Application of Daubert v. Merrell Dow Pharmaceuticals, Inc. in Florida
Examples from orders on motions in limine
By F. Shields McManus
This article will present the second part of a basic review of Florida’s new rules governing the admissibility of expert testimony as well as give some examples of the application of the rules and offer some practice pointers.
AMENDMENT TO SECTION 90.702, FLORIDA STATUTES
In 2013, the Florida Legislature amended Section 90.702 of the Florida Evidence Code to adopt the standards for expert testimony as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert test applies not only to “new or novel” scientific evidence, but to all other expert opinion testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). The legislature specifically intends for trial judges to apply to all expert testimony principles which are in conformity with Daubert and Kumho Tire. The judge must be a gatekeeper to exclude evidence which is unreliable and may confuse or mislead the jury.
A key question to be answered in any Daubert inquiry is whether the proposed testimony qualifies as “scientific knowledge” as it is understood and applied in the field of science to aid the trier of fact with information that actually can be or has been tested within the scientific method. Id. “General acceptance” from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (the Frye test) can also have a bearing on the inquiry, as can error rates and whether the theory or technique has been subjected to peer review and publication. Daubert, at 593-594. However, “general acceptance in the scientific community” alone is no longer a sufficient basis for the admissibility of expert testimony. It is simply one factor among several.
Subjective belief and unsupported speculation are henceforth inadmissible. Id. at 590. Pure opinion testimony is prohibited. The Legislature expressed its intent to “prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007).” Ch. 2013-107, § 1, Laws of Fla. (2013) (Preamble to § 90.702). No longer will pure opinion or ipse dixit expert testimony be admissible as the Florida courts had allowed under the Frye test. Perez v. Bell South Telecommunications, Inc., 138 So.3d 492 (Fla. 3d DCA 2014).
CHANGES IN TRIAL PRACTICE
The focus of a hearing on a motion in limine will necessarily be less on the qualifications of the expert and more on the testimony of the expert. Daubert and its progeny, as well as the orders of Florida trial courts cited here, illustrate how the courts are to focus on the testimony and on the chain of logic it embodies, not just on the credentials of the proffered expert. The expert must articulate his or her reasoning to the trial court to be allowed to testify about the opinion to the jury. The witness must use understandable language, not technical jargon, to explain the facts on which he/she relied and the methodology used.
The Florida practitioner will experience more frequent and substantive challenges to offers of expert opinions than under the former expert witness rules. It is necessary to consider this at the start of the case and also to make changes whenever new issues come into focus. It is most critical that the witness be properly prepared. This includes providing extensive factual materials to the witness and discussing the methodology used in arriving at opinions and what the scientific foundations are for the opinion. If a motion in limine is filed to exclude an expert opinion, the party offering the opinion must present evidence to defend it. “The burden of laying a proper foundation for the admissibility of expert testimony is on the party offering the expert, and the admissibility must be shown by a preponderance of the evidence.” Hall v. United Ins. Co. of America, 367 F. 3d 1255, 1261 (11th Cir. 2004)); see also Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264, 1268 (Fla. 2003) (“The proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology.”) (Citing Murray v. State, 692 So. 2d 157, 161 (Fla. 1997)).
The lawyer must prepare the witness for the discovery deposition. Frequently, the most qualified experts are not the most qualified forensic witnesses. They must be reminded to be careful in their choice of words to use the right legal terminology. Their opinions must be “more likely than not” and “probable”, not “possible”, and never “speculation”. The witness cannot hide behind jargon but must explain it in layman’s terms. Often motions in limine will be based on the deposition. A qualified witness who gives a sloppy exposition of opinions will set the stage for exclusion of some or all opinions. Some cross examination of one’s one witness will be needed to show the opinions are not just the witness’s opinion but are based on scientific principles and methods which are applied to the facts of the case. The lawyer must prepare for the motion in limine with scientific literature which supports the expert’s opinions.
Conversely, when the opponent’s expert and the opinions are disclosed, the lawyer must do research and solicit help from experts. Questions can be prepared according to the four Daubert considerations: testing, peer review, error rates, and acceptability in the relevant scientific community. If the expert engaged in research, he or she should be asked if it was independent of the development of opinions for the case. The expert should be asked to disprove alternative explanations. He or she should be challenged about any extrapolation from an accepted premise to an unfounded conclusion. Questions should be asked to reveal unprofessional carelessness in review of the evidence. The deposition and research need to be done soon enough before trial to timely schedule motions in limine. See Booker v. Sumter County Sheriff’s Office/ North American Risk Services, __ So.3d__, 40 Fla. L. Weekly D1291, 2015WL3444359 (Fla. 1st DCA 2015) (affirming judge’s finding that an objection to a CME opinion was untimely when made four days before the final hearing).
EXPERT SELECTION
The selection of the expert must match the qualifications to the facts and issues of the case. This is particularly important in medical and engineering issues. An M.D. degree or a Ph.D. does not automatically qualify an expert’s opinion. The witness must have demonstrable credentials suitable to the particular issue. Thus, for example, an expert in biomechanics holding a medical degree who is not a treater may be able to testify on accident reconstruction but not be able to render an opinion on the cause of injury. Also the expert’s qualifications must be current to the applicable date of the event.
