          Supreme Court of Florida
                                    ____________

                                   No. SC15-1924
                                   ____________

                      MONICA A. GUTIERREZ, etc., et al.,
                                Petitioners,

                                          vs.

                     JOSE LUIS VARGAS, M.D., etc., et al.,
                                Respondents.

                                  [March 22, 2018]

LABARGA, C.J.

      Petitioner Monica A. Gutierrez (“Monica”), together with her parents Javier

and Monica E. Gutierrez (collectively “Petitioners”), seeks review of the decision

of the Third District Court of Appeal in Vargas v. Gutierrez, 176 So. 3d 315 (Fla.

3d DCA 2015), on the ground that it expressly and directly conflicts with decisions

of other district courts of appeal on a question of law. We have jurisdiction. See

art. V, § 3(b)(3), Fla. Const. For the reasons explained herein, we hold the trial

court did not abuse its discretion when it allowed Monica’s treating physicians to

testify during trial as to their diagnostic opinions and permitted Petitioners to

present rebuttal testimony from a second pathology expert. We further hold that
any prejudice attributable to comments made during Petitioners’ closing argument

was insufficient to warrant a new trial. We therefore quash the decision of the

Third District with respect to those issues.1

                                  BACKGROUND

      This case arises out of a medical malpractice action brought by Petitioners

against Respondent, Jose Luis Vargas, M.D. (Dr. Vargas).2 Dr. Vargas served as

Monica’s pediatrician from shortly after her birth in August 2000 until she was six

years old. Petitioners claimed that, during that time, Dr. Vargas negligently failed

to diagnose Monica with a chronic kidney disease known as C1q nephropathy,

which severely damaged Monica’s kidneys and forced her to undergo a kidney

transplant in May 2007.3 Dr. Vargas contended Monica suffered not from C1q

nephropathy but from membranoproliferative glomerulonephritis (MPGN),4 an

acute kidney disease which could not have been diagnosed sooner. The parties



      1. Respondent Dr. Vargas asks this Court to quash the Third District’s
decision insofar as it affirmed the trial court’s denial of his motion for directed
verdict. We decline to address this issue.

       2. The business entity under which Dr. Vargas operated his practice is also a
party to this case.

     3. In addition to Monica’s personal damages and medical expenses,
Monica’s parents brought a separate loss of consortium claim.

     4. This condition is also referred to as rapidly progressing
glomerulonephritis (RPGN).


                                         -2-
relied heavily on expert testimony concerning pathology, pediatrics, and kidney

disease to support their cases. During pretrial proceedings, the trial court entered a

uniform order providing “[e]ach party is limited to one (1) retained expert per

specialty. No other expert testimony shall be permitted at trial.” The case went to

trial in August 2012, and a mistrial was declared after three days. After a second,

fourteen-day trial in April 2013, a jury awarded Petitioners $3,831,476 in damages.

Petitioners then moved for additur, which Dr. Vargas accepted, and the trial court

entered a final judgment award of $4,101,476. Dr. Vargas moved for a new trial

on the issue of liability only, and the trial court denied the motion.

      Dr. Vargas appealed to the Third District Court of Appeal, asserting that the

trial court erred by denying his motion for directed verdict because Petitioners’

evidence was insufficient to prove he proximately caused Monica’s injury.

Vargas, 176 So. 3d at 321-22. Dr. Vargas also contended he was entitled to a new

trial on liability because the trial court had erroneously allowed Petitioners to

present testimony from multiple expert witnesses in the same area of specialty in

violation of a pretrial order, and because Petitioners’ counsel made improper

comments during closing arguments. Id. at 322, 326. The Third District affirmed

the trial court’s denial of Dr. Vargas’s motion for directed verdict, but reversed and

remanded for a new trial “based on the plaintiffs’ violation of the ‘one expert per




                                          -3-
specialty’ rule and for materially misrepresenting evidence in closing arguments.”

Id. at 318.

      Petitioners sought review from this Court, arguing that the Third District’s

decision conflicts with Cantore v. West Boca Medical Center, Inc., 174 So. 3d

1114 (Fla. 4th DCA 2015),5 and other cases, because it improperly limits the

testimony of treating physicians and rebuttal experts. In Cantore, the Fourth

District held in part “that the jury should hear from a plaintiff’s treating

physicians—as in more than one, when there are more than one involved—

regarding their care, recommendations, and medical decision-making.” Id. at 1119

(citing Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA

1998)). Petitioners also argue that the Third District erred in holding that

Petitioners’ closing arguments “mischaracterized the evidence, were highly

improper, and materially prejudiced Dr. Vargas.” Vargas, 176 So. 3d at 327.

      This review follows. A trial court’s decision not to grant a new trial is

reviewed for abuse of discretion. Brown v. Estate of Stuckey, 749 So. 2d 490,

497-98 (Fla. 1999). The issue of whether a district court’s decision on appeal “was

contrary to the standards set forth by this Court . . . presents a pure question of law,

and our review is de novo.” Van v. Schmidt, 122 So. 3d 243, 252 (Fla. 2013).



