United States: Third DCA: Applying Daubert Under Florida Law In Perez v. Bell South Telecommunications, Inc.

Last Updated: May 21 2014
Article by Armando G. Hernandez

The Third District Court of Appeal of Florida recently issued an opinion in Perez v. Bell So. Telecomm., No. 3D11-445, 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014),which represents the Third District's first pronouncement applying Daubert under Florida law since the legislative amendment took effect on July 1, 2013, repudiating the archaic Frye standard and pure opinion testimony in favor of the more widely accepted Daubert standard.

The case involved a negligence suit brought by Osmany Anthony Perez, a minor, by and through his mother, Maria Franco Perez, against the mother's employer, Bell South Telecommunications, for the premature birth of the minor as a result of placental abruption, which the Plaintiff's expert opined was induced or caused by "work place stress." Id.at *4. 

By way of background, Ms. Perez became pregnant while employed as a call center operator. Id.at *3. Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, classified Ms. Perez's pregnancy as "high risk" on May 5, 2004. Id.   On July 30, 2004, Ms. Perez reported to Dr. Cardella being under a lot of stress at work. Id. Dr. Cardella provided Ms. Perez with a note to give to her employer placing a limitation of 40 hours on her work week and requesting frequent bathroom breaks due to the high risk nature of her pregnancy. Id. Less than two weeks later, Ms. Perez was fired for non-performance. Two days after her firing, she suffered a placental abruption and delivered her child at twenty weeks. Id.at *3-4. 

Dr. Cardella opined that "workplace stress," exacerbated by Bell South's alleged refusal to accommodate Ms. Perez's medical condition, was the causal agent of the placental abruption and premature delivery. Id.at *4. At his deposition, Dr. Cardella essentially testified and conceded there was no way of ever knowing for sure what caused the placental abruption, his conclusions were merely his own personal opinion, his opinion was unsupported by credible scientific research, there were no studies or medical literature regarding workplace stress tied to placental abruption, and he had never spoken on the topic and was not aware of anyone who had. Given the untested, unverified, hypothetical, speculative, conjectural, and ipse dixit nature of his opinions, the trial court excluded his opinions under Frye

Since Dr. Cardella's opinion testimony was the sole connection between the premature birth and Bell South, the trial court's exclusion of his opinion testimony under Frye was the basis for granting summary judgment due to a lack of causal proof as a matter of law and fact.  Id. at *6. Ms. Perez appealed the adverse summary judgment ruling contending that Dr. Cardella's testimony was admissible as "pure opinion testimony" under Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007). Following the Frye and summary judgment rulings, but prior to deciding the appeal, the Florida Evidence Code was amended on July 1, 2013.

The case presented an interesting procedural conundrum given the passing of the legislative amendment to Florida's Evidence Code after the trial of the underlying suit but before the appeal. Such a consideration was one of the many inquires practioners and judicial minds contemplated in the wake of the amendment. This case makes clear that Daubert applies to pending cases on appeal that were previously decided under Frye. It also clarifies the retroactive application of the amendment. Id.at *4 (holding that "section 90.702 of the Florida Evidence Code indisputably applies retrospectively"). 

The Third District found Dr. Cardella's opinion testimony inadmissible under both the Frye and Daubert standards. Chief Judge Shepherd writing for the panel (which included Judges Wells and Rothenberg) explained that Ms. Perez's contention on appeal regarding pure opinion testimony had been expressly prohibited in the recent amendment to the Florida Evidence Code. Id.at *8. The Florida Legislature went as far as making specific reference to the seminal pure opinion case of Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007) in the amendment. As of July 1, 2013, pure opinion testimony is no longer permissible in Florida courts. Id. All expert testimony must now satisfy the requirements of Daubert

Despite recognizing the conceptual debate over whether Frye or Daubert is stricter or more rigid, the Third District noted that "[t]he legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state." Id.at *10. To this end, the Third District explained that the "touchstone of the scientific method is empirical testing – developing hypotheses and testing them through blind experiments to see if they can be verified." Id.at *11. The court also discussed that "general acceptance in the scientific community," which were the buzzwords under Frye, is now simply one of several factors to consider under Daubert,but is in no event a sufficient basis in itself for admissibility. Id.at *12. Under Daubert, there is no place for "subjective belief and unsupported speculation."  Id. 

See also:

https://www.dadecountybar.org/wp-content/uploads/2014/05/May-Final.pdf

http://www.rumberger.com/?t=40&an=19966&format=xml&p=4946

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Armando G. Hernandez
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions