Third District Applies Daubert Retroactively

Florida’s first appellate review under Daubert occurred in Perez v. Bell South Telecommunications, Inc., 39 Fla. L. Weekly D 685b (April 24, 2014). The Third District Court of Appeals became the first Florida appellate court to apply the Daubert standard to uphold a decision by a trial court, excluding an expert from testifying at trial. The trial court had reviewed the expert’s opinion under the Frye standard that was applicable at the time it was deciding the issue. However, the appellate court correctly stated in its opinion that the law governing the admissibility of an expert’s opinion in Florida was the Daubert standard, not the Frye standard since the legislature recently changed the law. As a result, the Third District Court of Appeals decided in Perez to apply the Daubert standard in lieu of the Frye standard, retroactively. Nonetheless, the appellate court affirmed the trial court’s exclusion of the plaintiff’s expert.

In Perez, the trial court struck the only medical expert testimony offered by the plaintiff, which attempted to link the premature birth of the infant plaintiff, which ultimately resulted in plaintiff undergoing surgery and suffering from developmental deficiencies, to the workplace stress of his mother. The plaintiff alleged that the mother’s employer was negligent in failing to limit the mother’s work hours to 40 hours a week and failing to allow frequent bathroom breaks while she was pregnant. The mother’s OB/GYN, Dr. Isidro Cardella, opined that the workplace stress was a causal agent of the premature birth with medical consequences.

However, the doctor admitted that he did not know for sure what caused the premature pregnancy and that his conclusions were based purely on his own personal opinion and not supported by any credible scientific research. The main support for his opinion was only the temporal relationship between the workplace stress suffered by the plaintiff’s mother and the premature birth.

The trial court struck Dr. Cardella’s opinion as inadmissible under the Frye standard, and a few months thereafter granted the defendant’s motion for summary judgment for failure of the plaintiff to proffer admissible evidence to prove causation. The plaintiffs appealed to the Third District saying that the testimony was admissible as pure opinion.

However, the appellate court noted that in 2013, the Florida legislature amended section 90.702 of the Florida Evidence Code to adopt standards for expert testimony in the courts of the state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) and has “reaffirmed and refined” by both General Electric v. Joiner, 522 U.S. 136 (1997), and Kuhmo Tire Co. Ltd. v. Carmichael 520 U.S. 137 (1999). In so doing, the legislature expressed its intent to “prohibit” pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007). The appellate court noted the amendment to the statute was designed to tighten the rules for admissibility of expert testimony in Florida. In addition, it found that the amendment indisputably applied retrospectively.

The appellate court noted that expert testimony in Florida now must be based on “scientific knowledge,” and in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. A touchstone of this scientific method is empirical testing – developing hypotheses and testing them through blind experiments to see if they can be verified. Dr. Cardella’s proposed testimony was inadmissible under Daubert as much as it was under Frye. Dr. Cardella had never before related a placental abruption to workplace stress and knew of no one else who had. The opinion he offered lacked a scientific basis and was “a classic example of the common fallacy of assuming causation from temporal sequence.”

This case does not provide a good contrast between Frye and Daubert because the expert testimony was clearly inadmissible either way. However, it is instructive since the Third District made it a point to apply the Daubert standard retroactively.

This blog post was published originally on June 2, 2014.