     5. That case is currently pending before this Court. Cantore v. W. Boca
Med. Ctr., Inc., No. SC15-1926 (Fla. reply brief filed Mar. 23, 2017).


                                          -4-
               THE “ONE EXPERT PER SPECIALTY” ORDER

      The Third District held the trial court abused its discretion by denying

Dr. Vargas’s motion for a new trial after it allowed Petitioners to call “not one, but

four separate pathologists at trial to testify regarding the timing and diagnosis of

[Monica’s] disease.” Vargas, 176 So. 3d at 320 (emphasis removed). As the

district court notes, the trial court had limited each party to one retained expert per

specialty by pretrial order. Id.

      During trial, Petitioners offered the deposition testimony of Dr. Victor

Pardo, a pathologist who examined a biopsy of Monica’s kidneys before the

transplant. Petitioners also presented Dr. Philip Ruiz, a pathologist who examined

Monica’s native kidneys after they were removed. Petitioners also presented two

expert witnesses to testify with respect to the pathology of Monica’s condition:

Dr. Arthur Cohen testified during Petitioners’ case-in-chief and Dr. Byron Croker

testified as Petitioners’ rebuttal expert.6 Each of these four pathologists testified

that Monica suffered from C1q nephropathy and gave an opinion as to the timing

of the disease’s progression. The Third District held the trial court abused its

discretion by failing to enforce its pretrial order, and granted a new trial “because

the plaintiffs were able to call four expert pathologists . . . and each pathologist



       6. Petitioners were allowed to present Dr. Croker because, at that point in
the trial, Dr. Cohen was unavailable to testify.


                                          -5-
was permitted to give his opinion on the nature and duration of Monica’s illness,

which unfairly prejudiced Dr. Vargas, who was limited to only one pathology

expert on that subject.” Id. at 322.

      A trial court’s enforcement of its own pretrial order is reviewed for abuse of

discretion, and reversal is appropriate only when the affected party can clearly

show the abuse resulted in unfair prejudice. Binger v. King Pest Control, 401 So.

2d 1310, 1313 (Fla. 1981). We hold that admitting the testimony of Dr. Pardo and

Dr. Ruiz did not violate the pretrial order because they testified as Monica’s

treating physicians, not as expert witnesses. We further hold the trial court did not

abuse its discretion by allowing Dr. Croker to testify in rebuttal.

                                Treating Physicians

      Testimony given by treating physicians blurs the boundary between fact

testimony and expert testimony because treating physicians and expert medical

witnesses both possess “scientific, technical, or other specialized knowledge”

which informs their testimony. § 90.702, Fla. Stat. (2017). Because of this

specialized knowledge, an expert is permitted to render an otherwise-

impermissible opinion about the evidence where such an opinion is helpful to the

jury. § 90.703, Fla. Stat. (2017) (expert witness may give opinion or inference on

ultimate issue); see also Estate of Murray v. Delta Health Group, Inc., 30 So. 3d

576, 578 (Fla. 2d DCA 2010) (expert may testify to ultimate issue, but may not


                                         -6-
“render an opinion that applies a legal standard to a set of facts”). Experts assist

the jury by testifying “regard[ing] a technical matter of which the jury [does] not

have basic knowledge.” State Farm Mut. Auto. Ins. Co. v. Bowling, 81 So. 3d 538,

540 (Fla. 2d DCA 2012). Conversely, we have held that expert testimony should

be excluded when the facts testified to “were within the ordinary experience of the

jurors and did not require any expertise beyond the common knowledge of the

jurors” to form a reasoned judgment of the facts. Johnson v. State, 393 So. 2d

1069, 1072 (Fla. 1980).

      While an expert witness assists the jury to understand the facts, a treating

physician testifies as a fact witness “concerning his or her own medical

performance on a particular occasion and is not opining about the medical

performance of another.” Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 186

(Fla. 3d DCA 2005). This necessarily involves testifying with regard to the

exercise of the treating physician’s specialized medical knowledge as applied to

other facts of the case, namely the plaintiff’s symptoms. A treating physician is a

fact witness, and testifies to past facts based on personal knowledge. Those facts

involve a technical matter about which the jury lacks basic knowledge, see

Bowling, 81 So. 3d at 540-41, but they are facts nonetheless. The treating

physician’s perception of the plaintiff’s symptoms, their diagnostic opinion, and

their recommendation of a particular treatment are all facts in issue. An expert


                                         -7-
witness testifies with the benefit of hindsight, whereas a treating physician does

not. See Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290-91 (Fla. 3d DCA

1998) (“Treating physicians do not acquire their ‘expert knowledge for the purpose

of litigation but rather simply in the course of attempting to make [their] patient

well.’ ”) (alteration in original) (quoting Frantz v. Golebiewski, 407 So. 2d 283,

285 (Fla. 3d DCA 1981))).

