Posted by Nydia Streets of Streets Law in Florida Alimony

If a spouse claims he or she is disabled and unable to work either part-time or full-time, what type of evidence should be presented to support this claim? One form of evidence might be the testimony of a treating physician. This was an issue in the case Holland v. Holland, 5D23-36 (Fla. 5th DCA April 6, 2023).

At issue in this divorce case was the former wife’s claim for alimony. The former wife was an optometrist who operated her own practice up until the case was in litigation. She had never worked full-time, had been the family’s main caregiver, and never earned more than about $50,000 annually. The former husband was a lawyer who operated his own law firm. His income varied, but the trial court found his income to be $240,000 for the year 2020.

To support her claim for alimony, the former wife hired a forensic accountant and designated her treating physician as an expert regarding her ability to work full time as an optometrist. The forensic accountant testified two weeks prior to trial that he did not have any final opinions. The former husband moved to exclude his testimony, and this motion was granted by the trial court. The former husband also moved to exclude the physician’s testimony that the former wife had medical conditions which would render her disabled and unable to practice full-time as an optometrist. To support the exclusion of the physician’s testimony, the former husband argued “(1) [The physician] had not seen the video surveillance of Former Wife that arguably showed her to be physically able to do a wide variety of activities; (2) [The physician] had not consulted with the surgeon who opined that Former Wife’s bilateral carpal tunnel surgery was completely successful, leaving her able to engage in light duty work which is arguably consistent with being an optometrist; (3) [The physician] was unaware of Former Wife’s vigorous exercise program; and (4) [The physician] did not conduct an in-person physical exam, relying instead on a telemedicine interview.” The former husband also pointed to a part of the physician’s medical records containing a report of an abnormal nerve conduction test performed on someone other than the former wife.

The physician was not allowed to testify at the Daubert hearing, but filed an affidavit stating “that this ‘mystery report’ was not part of his file, that he had no patient with the name found on that report, and that he had not relied on the ‘mystery report’ in reaching his opinions regarding Former Wife’s disability.” The former husband also filed affidavits of his own experts criticizing the physician’s methodology. The trial court ultimate excluded the physician’s testimony. The former wife appealed.

As to the court’s exclusion of the forensic accountant’s testimony, the appellate court held “However, we find neither error nor abuse of discretion in excluding [the accountant’s] trial testimony, based on Binger considerations, given that same lack of final opinions shortly before the trial. Former Wife’s argument, if factually supported, that [the accountant’s] inability to timely formulate opinions was due to Former Husband’s failure to produce requested financial documents, may have been grounds for a motion to compel, but she did not file one. Under the circumstances existing below, the trial court did not abuse its discretion in excluding [the accountant]. The trial court will need to evaluate the relevant circumstances as it sets disclosure and discovery deadlines leading up to conducting a new trial.”

As to the exclusion of the physician, the appellate court held “Under the circumstances present in this case, the potential problems with the bases for [the physician’s] disability opinion, such as considering the wrong patient’s test results and failing to consider other available information, would have been proper fodder for an intense cross-examination of [the physician], but they do not demonstrate a basis for disqualification under Daubert in this bench trial. We are compelled to agree with Former Wife that the trial court abused its discretion in excluding [the physician’s] disability opinion testimony, and we reverse for further proceedings.”

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