In this case, the Estate, brought suit against a nursing home and alleged negligence, wrongful death, and that the Defendants violated Mr. Murray's nursing home residents' rights under §400.022, Fla. Stat. (2002). During the trial, Delta, introduced the deposition testimony of Dr. Desai. Although Dr. Desai had not been deemed an "expert witness," the Second District Court of Appeal concluded that he was an expert because the parties and the trial court considered and treated him as an expert. It further noted that a court is not required to make a finding that proffered testimony is expert testimony.

Dr. Desai's proffered testimony included his ultimate opinion that the nursing home had not acted negligently. The trial court permitted said testimony over the Estate's, objection after it concluded that an expert could testify as to an ultimate question. The Second District Court of Appeal reversed, and found that "an expert may render an opinion regarding an ultimate issue in a case, but he or she is not permitted to render an opinion that applies a legal standard to a set of facts." In other words, Delta could have offered Dr. Desai's opinion that the nursing home did not breach its standard of care, but not his opinion regarding whether the nursing home was negligent. Accordingly, the trial court abused its discretion.

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