      Treating physicians are limited to their medical opinions as they existed at

the time they were treating the plaintiff, while an expert may form new opinions in

order to help the trier of fact decide the case. See Tetrault v. Fairchild, 799 So. 2d

226, 227-28 (Fla. 5th DCA 2001) (ordering a new trial where treating physician

gave opinion testimony based on MRIs he had not seen during treatment).

Although a treating physician may possess the same qualifications as an expert

witness, treating physicians form medical opinions in the course of rendering

treatment and may therefore testify to the fact that they formed those opinions, and

explain why they did so, provided such testimony is otherwise admissible. See

Ryder, 715 So. 2d at 290-91. For example, Dr. Vargas is also a pediatrician and

has specialized technical knowledge beyond the ordinary experience of a lay juror.

Neither party contends, however, that the “one expert per specialty” rule prevents

Dr. Vargas from testifying as to the facts of how and why he diagnosed Monica or

recommended a particular course of treatment, despite the involvement of his


                                         -8-
medical opinion in such testimony. Similarly, it was permissible for Dr. Pardo and

Dr. Ruiz to testify in their capacities as Monica’s treating physicians in order to

allow the jury to determine the ultimate issue presented by the case in light of all

the relevant facts.

      A witness’s ability to testify as a treating physician is predicated on the

witness’s having provided the plaintiff with the medical treatment which is the

subject of the witness’s testimony. In its decision below, the Third District held

that Dr. Pardo should be considered an expert witness rather than a treating

physician because he “never saw or administered care to Monica or spoke directly

to Dr. Paredes.” Vargas, 176 So. 3d at 319.7 Similarly, the Third District also held

Dr. Ruiz should not be considered a treating physician because “[s]imilar to Dr.

Pardo, Dr. Ruiz did not ever see or administer care or treatment to Monica, did not

communicate with Dr. Paredes, and did not offer an opinion as to the cause,

identity, or duration of Monica’s kidney disease.” Id. The Third District further

explained that Dr. Pardo and Dr. Ruiz testified during trial to findings they had not

made during Monica’s treatment, and “the first time the doctors had rendered these

opinions was during their testimony at trial.” Id. at 325.




      7. Dr. Ana Paredes was the pediatrician who admitted Monica to Miami
Children’s Hospital in October 2006 and oversaw her clinical treatment.


                                         -9-
      As the term suggests, a physician becomes a “treating physician” when the

physician participates in treatment: that is, when the physician applies medical

knowledge and judgment to render care or assist with care. The concept of

“treatment” in modern medicine is very broad. Patients with complex or long-term

medical problems may be treated by teams composed of several physicians, each

with a different specialty, all of whom play an essential role in the patient’s care.

Pathologists are such specialists. A pathologist studies “all aspects of disease, but

with special reference to the essential nature, causes, and development of abnormal

conditions, as well as the structural and functional changes that result from the

disease processes.” Stedman’s Medical Dictionary 1442 (28th ed. 2006) (defining

“pathology”). Even though a pathologist may never see the patient in person, they

may still be liable for medical malpractice committed against that patient. See

Hickman v. Emp’rs’ Fire Ins. Co., 311 So. 2d 778, 779 (Fla. 4th DCA 1975)

(malpractice case against pathologist who, examining patient’s gallbladder,

“negligently failed to notice the attached bile duct” which a surgeon had

negligently removed along with the gallbladder); see also Variety Children’s Hosp.

v. Osle, 292 So. 2d 382 (Fla. 3d DCA 1974) (malpractice case against pathologist

who negligently commingled tissue samples, resulting in injury).

      Dr. Pardo and Dr. Ruiz may never have stood at Monica’s hospital bedside,

but they assisted with Monica’s care by investigating the pathology of her


                                         - 10 -
condition and diagnosing the disease based on those investigations. Furthermore,

although the Third District correctly states that Dr. Ruiz “examined Monica’s

kidney only after Dr. Paredes had already determined that Monica’s kidneys could

not be saved and after Monica’s kidneys were removed,” 176 So. 3d at 325,

Dr. Ruiz performed his examination for the purpose of identifying and diagnosing

the disease from which Monica suffered, in order to ensure she continued to

receive the proper treatment and that the disease which caused her native kidneys

to fail would not harm her transplanted kidney. The timing of his examination in

no way alters the purpose for which it was done. Had Dr. Ruiz negligently failed

to diagnose a disease process which later harmed Monica’s transplanted kidney, he

himself could have been liable for providing deficient medical care. See Hickman,

311 So. 2d at 779 (pathologist negligently examined gallbladder which had already

been removed from patient); see also Osle, 292 So. 2d at 383 (pathologist

negligently mixed samples of cysts after cysts were surgically removed from

patient). Therefore, Dr. Pardo and Dr. Ruiz were among Monica’s treating

physicians, and their testimony as to the facts of their treatment of Monica did not

violate the trial court’s limitation on expert witness testimony.

