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Enzo Rojas v. Yagmerys Rodriguez, Case No. 3D15-277 (Third DCA)

In Rojas, the plaintiff sought review of the trial court’s granting the defendant’s motion for a new trial. Because the defendant did not make a timely Daubert objection, the Third District reversed. The plaintiff was a passenger in a vehicle that was struck by the defendant’s vehicle. The defendant admitted liability and the case went to trial on the issue of whether the plaintiff’s herniated disc was caused by the accident. A neurosurgeon testified that the herniated disc was consistent with the twisting of the body that the plaintiff testified occurred when the vehicle spun after the impact. The defendant’s counsel objected to the neurosurgeon’s testimony on this point arguing that it was outside the physician’s scope of expertise, and that he was not an accident reconstructionist or biomechanical expert. The objection was overruled. The defendant moved for mistrial after the plaintiff rested arguing the same points, and the trial court denied the motion. The defendant renewed the motion before the jury returned. The jury returned a verdict for the plaintiff. After the jury returned the verdict, the defendant again renewed its motion, but did not raise a Daubert objection. The trial court asked the defendant to file a written motion, and in that motion, the defendant first raised Daubert. The trial court granted the motion for new trial, and specifically noted that the neurosurgeon’s testimony was inadmissible under Daubert.

On appeal, the Third District ruled that the defendant’s Daubert objection was not timely. “Under Florida law, exclusion of witness testimony is a drastic remedy that should be invoked only under the most compelling circumstances.” The Third District found that the defendant failed to make a Daubert objection or request a Daubert hearing prior to the conclusion of trial. This, the Third District found, was fatal to the defendant’s case, especially given that the defendant had known the neurosurgeon would be an expert over ten months prior to trial. Despite that disclosure, the defendant took no steps to discovery the basis of the neurosurgeon’s opinions. The Third District noted that given the trial court’s role as a gatekeeper in the Daubert context, it stands to reason that such an objection must be timely raised to allow the trial court to properly perform its role. Here, no timely Daubert objection was made, and no exceptional circumstances existed to merit consideration of the defendant’s untimely objection. Accordingly, the Third District reversed.

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