The Internet: Outside the Record, or Not?

Oken et. al. v. Williams, 1D08-3398 is important both for what it holds, and how the court gets there. The court issued a writ of certiorari in this medical malpractice action because the Plaintiff's purported expert was not qualified to submit the presuit affidavit required by section 766.202(6).

How the court got there is even more interesting. It explored the issue of whether it is appropriate for the court to consult internet sources not cited by a party. In a three-page footnote, the majority explained:

No one can argue that indiscriminate, independent internet research by a judge involving subjective facts, non-legal opinions and studies, or the use of unknown or unverified websites not presented by the parties would create significant concerns. The use of generally-known knowledge, however, which is capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned, does not present the same concerns.

In a 12-page dissent, Judge Browning disagreed:

Because the majority opinion transgresses binding precedent of this Court and ignores persuasive non-binding, out-of-state precedent by relying on Internet information not contained in the case record and unknown to the parties; fails to follow relevant procedural precedent of substantial persuasive value; and injects the judiciary into adversarial territory heretofore untraveled, I am compelled to dissent.