      Not all medical opinions formed by a treating physician are automatically

admissible, however. “It is entirely possible that even a treating physician’s

testimony could cross the line into expert testimony.” Fittipaldi USA, 905 So. 2d


                                        - 11 -
at 186 n.1; see also Lion Plumbing Supply, Inc. v. Suarez, 844 So. 2d 768, 771

(Fla. 3d DCA 2003) (noting there is no “black letter rule whereby the testimony

offered by a treating practitioner is never considered for purposes of a one-expert-

per-side limitation”). If a treating physician testified to a medical opinion formed

for the purpose of litigation rather than treatment, then the mere fact that the

physician once treated the plaintiff would not prevent that doctor from being

considered an expert witness. See Fairchild, 799 So. 2d at 228 (treating physician

was expert witness because he “was called by the plaintiff not to testify to his ‘care

and treatment’ of plaintiff but to render an opinion as a neuroradiologist based

upon his review of MRIs supplied to him in plaintiff’s counsel’s office”). Again,

the determination turns on the role played by the witness: if the treating physician

gives a medical opinion formed during the course and scope of treatment in

fulfillment of their obligation as a physician, then the physician is a fact witness,

albeit a highly qualified one. If, however, the treating physician gives an opinion

formed based on later review of medical records for the purpose of assisting a jury

to evaluate the facts in controversy, the physician acts as an expert witness, and

should be considered as such. See Suarez, 844 So. 2d at 771 (holding it is

improper for a treating physician to “serve[] as a conduit to place specialist

testimony before the jury, or offer[] medical opinions based on specialist reports”

when testifying as a lay witness rather than an expert).


                                         - 12 -
      Although Dr. Vargas argues, and the Third District assumed, that Dr. Pardo

and Dr. Ruiz formed their diagnostic opinions in preparation for trial rather than

for purposes of treatment, the record does not support this conclusion. Dr. Pardo

testified that his pathology study of Monica’s kidneys showed “proliferative

glomerulonephritis with C1q deposits.” He also testified as to his estimate of how

long Monica’s condition had taken to develop, and made clear that he formed this

conclusion as part of his pathology study. The questions asked during his

deposition were limited to the pathology study of Monica’s kidney tissue that he

himself had conducted, and were not based on later review of other records.8

Dr. Ruiz’s testimony was also limited to his own pathology study of Monica’s

tissue.9 Dr. Pardo and Dr. Ruiz testified to the facts of their participation in

Monica’s treatment, which necessarily included their diagnostic reasoning and




      8. Although Dr. Pardo testified that he had reviewed his report and slides in
preparation for giving testimony, this does not change our analysis: four years had
passed between the time of Dr. Pardo’s study and the taking of his deposition.
Dr. Pardo testified that he performs “around 350” pathology studies each year. He
did not give testimony that involved review of any materials other than those
involved in his original study of Monica.

       9. During trial, Petitioners’ counsel sought several times to elicit comment
from Dr. Ruiz with respect to Dr. Pardo’s pathology report, despite the fact that
Dr. Ruiz had not reviewed that report in the course of treating Monica. Dr. Vargas
objected each time, and the court sustained each objection on the ground that a
treating physician could not comment on reports he did not review during
treatment.


                                         - 13 -
conclusions. Therefore, Dr. Pardo and Dr. Ruiz were fact witnesses rather than

additional expert witnesses.

                                  Cumulativeness

      Although treating physicians do not necessarily fall within the scope of a

“one expert per specialty” limitation, their testimony may nevertheless be excluded

if it is cumulative. As the Fifth District Court of Appeal has explained, the Florida

Evidence Code

      expressly requires a trial judge to exercise reasonable control over the
      presentation of the evidence so as to avoid the needless consumption
      of time, and . . . relevant evidence is inadmissible if its probative
      value is substantially outweighed by a needless presentation of
      cumulative evidence. Furthermore, Florida Rule of Civil Procedure
      1.200(b)(4) specifically provides that at a pretrial conference, a trial
      court may consider and determine a limitation on the number of
      expert witnesses.

Woodson v. Go, 166 So. 3d 231, 233 (Fla. 5th DCA 2015). There is no exception

for medical malpractice cases. Id. As the rule suggests, cumulativeness alone is

not sufficient grounds to exclude evidence: the probative value of the evidence

must be “substantially outweighed” by the danger of “needless presentation of

cumulative evidence.” § 90.403, Fla. Stat. (2017) (emphasis added); see also

Delgardo v. Allstate Ins. Co., 731 So. 2d 11, 16 (Fla. 4th DCA 1999) (“The real

issue facing the trial court was whether a witness will offer testimony that

unnecessarily duplicates the testimony of another witness, in which case the trial

court has discretion to limit or exclude it.”). Courts should exercise their discretion

                                        - 14 -
to avoid the needless waste of time through unnecessary presentation of cumulative

evidence. Woodson, 166 So. 3d at 233.

