected their openingstatement, their cross-examination of witnesses, and their defense. They would have investigated Snogles’s background and history for purposesof cross-examining her. After deposition, appellantsfurther argued thatthey were prejudiced because Snogles named people in her depositionthat they would have wanted to question. The court found that there was no surprise, because the patient hadattempted to obtain the witness’s contact information, and both sidesknew the witness’s name and of her presence in the operating room.Although the court concluded that the hospital either knew or shouldhave known how to locate her, it found no evidence of willfulnondisclosure or bad faith. The court ruled that taking the witness’sdeposition cured any prejudiceand that the hospital had not shown howit could have protected itself more by knowing of the witness sooner. Thecourt permitted her to testify, concluding that her testimony would notendanger the fairness of the trial.Snogles testified that the patient was the second or third patient upon whom the surgeon had performed a hip arthroscopy. The surgeon toldher that it was a new procedure and that he was new at performing theprocedure. Halfway through the surgery, the surgeon created a thirdportal. Snoglesasked him why he was making a third hole, and he said