Florida’s First Daubert Anniversary - Retroactive Power Revealed

By Ryan Thompson, Esq
If there are any Florida attorneys or litigants out there who have pending appeals that challenge the trial court’s exclusion of expert testimony, you may want to consider stopping by the courthouse and using the paper shredder.
A recent state appellate opinion has made it clear that any appeal that is old enough to have been decided under Florida’s old evidentiary laws will now be scrutinized under the new amendment enacted on July 1, 2013, which established the much stricter Daubert standard for allowing expert witness testimony. This will be done retrospectively, regardless of whether the underlying cause of action or the original trial occurred before July 1, 2013.
That means that any attorney or litigant who may have had an expert witness excluded based on what they believe was erroneous application of the Frye standard or the “pure opinion” doctrine – both of which could have allowed expert witness testimony to be admitted at trial in Florida – now have a much harsher doctrine and harder test to overcome.
In essence, if you can’t pass the Frye or “pure opinion” tests, then you certainly are less likely to pass Daubert.
The Ongoing Extinction of Frye
Next week will be the one-year anniversary of the day Daubert went into effect in Florida, making the Sunshine State the 41st state to follow the federal courts in rejecting the more-lenient  Frye standard, which was first established in 1923.
It has now been over 20 years since the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals in 1993, ruling that the Federal Rules of Evidence superseded Frye and laying out a detailed, five-prong test for the admissibility of expert testimony. The high court didn’t exactly reject Frye, it just incorporated it into the Daubert test as the fifth prong.
“The specific factors explicated by the Daubert court are (1) whether the expert's technique or theory can be or has been tested; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community. Avery Dennison Corp. v. Four Pillars Enterprise Co., 45 Fed.Appx. 479, 483 (6th Cir. Sept. 3, 2002).
That “general acceptance” prong is basically synonymous with Frye, essentially making any expert witness’ proposed testimony that fails Frye face an uphill battle against Daubert.
A Matter of Opinion?
In the instant case, Perez v. Bell South Telecommunications, Inc., the trial court ruled (pre-July 1, 2013) that the personal injury plaintiff’s expert was prohibited from offering testimony into evidence, because it failed the Frye test.
The plaintiff, suing on behalf of her infant son who was born pre-term and developmentally disabled, claimed that her former employer, Bell South Telecommunications, was negligent in creating a stressful work environment where Ms. Perez worked over 40 hours per week and wasn’t able to take enough bathroom breaks. Her doctor, gynecologist Dr. Isidro Cardella, testified as a proposed expert that, in his opinion, the stressful workplace did contribute and cause the placental abruption that led to the premature birth.
Dr. Cardella, however, admitted that he did not know for certain what had caused the placental abruption, that his opinion was not supported by any credible scientific research, and that there is no scientific technique or theory to be tested.  Thus, the trial court rejected Dr. Cardella’s testimony as inadmissible under Frye, because there were no scientific methods that were sufficiently established and generally accepted in the scientific community.
However, the plaintiff contended on appeal that Dr. Cardella’s testimony should not have been scrutinized under Frye, but instead should be admissible under the other avenue that allowed expert testimony under Florida law. This route was commonly referred to as the “pure opinion” doctrine.
“The second path to admissibility of expert testimony until recently was the ‘pure opinion’ path. Under this path, if the proposed testimony is not ‘new or novel,’ but instead is based upon the expert's personal experience, observation, and training, the Frye test does not apply to the ultimate opinion of an expert, so long as the methods used to reach the opinion were generally accepted scientific methods under Frye. Examples of expert testimony found admissible as ‘pure opinion’ include: testimony of a neurologist, based upon clinical experience alone, that the failure of physicians to perform a caesarian operation on a mother in labor caused brain damage to her child at birth, testimony of an ophthalmologist, based on experience and training, that the exposure of an eye to polychlorinated biphenyles (PCB's) causes cataracts, testimony of medical experts of recognized relationship or association between trauma and the onset of fibromyalgia, based on clinical experience,” the Florida Third District Court of Appeal explained.
However, unfortunately for Ms. Perez, all of this matter of opinion is moot. And whether or not Dr. Cardella’s proposed testimony would have (or should have) qualified as such and been admitted at trial is a decision the appeals court never made.
The Retroactive Power of Daubert
Quite simply, the court did not delve into the “pure opinion” analysis because both the Frye avenue and the “pure opinion” route to expert testimony admissibility are now invalid and inapplicable after Florida’s adoption of Daubert.
Despite the fact that Ms. Perez’s pregnancy, her son’s birth, and the original personal injury trial all took place prior to the state legislature’s enactment of the amendment to section 90.702 of the Florida Evidence Code, establishing the standards set forth in Daubert as the new test for expert testimony, the appeals court correctly chose to apply such retroactively.
The reason for the retrospective nature of the law’s application is also rooted in case law, going back to the Erie doctrine of 1938. In Erie R.R. Co. v. Tompkins, the U.S. Supreme Court ruled that when federal courts hear state diversity cases, state law will govern substantive issues and federal law will govern procedural issues. Based on this principle, the federal courts have ruled that federal law shall apply to the admissibility of expert testimony in diversity cases, making it clear that the courts interpret such to be a matter of procedural law not substantive law.
Therefore, laws concerning Frye, Daubert and expert witness testimony are procedural in nature, and procedural laws shall apply retrospectively, as well as to pending cases, while substantive laws will typically only apply prospectively. This application is based in both Florida precedent and statute:
“Statutes which are inherently procedural, such as those affecting only measure of damages or burden of proof, may be abrogated retroactively, even in the absence of clear legislative intent, under the rule that no one has a vested right in any given mode of procedure.”  48A Fla. Jur. Statutes, Section 110.
In conclusion, the Florida amendment to its Evidence Code is procedural in nature, and will therefore be applied retroactively to all pending cases. Any analysis of Frye or the “pure opinion” doctrine is now moot, despite when the facts or trial originally occurred. Daubert now rules all.
In its application of Daubert to the Perez case, the Florida Third District Court devoted little time to conduct its analysis, as Dr. Cardella’s failure to satisfy such standards seemed clear and obvious. Only in the final paragraph of its 12-page opinion did the court address such:
“Dr. Cardella's proposed testimony is inadmissible under Daubert. Dr. Cardella had never before related a placental abruption to workplace stress and knew of no one who had. There is no scientific support for his opinion. The opinion he proffers is a classic example of the common fallacy of assuming causality from temporal sequence. … We affirm the decision of the trial court.”
What if the trial judge had ruled that Dr. Cardella’s testimony was admissible under the “pure opinion” doctrine, which was still in effect at the time of trial, and it was the defendant who had appealed? Would the appeals court possibly have found a way to rule differently?  

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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