      In Delgardo, the Fourth District Court of Appeal determined the testimony

of one orthopedic surgeon was not cumulative to the testimony of a second

orthopedic surgeon, both of whom had treated the plaintiff. 731 So. 2d at 11-12.

The trial court had not entered a pretrial order limiting each side to one expert per

specialty. Id. at 14. Instead, the district court reviewed a trial court’s order

granting a new trial on the grounds that the testimony of the two surgeons was

cumulative and repetitive. Id. In holding that the testimony of the two surgeons

was not cumulative, the Fourth District explained:

      While two proposed witnesses of the same medical specialty might
      indicate the possibility of cumulative evidence, the real question is
      whether they will testify to cumulative opinions based on the same
      facts. Clearly a party is not necessarily guilty of calling duplicative
      witnesses simply because she calls two witnesses of the same medical
      specialty. The testimony of the second surgeon in this case
      establishes rather clearly that his evidence was based in part on the
      same facts and evidence as the first’s but also in part on new facts and
      evidence. Therefore as a matter of law it was not cumulative.

Id. at 16. This explanation illustrates the difference between cumulative testimony,

which courts have discretion to exclude, and relevant confirmatory testimony,

which they do not. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1259 (Fla.

2014) (holding that courts have no discretion to exclude relevant evidence that is

otherwise admissible). The two treating surgeons in Delgardo both testified to the


                                         - 15 -
same medical conclusion, but did so based on separate facts gleaned from their

independent examinations of the plaintiff during the course of treatment. 731 So.

2d at 12-13. Although the testimony of one surgeon tended to confirm the

conclusions of the other, neither surgeon engaged in improper bolstering, nor was

one’s testimony cumulative to the other’s. Id. at 16.

      In the present case, the trial court did not abuse its discretion when it

concluded that the testimony of Dr. Pardo and Dr. Ruiz, though confirmatory, did

not rise to the level of unnecessary cumulativeness. Each pathologist based his

testimony on a separate review of different slides made from biopsy material

collected at different times. Although their respective testimony expressed similar

conclusions, Dr. Pardo and Dr. Ruiz each testified to their personal observations

“based in part on the same facts and evidence . . . but also in part on new facts and

evidence.” Delgardo, 731 So. 2d at 16 (emphasis removed). Therefore, their

testimony was not cumulative. Furthermore, for the reasons discussed above, their

testimony was not cumulative to the testimony of Petitioners’ pathology experts:

Dr. Pardo and Dr. Ruiz testified to what they observed and concluded during

Monica’s treatment. Dr. Cohen and Dr. Croker, in contrast, testified to opinions

formed based on the review of not just the evidence available to Monica’s treating

pathologists, but other evidence in the case as well. Although Petitioners’ fact




                                        - 16 -
witnesses and expert witnesses testified to similar conclusions, this does not render

their testimony cumulative.

                          Petitioners’ Rebuttal Witness

      The Third District also held the testimony of Dr. Croker, Petitioners’ sole

rebuttal witness, was improper:

      In rebuttal, rather than recalling Dr. Cohen to address portions of
      Dr. Craver’s testimony he had not addressed, the plaintiffs called a
      fourth expert pathologist witness, Dr. Croker, to testify about three of
      the slides Dr. Craver[, Dr. Vargas’s pathology expert,] had examined.

             This rebuttal testimony was largely unnecessary, totally
      cumulative, and served only to bolster the testimony of the plaintiffs’
      three prior expert pathologists, as Dr. Cohen had already given his
      opinion about the nature and timing of the disease.

176 So. 3d at 326. Trial courts have broad discretion to admit rebuttal testimony,

and “a trial court abuses that discretion when it limits non-cumulative rebuttal that

goes to the heart of the principal defense.” Mendez v. John Caddell Constr. Co.,

700 So. 2d 439, 440-41 (Fla. 3d DCA 1997).

      As we have explained, Dr. Croker was not Petitioners’ fourth expert

pathology witness: Dr. Pardo and Dr. Ruiz did not testify as experts, but as treating

physicians. Dr. Croker’s testimony was not cumulative to Dr. Cohen’s testimony

because Dr. Croker testified exclusively about evidence which Dr. Cohen did not

address in his testimony. See Delgardo, 731 So. 2d at 16 (testimony is not

cumulative if it is based on evidence not discussed by prior testimony).