AN ABSTRACT OF TRIAL ORDERS
Accident Reconstruction
Cruz v. City of Tampa, 2014 WL 4473497 (13th Judicial Circuit, Hillsborough County, Fla., 2014)
This trial order gives a very good explanation of the Daubert standard and demonstrates how a motion in limine hearing is conducted. It is well worth reading.
Dr. Michael Freeman, a licensed chiropractor, Ph.D. in epidemiology, holding a Swedish doctorate in medical research, but never a practicing medical doctor, opined that plaintiff’s neck injuries were caused by low-speed rear-end collision. The opinion was excluded as an epidemiological opinion because it lacked explicit quantitative evaluation of all factors. It was excluded as a medical opinion because it did not address the physical examinations and x-rays of the plaintiff.
Andrews v. Crowell, 2014 WL 7778437 (7th Judicial Circuit, St. Johns County, Fla. 2014)
Dr. Michael Freeman’s opinions regarding the causation of plaintiff’s injuries as well as the probabilities that anyone would sustain a back injury from an accident this nature were excluded. His opinions regarding the speed of the defendant’s vehicle at the time of impact and the Plaintiff’s occupant kinematics were allowed. Dr. Freeman never examined the plaintiff and never read his deposition testimony. Dr. Freeman examined the plaintiff’s medical records. Dr. Freeman arrived at his opinion that plaintiff’s injuries were caused by the accident by attempting to apply a statistical analysis to the plaintiff’s injuries, consideration of the plaintiff’s preexisting conditions, plaintiff’s post-accident medical care, and the likelihood that anyone would sustain an injury from this type of accident. Dr. Freeman states that this is within the realm of epidemiology. He also bases his opinion on the temporal relation between the crash and the complaint of pain. The court rejected these reasons as unscientific.
Sterrett v. State Farm Mut. Auto. Ins. Co., 2015 WL 4977702 (15th Judicial Circuit, Palm Beach County, Fla., 2015)
Charles E “Ted” Bain, M.D., offered opinions on accident reconstruction, biomechanics, occupant kinematics, and injury causation. He had education, training and experience in emergency medicine and accident reconstruction. Based on Dr. Bain’s affidavits and deposition, the court found his opinions were admissible because they were based on the evidence of the crash and the medical records. He used a widely accepted simulation software developed to model vehicle collision impact scenarios. His report gave specific details of his methodology which utilized facts in the record. The claim that he used facts in dispute goes to the weight of the evidence, not to admissibility.
Godfrey v. Beck, 2014 WL 6075952 (18th Judicial Circuit, Seminole County, Fla., 2014)
David Gushue, Ph.D., a biomechanical engineer, did not inspect the vehicles but he was allowed to testify to general causation, testifying to the Delta V forces that occurred in the vehicular collision at issue and how a hypothetical person’s body would respond to that force. His comparison of the accelerations and forces experienced by motorist to everyday activities of daily living was admissible because it used values in peer-reviewed literature established through testing of persons and cadavers. Dr. Gushue could not give a specific opinion, however, as to whether the collision caused motorist’s specific injuries as he was not qualified to give medical opinion.
Construction
Warehouse 1050 Corp. v. Florida Sol Corp., 2014 WL 7715562 (11th Circuit Court, Miami-Dade County, Fla., 2014)
John Hosford, a certified roofing contractor, was offered to opine that a television cable was improperly installed, and this caused damage to the roof and the interior during a hurricane. The court excluded the testimony entirely. The witness inspected the roof 8 years after it was repaired and did not know the age of the roof and did not rule out that the damaged roof leaked for other reasons. He did not calculate wind speeds and wind resistance of the roof or explain how the lifting of the cable would effect the roof. He read a book about hurricane damage caused by different hurricanes. The court found that he did nothing more than what jurors would be doing: considering the testimony and the evidence.
Yampol v. Schindler Elevator Corp., 2014 WL 7337779 (11th Judicial Circuit, Miami-Dade County, Fla., 2014)
“In support of his claim, plaintiff seeks to call Dan Carey to testify and provide an opinion regarding the potential cause(s) of the noise vibrations emanating from the elevators into plaintiff’s apartment, as well as the manner(s) in which the noise and vibration may be mitigated, ameliorated and/or eliminated. Specifically, Mr. Carey’s deposition testimony and report provides that the direct bolt design of the subject elevators’ connection to the break and worm gear, if not properly aligned, can create vibration in the motor and machine that can transfer into the floor. Further, Mr. Carey opines that the isolation pads did not appear to have much of an isolation effect. In addition, Mr. Carey opines as to the manner in which the noise and vibration may be mitigated, ameliorated and/or eliminated.”
“Carey’s testimony is inadmissible under Fla. Stat. § 90.702 because Mr. Carey’s opinion as to potential causes of the alleged noise and vibration as well as ways in which the alleged noise and vibration may be mitigated (sic) ameliorated, or mitigated is based on his pure opinion, and not based on sufficient facts or data, let alone reliable principles or methods that were reliably applied to the facts of this case. Mr. Carey opined that the direct bolt design and isolation pads could cause the alleged noise and vibration plaintiff complains of and recommendations that could mitigate noise and vibration without the use or application of any tested formula or scientific basis.”
Gelland v. Bill, 2014 WL 662459 (15th Judicial Circuit, Palm Beach County, Fla., 2014)
James R. Ipser, Ph.D., testified that there should be signs in areas that have bicycle lanes adjacent to parking lanes to warn that opening car doors may hit bicyclists. Dr. Ipser also opined that the bicycle lane in question should be six (6) to seven (7) feet in width, rather than five (5) feet, in order to prevent accidents much like the one that brought about this litigation. Dr. Ipser’s opinions had not been peer reviewed, they were not generally accepted in the relevant community, and there was no literature to support his opinions. Dr. Ipser did not explain why Palm Beach County should have posted a non-existent, unapproved sign of that nature. He also did not provide reasoning or support why the bike lane should be six (6) or seven (7) feet wide, when it is only required by the FDOT to be five (5) feet wide. The Court found that these two opinions were not reliable and would assist the trier of fact.
Medical
Jensen v. Southern Baptist Hosp. of Florida Inc, 2013 WL 10124080 (4th Judicial Circuit, Duval County, Fla., 2013)
James Halperin, M.D., an orthopedic surgeon, performed a compulsory medical examination and reviewed medical records and depositions of witnesses and experts. He opined that the patient did not sustain an injury as a result of a venipuncture procedure, that she did not have, and never had Reflex Sympathetic Dystrophy (“RSD”), and that she was faking or has a psychological issue. The plaintiff’s motion in limine was denied. The court found Dr. Halperin had sufficient facts and data on which to base his testimony. While his opinion was based on experience the court found he was very qualified being not only an experienced hand surgeon but also Associate Director of a reflex sympathetic dystrophy clinic. The court cited U.S. v. Frazier, 387 F.3d 1244, 1260-61 (11th Cir. 2004); Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1201 (11th Cir. 2010) (“If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”). Dr. Halperin sufficiently explained how Mrs. Jensen’s symptoms were inconsistent with the symptoms which would have resulted if such an injury had occurred. Dr. Halperin’s criteria for RSD listed many of the same symptoms as the AMA Guidelines.
Freudberg v. Martin Memorial Medical Center, Inc., etc, et al. (19th Judicial Circuit, Martin County, Fla., 2015)
Dr. Frank Kevin Yoo, a board certified neurosurgeon, gave opinions in his discovery deposition that had the patient not been discharged in the morning and was she in the hospital when suffering a stroke in the cerebellum, her chances of survival would be better. He also opined that a CT scan in the morning would have revealed a stroke event. The court granted a motion in limine. The opinions were based on a review of the medical records including the report of the CT scan of the brain. Dr. Yoo did not read any depositions or view the image of the CT scan. He provided no reliable methodology for his conclusions. Dr. Yoo failed to make a differential diagnosis to rule out other alternative hypotheses. He said his opinions were based on his experience. He did not review any medical literature much less cite any as a basis of his opinion. This was “pure opinion” and speculative without support of any published studies.
In contrast, Gordon Sze, M.D., a professor of neuroradiology, did testify without objection that had a CT scan been done in the morning it would not have shown signs of a stroke. His opinion was based on his review of the CT scans done 12 and 24 hours later, as well as his review of the medical records, and the depositions of the patient’s husband, the treating doctors, paramedic, and nurses. He explained how the CT scans that were done showed different shades of black, grey and white which revealed an initial damage to brain tissue without bleeding overlaid by a white area indicating a recent bleed. He said this demonstrated that the diagnosis was first an ischemic stroke (a blockage not a bleed) which later started to hemorrhage when the blockage resolved. He correlated that to the patient’s lack of symptoms in the morning and sudden deterioration in the evening. He testified that on ischemic stroke would not be visible on a CT scan in the morning because it takes several hours for an infarct to the brain to develop enough to be seen on a CT scan. He ruled out other diagnoses.
Wallace Taylor v. Caroline R. Ervin, Case No. 312013CA000449 (19th Judicial Circuit, Indian River County, Fla., 2015)
Dr. Hany Abdel, a treating physician of plaintiff, board certified physician in internal medicine and a family practitioner, opined that plaintiff contracted an infection in his bloodstream due to defendant’s battery on the plaintiff and that the infection went to plaintiff’s previously implanted prosthetic hip, necessitating its removal and replacement. The Court excluded these opinions because they were not based on sufficient data or facts. Even assuming plaintiff had an infection, which was disputed, the court found that the witness had not considered alternative hypotheses for plaintiff’s condition and failed to rule out other potential causes. She did not review any of plaintiff’s medical records or any medical literature but rather relied upon her experience, the plaintiff’s anecdotal account of his illness, and temporal proximity of the battery to the onset of hip symptoms.
