Choose a Topic

View Our Case Results
Kelley/Uustal Practice Areas

Osmany Anthony Perez, et al. v. Bell South Telecommunications, Inc., et al., Case No. 3D11-445

Perez is the first Florida appellate opinion to provide some insight as to Daubert standard as applied in Florida since the 2013 revisions to Fla. Stat. 90.702. The plaintiff, a minor, appealed an adverse summary judgment entered in a negligence case rendered after the trial court struck the plaintiff’s only medical expert testimony linking his premature birth, resulting surgeries and developmental deficits to workplace stress. The plaintiff brought suit against his mother’s employer for imposing stress upon while she was experiencing a high risk pregnancy, by failing to limit her work hours to forty hours per week and failing to allow frequent bathroom breaks. Limited work hours and frequent bathroom breaks had been recommended by the plaintiff’s mother’s obstetrician. The plaintiff’s mother was later terminated by the defendant employer for non-performance. Two days after the termination, the mother experienced a placental abruption and delivered the minor plaintiff twenty weeks early. In suit, the plaintiff’s medical expert opined in his deposition that workplace stress, exacerbated by the defendants failure to accommodate the plaintiff’s mother, caused the abruption and early delivery.

The expert, however, testified that there is no way to know for certain what caused the placental abruption. The expert testified that his conclusions were purely his own personal opinion, not supported by scientific research. The trial court struck the expert’s testimony under Florida’s former Frye analysis, and summary judgment was later entered in favor of the defense. The plaintiff argued on appeal that the expert’s testimony was admissible as “pure opinion” testimony under March v. Valyou, 977 So. 2d 543 (Fla. 2007).

Fla. Stat. 90.702 governs the admissibility of expert testimony. As the Third DCA noted, until recent changes in the law, there were two avenues for the admissibility of expert testimony. If the proposed expert testimony espoused a “new or novel” scientific theory, principle or discovery, then “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.” This analysis is known as the Frye test. If, however, 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. This is considered “pure opinion” expert testimony.

In 2013, however, the Florida Legislature amended Fla. Stat. 90.702 to adopt the Daubert standards of expert testimony, as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In doing so, the Florida Legislature expressed an intent to prohibit the use of pure opinion testimony as provided in March v. Valyou. These revisions to Fla. Stat. 90.702 went into effect on July 1, 2013.

The Perez court made several statements as to issues relating to Florida’s application of the Daubert standard, which had previously remained unanswered. First, the Perez court acknowledged that there exists a debate amongst various courts and commentators as to whether the Daubert standard of admissibility of expert testimony is more lenient or more strict than the Frye standard. The Perez court states that the Florida legislature has settled that debate for the courts of this state. The Perez court notes that Florida’s Daubert test applies to not only new or novel scientific evidence, but to all expert opinion testimony. In addition, pure opinion expert testimony is expressly prohibited. Based upon the foregoing, the Third DCA concludes that the legislature purpose of the new law is clear: “to tighten the rules of admissibility of expert testimony in the courts of this state.”

Second, the Third DCA states that “section 90.702 of the Florida Evidence Code indisputably applies retrospectively.” In a footnote, the Third DCA acknowledged that the Florida Supreme Court, not the Florida Legislature, is vested by the Florida Constitution with the right and obligation to adopt rules of practice and procedure for the courts of this state. The Third DCA did not further comment on the applicability of Daubert given that the amendments to Fla. Stat. 90.702 were made by the Legislature, not the Florida Supreme Court, other than to state that the Florida Supreme Court “periodically adopts all legislative changes to the Florida Evidence Code to the extent they are procedural,” and all references to the Frye test were stricken from the Florida Rules of Juvenile Procedure.

Third, the Perez court provided a very brief overview of its interpretation of Daubert. The Third DCA stated that under Daubert, “the subject of an expert’s testimony must be ‘scientific knowledge.’” To qualify as scientific knowledge, “an inference or assertion must be derived by the scientific method.” The Third DCA stated 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. “’[A] key question to be answered in any Daubert inquiry is either 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.” The Third DCA additionally acknowledged that general acceptance under the Frye analysis can have a bearing on the inquiry, as can error rates and whether the theory or technique has been subject to peer review and publication. The Third DCA concluded that the plaintiff’s expert’s proposed testimony was inadmissible under Daubert, given that the expert had never before related placental abruption to workplace stress, and knew of no one who had. Thus, the court found no scientific support of the expert’s opinion.

Perez is the first Florida appellate opinion to provide some insight as to Daubert standard as applied in Florida since the 2013 revisions to Fla. Stat. 90.702. The plaintiff, a minor, appealed an adverse summary judgment entered in a negligence case rendered after the trial court struck the plaintiff’s only medical expert testimony linking his premature birth, resulting surgeries and developmental deficits to workplace stress. The plaintiff brought suit against his mother’s employer for imposing stress upon while she was experiencing a high risk pregnancy, by failing to limit her work hours to forty hours per week and failing to allow frequent bathroom breaks. Limited work hours and frequent bathroom breaks had been recommended by the plaintiff’s mother’s obstetrician. The plaintiff’s mother was later terminated by the defendant employer for non-performance. Two days after the termination, the mother experienced a placental abruption and delivered the minor plaintiff twenty weeks early. In suit, the plaintiff’s medical expert opined in his deposition that workplace stress, exacerbated by the defendants failure to accommodate the plaintiff’s mother, caused the abruption and early delivery.

The expert, however, testified that there is no way to know for certain what caused the placental abruption. The expert testified that his conclusions were purely his own personal opinion, not supported by scientific research. The trial court struck the expert’s testimony under Florida’s former Frye analysis, and summary judgment was later entered in favor of the defense. The plaintiff argued on appeal that the expert’s testimony was admissible as “pure opinion” testimony under March v. Valyou, 977 So. 2d 543 (Fla. 2007).

Fla. Stat. 90.702 governs the admissibility of expert testimony. As the Third DCA noted, until recent changes in the law, there were two avenues for the admissibility of expert testimony. If the proposed expert testimony espoused a “new or novel” scientific theory, principle or discovery, then “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.” This analysis is known as the Frye test. If, however, 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. This is considered “pure opinion” expert testimony.

In 2013, however, the Florida Legislature amended Fla. Stat. 90.702 to adopt the Daubert standards of expert testimony, as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In doing so, the Florida Legislature expressed an intent to prohibit the use of pure opinion testimony as provided in March v. Valyou. These revisions to Fla. Stat. 90.702 went into effect on July 1, 2013.

The Perez court made several statements as to issues relating to Florida’s application of the Daubert standard, which had previously remained unanswered. First, the Perez court acknowledged that there exists a debate amongst various courts and commentators as to whether the Daubert standard of admissibility of expert testimony is more lenient or more strict than the Frye standard. The Perez court states that the Florida legislature has settled that debate for the courts of this state. The Perez court notes that Florida’s Daubert test applies to not only new or novel scientific evidence, but to all expert opinion testimony. In addition, pure opinion expert testimony is expressly prohibited. Based upon the foregoing, the Third DCA concludes that the legislature purpose of the new law is clear: “to tighten the rules of admissibility of expert testimony in the courts of this state.”

Second, the Third DCA states that “section 90.702 of the Florida Evidence Code indisputably applies retrospectively.” In a footnote, the Third DCA acknowledged that the Florida Supreme Court, not the Florida Legislature, is vested by the Florida Constitution with the right and obligation to adopt rules of practice and procedure for the courts of this state. The Third DCA did not further comment on the applicability of Daubert given that the amendments to Fla. Stat. 90.702 were made by the Legislature, not the Florida Supreme Court, other than to state that the Florida Supreme Court “periodically adopts all legislative changes to the Florida Evidence Code to the extent they are procedural,” and all references to the Frye test were stricken from the Florida Rules of Juvenile Procedure.

Third, the Perez court provided a very brief overview of its interpretation of Daubert. The Third DCA stated that under Daubert, “the subject of an expert’s testimony must be ‘scientific knowledge.’” To qualify as scientific knowledge, “an inference or assertion must be derived by the scientific method.” The Third DCA stated 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. “’[A] key question to be answered in any Daubert inquiry is either 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.” The Third DCA additionally acknowledged that general acceptance under the Frye analysis can have a bearing on the inquiry, as can error rates and whether the theory or technique has been subject to peer review and publication. The Third DCA concluded that the plaintiff’s expert’s proposed testimony was inadmissible under Daubert, given that the expert had never before related placental abruption to workplace stress, and knew of no one who had. Thus, the court found no scientific support of the expert’s opinion.

Recognized as One of the Nation's Best Law Firms

Don't just take our word for it. See it for yourself.

Client Reviews & Testimonials
  • AV Peer Review Rated
  • Florida Super Lawyers
  • South Florida Top Rated Lawyers
  • Best Law Firms
  • The Best Lawyers in America
  • The National Trial Lawyers - Top 100 Trial Lawyers
  • South Florida Business Journal - 2017  Best Places to Work
  • Sun Sentinel - 2017 Top Work Places
© 2014 All Rights Reserved The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.