                                        - 17 -
Specifically, Dr. Croker discussed photographs of pathology slides taken by

Dr. Cohen in his review of the case. In his testimony during Petitioners’ case-in-

chief, Dr. Cohen discussed some—but not all—of the photos he had taken. The

defense pathology expert, Dr. Randall Craver, discussed the remaining

photographs during Dr. Vargas’s case-in-chief. On rebuttal, Dr. Croker discussed

only the photographs introduced during Dr. Craver’s testimony. This second set of

photographs was only introduced in Dr. Vargas’s case-in-chief, and Dr. Cohen did

not discuss those photographs at all. Therefore, Dr. Croker’s testimony was not

cumulative to Dr. Cohen’s testimony.

      Furthermore, Dr. Croker’s testimony did not improperly bolster Dr. Cohen’s

testimony. Improper bolstering occurs when an expert testifies on direct

examination that some other authority not subject to cross-examination, such as

another expert whom the witness consulted or a secondary treatise, agrees with the

testifying expert’s opinions. See Linn v. Fossum, 946 So. 2d 1032, 1039 (Fla.

2006) (“[A]n expert is not permitted to testify on direct examination that the expert

relied on consultations with colleagues or other experts in reaching his or her

opinion.”). This prohibition applies “the general rule that it is improper on direct

examination to introduce evidence to support the credibility of a witness” to the

testimony of expert witnesses. Id. The reasons for this rule are twofold: first, such

testimony “indicates a group consensus based on hearsay that would not be


                                        - 18 -
conveyed by testimony that the expert relied on records, tests, or reports from . . .

medical providers directly involved in the diagnosis or treatment of the patient.”

Id. Second, “[t]he opposing party is unable to cross-examine the nontestifying

experts who participated in the consultation[,]” and “there is no way for the trial

court to assess whether the consulting expert, upon whom the testifying expert

relied in whole or in part, is herself qualified or had a proper foundation.” Id. In

other words, “opinion testimony by consensus is essentially immune to challenge”

and is therefore inadmissible. Id. Here, nothing in Dr. Croker’s testimony

indicates that he consulted with Dr. Cohen about the truth or accuracy of his

conclusions, and none of Dr. Croker’s testimony references Dr. Cohen’s analysis

of the evidence. Dr. Croker gave his own independent opinion and did not bolster

the testimony of Dr. Cohen.

      Dr. Croker’s testimony also was not improper rebuttal. “Rebuttal evidence

explains or contradicts material evidence offered by a defendant.” Britton v. State,

414 So. 2d 638, 639 (Fla. 5th DCA 1982). During its case-in-chief, a plaintiff

must establish a prima facie case, but is not required to anticipate possible defenses

by affirmatively addressing them in its case-in-chief. See Heberling v. Fleisher,

563 So. 2d 1086, 1087 (Fla. 4th DCA 1990) (holding that the plaintiff need not

“disprove all anticipated defenses in its main case—that is exactly what rebuttal is

supposed to accomplish”). When not cumulative, rebuttal is appropriate to


                                        - 19 -
discredit an opposing party’s defense or to challenge the conclusions of an

opposing party’s expert. See Griefer v. DiPietro, 708 So. 2d 666, 672 (Fla. 4th

DCA 1998) (holding exclusion of rebuttal expert was improper where expert’s

“rebuttal testimony would have explained and contradicted material evidence

offered by [defendant]”).

      Here, the intended effect of Dr. Croker’s testimony was to discredit

Dr. Vargas’s expert, Dr. Craver, by showing that even the evidence upon which

Dr. Craver relied supported a diagnosis of C1q nephropathy rather than MPGN.

“Rebuttal to challenge the calculations of a defense expert is permissible rebuttal

evidence.” Id. at 672 (citing Zanoletti v. Norle Props. Corp., 688 So. 2d 952 (Fla.

3d DCA 1997)). Therefore, Dr. Croker’s testimony was permissible rebuttal, and

the trial court did not abuse its discretion by admitting it.

      Finally, although allowing Dr. Croker to testify did permit Petitioners to call

a second expert witness in a particular specialty despite the pretrial order, the trial

court did not abuse its discretion in doing so. Compliance with pretrial orders

prevents the injustice and waste of resources which result when counsel resorts to

trial tactics which seek to ambush opposing parties. See Binger, 401 So. 2d at

1314. “Counsel who disobey a trial court order entered months earlier should not

be rewarded for their conduct.” Fla. Marine Enters. v. Bailey, 632 So. 2d 649, 652

(Fla. 4th DCA 1994). The relevant facts of a case “should be the determining


                                         - 20 -
factor rather than gamesmanship, surprise, or superior trial tactics.” Binger, 401

So. 2d at 1313 (quoting Dodson v. Persell, 390 So. 2d 704, 707 (Fla. 1980)).

Furthermore, although the enforcement of a pretrial order rests within a trial

court’s considerable discretion, this discretion “must not be exercised blindly” and

should be applied with due consideration of possible prejudice to the parties.

Binger, 401 So. 2d at 1314. The Florida Rules of Civil Procedure aim “to

eliminate surprise, to encourage settlement, and to assist in arriving at the truth.ˮ

Id. at 1313 (quoting Spencer v. Beverly, 307 So. 2d 461, 462 (Fla. 4th DCA 1975)

(Downey, J., specially concurring)). A trial court enters orders in the expectation

they will be obeyed, and the parties in turn rely on the sound discretion of the trial

court to ensure an orderly and fair administration of justice.

      In the present case, the trial court permitted Dr. Croker to testify because

Dr. Cohen was unavailable during rebuttal. The record reflects the parties knew

well in advance that Dr. Cohen would be unable to return to testify on rebuttal, and

there was no possibility that Dr. Vargas would be unfairly surprised by his

testimony. Given Dr. Cohen’s unavailability, the trial court did not abuse its

discretion by permitting Dr. Croker to testify despite its pretrial order.

      Accordingly, we hold the trial court did not abuse its discretion by

permitting Dr. Croker, Dr. Pardo, and Dr. Ruiz to testify.




                                         - 21 -
                            IMPROPER ARGUMENT

      The Third District also determined that Petitioners’ counsel had made

improper comments during closing argument which misstated the evidence

introduced at trial. During closing argument, Petitioners’ counsel stated, “[I]f the

kidneys could have been saved, this child never would have needed any of this.

It [sic] would have needed some steroids, some ace [sic] inhibitors, and that’s it.

That’s what Dr. Kaplan told you.”10 Dr. Vargas objected that this comment was

outside the evidence. The trial court overruled the objection, and instructed the

jurors to “please recall and rely on [their] own recollection of the evidence.”

Dr. Kaplan testified during trial that, with proper diagnosis and treatment,

Monica’s prognosis would have been “significantly better,” and that other patients

with C1q nephropathy who have received such treatment “have almost universally

gone on to do well and remain in remission and not require dialysis or transplant.”

Dr. Kaplan stated that the sooner a diagnosis was made and treatment was started,

the better Monica’s prognosis would have been. He also testified that patients who




      10. Dr. Bernard Kaplan was Petitioners’ expert witness in pediatric
nephrology.


                                        - 22 -
are correctly diagnosed in the early stages of kidney disease can be successfully

treated with “medications” and that some patients “may not need to be treated with

medications in stage one.”

      The Third District concluded that Petitioners’ reference in closing argument

to steroids and ACE inhibitors rather than “medications” was “particularly

prejudicial, and, when combined with the cumulative expert testimony, [it]

warrant[s] a new trial.” 176 So. 3d at 326 (emphasis added). As we have

explained previously, the Third District’s conclusions regarding “cumulative”

expert testimony in this case were erroneous. Therefore, according to the Third

District’s own analysis, any prejudice arising out of this comment was insufficient

by itself to warrant a new trial. We agree. However inadvisable it may have been,

the single comment made by Petitioners’ counsel did not have the potential to

compromise the fairness of the proceeding such that a new trial would be required.

                                  CONCLUSION

      Based upon the foregoing, we hold the trial court did not abuse its discretion

by permitting Dr. Pardo and Dr. Ruiz to testify as Monica’s treating physicians,

nor by permitting Dr. Croker to testify as a rebuttal expert in this case. We also

hold that the comment made by Petitioners’ counsel during closing argument does

not merit a new trial. Accordingly, we quash the decision of the Third District

with respect to those issues, approve the Fourth District’s decision in Cantore to


                                        - 23 -
the extent it held a treating physician may testify regarding their care and treatment

of the plaintiff, and remand the present case to the Third District for further

proceedings consistent with this decision.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., dissents with an opinion, in which LAWSON, J., concurs.
POLSTON, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

CANADY, J., dissenting.

      The Third District’s decision in Vargas v. Gutierrez, 176 So. 3d 315 (Fla. 3d

DCA 2015), does not expressly and directly conflict with the Fourth District’s

decision in Cantore v. West Boca Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th

DCA 2015), on the same question of law. See art. V, § 3(b)(3), Fla. Const.

Because this Court lacks jurisdiction to review Vargas, I dissent.

      In Vargas, the relevant issue addressed by the Third District was whether

four medical professionals (pathologists) called by the plaintiffs at trial were all

expert witnesses. Vargas, 176 So. 3d at 322-26. This determination was important

because of a pretrial order limiting each side to one expert witness per specialty

area. Id. at 320. Vargas examined the different methods for distinguishing

medical professionals testifying as expert witnesses from medical professionals

testifying as treating physician fact witnesses. Id. at 323-25. Vargas ultimately

                                         - 24 -
concluded that the four witnesses all gave expert testimony and that the trial court

thus abused its discretion by allowing the plaintiffs to violate the pretrial order. Id.

at 322. The majority here disagrees with Vargas and instead concludes that two of

the witnesses were treating physicians testifying as fact witnesses and that one of

the other witnesses was properly allowed to testify as an expert witness on rebuttal.

