Perez v. Bell South Telecommunications, Inc., 2014 WL 1613654 (Fla. 3d DCA April 23, 2014)
A child who was born prematurely brought a negligence action, by and through his mother, against the mother’s former employer alleging that workplace stress and the employer’s failure to accommodate the mother’s medical condition led to the child’s premature birth and related health problems. The trial court struck the opinion of the mother’s treating physician who provided the only causal link between the mother’s alleged workplace stress and premature birth. Summary judgment was granted to the employer. The child appealed to Florida’s Third District Court of Appeal. The Court affirmed under the amended statute governing the admissibility of expert testimony.
During the pendency of the appeal, the Florida Legislature amended Florida’s Evidence Code to replace the Frye standard with federal Daubert standard governing the admissibility of expert testimony. This decision was the first by a Florida appellate court to provide an in-depth analysis of the legislative change in the standard from Frye to Daubert.
The Third District affirmed the trial court’s exclusion of the physician’s testimony under the amended version of section 90.702, Florida Statutes, finding the testimony inadmissible under the newly adopted Daubert standard.
The Third District provided an in-depth analysis of the evolution of the admissibility of expert testimony in Florida.
Prior to the amendment of section 90.702, the admissibility of expert testimony was governed by two standards. If the expert testimony espoused a “new or novel” scientific theory, principle or discovery, the Frye standard applied. Under this standard, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs. Second, if the proposed testimony was not “new or novel,” but instead was based on the expert’s personal experience, the Frye test would not apply to the ultimate opinion of the expert so long as the methods used to reach the opinion were generally accepted scientific methods under Frye.
The plaintiff argued that the physician’s “pure opinion” testimony was admissible as “pure opinion” testimony. The Third District noted that in amending Florida’s Evidence Code, the Legislature stated its intent to prohibit the admission of pure opinion testimony. Further, the Daubert standard should apply to govern the admission of all expert testimony. Under Daubert, subjective belief and unsupported speculation are inadmissible. General acceptance is just one factor of many that must be considered in determining the admissibility of expert testimony. The Third District found that the physician’s testimony was inadmissible because there was no scientific support for his opinion. Further, as the amendment to the Evidence Code was procedural, the new standard should apply retroactively.
This decision resolves any doubt that the Daubert standard should be applied retroactively and governs the admission of all expert testimony in Florida.