One Bite at the Apple: Expert Witness Opinions Must Be Unwavering or Risk Being Stricken
By: Lian Anthony, Esquire
Most legal scholars refer to the phrase “one bite at the apple” when discussing the “res judicata” doctrine in civil cases, or “double jeopardy” in criminal law. However, in a recently-decided Third District Court of Appeal case, the Court held the same general notion holds true for expert witnesses when providing sworn statements.
In Deshazior v. Safepoint Ins. Co., No.: 3D18-2414, the Court held there was no genuine issue of material fact the water damage in the homeowners’ bathroom was not covered pursuant to the “constant or repeated seepage” policy exclusion. The Court highlighted the insureds’ inability to proffer evidence that demonstrated there was a genuine issue of material fact the water damage was a sudden, accidental water discharge event due to the insureds’ expert witness’ contracting sworn testimony. In Deshazior, the Plaintiffs relied on their expert witness, a plumber, who testified at deposition that after reviewing the damage, he could not determine the length of time the leak had been active. However, approximately six month after giving this testimony, the plumber submitted an affidavit that contradicted his prior testimony and stated the insureds suffered a one-time event that caused a direct, physical loss to the property.
The trial court excluded Mr. Leyva’s affidavit at summary judgment and cited Lesnik v. Duval Ford, LLC, 185 So.2d 577, 580 (Fla. 1st DCA 2016) which explained “[t]he principle that a party defending a motion for summary judgment is entitled to all reasonable inferences in his or her favor ‘includes giving to the previous deposition any reasonable meaning which will not conflict with the subsequently filed affidavit.’” (emphasis added) It is unclear whether the documents and photographs Mr. Leyva reviewed prior to swearing to the affidavit testimony were available to him prior to the deposition, but this case serves as a stark reminder that expert witnesses, when noticed for deposition, should be clear and absolute as to their expert opinions because experts only get one bite at the apple to give their opinions.