Majority op. at 13-14, 21. In doing so, the majority recognizes that a treating

physician can in fact be an expert witness, depending “on the role played by the

witness.” Majority op. at 12. Nothing in Vargas suggests otherwise.

      In Cantore, the Fourth District addressed a very specific limitation on the

admissibility of “subsequent treating physician” testimony presented by defendant

physicians in medical malpractice actions. The narrow issue in Cantore was

whether certain hypothetical deposition testimony was proscribed by Saunders v.

Dickens, 151 So. 3d 434 (Fla. 2014)—namely, whether a subsequent treating

physician impermissibly testified “that adequate care by the defendant physician

would not have altered the subsequent care.” Cantore, 174 So. 3d at 1117 (quoting

Saunders, 151 So. 3d at 442). Cantore ultimately concluded that the testimony at

issue was “properly admitted.” Id. at 1121. In doing so, Cantore distinguished the

testimony under consideration from that in Saunders, noting that, among other

things, the testifying physician in Cantore specifically testified “that he would have

made different recommendations” if he had been told that the patient’s true


                                         - 25 -
condition was as the plaintiffs suggested. Id. at 1120. Cantore also distinguished

the role of the testifying physician there from the role of the testifying physician in

Saunders. For example, Cantore described the testifying physician as “a neutral

third-party witness,” unlike the subsequent treating physician in Saunders who was

a defendant in the case at the time of his deposition. Id. at 1121. Cantore also

described the testifying physician as an intimately involved “co-treating” physician

rather than a “subsequent” treating physician. Id. at 1119. And Cantore

repeatedly referred to the testifying physician as an “expert” witness. See id. at

1115, 1119-20. In fact, Cantore concluded in part that the disputed testimony was

admissible because it was proper expert testimony given by an expert witness:

      Objections, based on speculation and improper hypothetical, to the
      admissibility of Dr. Sandberg’s testimony were properly overruled
      because as a treating physician, neurosurgeon, and expert on July 3,
      2008, Dr. Sandberg was qualified to answer even questions which
      assumed certain facts which did not occur, as experts are allowed to
      do.

Id. at 1120 (emphasis added). In short, the only question of law decided by

Cantore was that Saunders did not apply to the testimony presented under the very

different factual circumstances in Cantore.

      Vargas and Cantore undoubtedly both involve medical malpractice cases

and the testimony of certain “treating” physicians, but the decisions in the two

cases do not expressly and directly conflict on the same question of law. See art.




                                         - 26 -
V, § 3(b)(3), Fla. Const. Because this Court does not have jurisdiction to review

Vargas, I dissent.

LAWSON, J., concurs.

POLSTON, J., dissenting.

      The Third District Court of Appeal’s decision in Vargas v. Gutierrez, 176

So. 3d 315 (Fla. 3d DCA 2015), does not expressly and directly conflict with the

decisions alleged by the Gutierrezes. Therefore, this Court does not have the

constitutional authority to review this case, and I respectfully dissent.

      Specifically, the Third District’s decision in Vargas does not conflict with

the Fourth District’s decision in Cantore v. West Boca Medical Center, Inc., 174

So. 3d 1114 (Fla. 4th DCA 2015). As the majority recognizes, the Third District’s

decision in Vargas analyzed whether disputed testimony from multiple physicians

should be considered treating physician testimony or whether the testimony

constituted expert witness testimony that violated the trial court’s pretrial ruling

that “[e]ach party is limited to one (1) retained expert per specialty.” Majority op.

at 3. Ultimately, the Third District held that the testimony from the four physicians

was expert witness testimony that unfairly prejudiced Dr. Vargas. Vargas, 176 So.

3d at 322. In contrast, the Fourth District in Cantore, 174 So. 3d at 1119, held that

the physician’s testimony in that case was not prohibited by this Court’s decision

in Saunders v. Dickens, 151 So. 3d 434, 442 (Fla. 2014), because the specific


                                         - 27 -
physician was not a “subsequent treating physician,” which was at issue in

Saunders, but was instead a “co-treating physician, and thus his role squarely

exceeded that of a subsequent treating physician.” In other words, Vargas

analyzed the difference between treating physician testimony and expert physician

testimony, whereas Cantore analyzed the difference between subsequent treating

physician testimony and co-treating physician testimony. Because these are two

different legal issues, the two decisions do not conflict.

      Accordingly, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Third District - Case Nos. 3D13-1923 and 3D14-0048

      (Dade County)

Marvin Kurzban and Jed Kurzban of Kurzban, Kurzban, Weinger, Tetzeli & Pratt,
P.A., Miami, Florida; and Bambi G. Blum of Bambi G. Blum, P.A., Miami,
Florida,

      for Petitioner

Dinah Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, Florida; and Ilisa W. Hoffman of Ilisa W. Hoffman, P.A., Coral Gables,
Florida,

      for Respondent




                                         - 28 -
