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IN THE SUPREME COURT OF FLORIDA OSMANY ANTONIO PEREZ, etc., et al., Petitioners, v. Case No. SC14-1029 L.T. No. 3D11-445 BELLSOUTH TELECOMMUNICATIONS, INC., etc., et al., Respondents. /
ON REVIEW FROM THE DISTRICT COURT OF APPEAL THIRD DISTRICT, STATE OF FLORIDA
PETITIONERS’ BRIEF ON JURISDICTION
ASSOULINE & BERLOWE, P.A. Peter E. Berlowe [email protected] 3250 Mary Street, Suite 100 Miami, Florida 33133-5232 (305) 567-5576 (305) 567-9343 facsimile THE LAW OFFICES OF ANTHONY & ASSOCIATES, P.A. Andrew J. Anthony [email protected] Bradley A. Silverman [email protected] 250 Catalonia Avenue, Suite 505 Coral Gables, Florida 33134-6730 (305) 444-8297 (305) 445-9908 facsimile
THE MILLS FIRM, P.A. John S. Mills [email protected] Andrew D. Manko [email protected] [email protected] (secondary) 203 N. Gadsden St., Suite 1A Tallahassee, Florida 32301 (850) 765-0897 (850) 270-2474 facsimile
Attorneys for Petitioners
Filing # 15458903 Electronically Filed 07/01/2014 04:14:05 PM
RECEIVED, 7/1/2014 16:18:39, John A. Tomasino, Clerk, Supreme Court
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TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF CITATIONS ......................................................................................... ii
STATEMENT OF THE CASE AND OF THE FACTS ........................................... 1
SUMMARY OF ARGUMENT ................................................................................. 4
ARGUMENT ............................................................................................................. 5
I. THIS COURT HAS JURISDICTION BECAUSE THE DECISION BELOW ADOPTING THE DAUBERT STANDARD FOR ADMISSIBILITY OF EXPERT TESTIMONY EXPRESSLY DECLARES A STATUTE VALID, EXPRESSLY CONSTRUES THE CONSTITUTION, INFRINGES ON THIS COURT’S EXCLUSIVE RULEMAKING AUTHORITY, AND EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL. .............. 5
II. THE IMPORTANCE OF THE ISSUE WARRANTS REVIEW. ........ 9
CONCLUSION ........................................................................................................ 10
CERTIFICATE OF SERVICE ................................................................................ 12
CERTIFICATE OF COMPLIANCE ....................................................................... 12
ii
TABLE OF CITATIONS
CASES
Amendments to Fla. R. Crim. P. 3.853(d)(1)(A) (Postconviction DNA Testing), 857 So. 2d 190 (Fla. 2003) .............................................................................. 7 Avila S. Condo. Ass’n, Inc. v. Kappa Corp., 347 So. 2d 599 (Fla. 1977) .............................................................................. 5 Brim v. State, 695 So. 2d 268 (Fla. 1997) .............................................................................. 9 City Nat’l Bank v. Tescher, 578 So. 2d 701 (Fla. 1991) .............................................................................. 6 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)......................................................................................... 3 Flanagan v. State, 625 So. 2d 827 (Fla. 1993) .............................................................................. 9 Foster v. State, 613 So. 2d 454 (Fla. 1993) .............................................................................. 6 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ................................................................... 1, 4, 9 Gelsthorpe v. Weinstein, 897 So. 2d 504 (Fla. 2d DCA 2005) ................................................................ 9 Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730 (Fla. 1991) .............................................................................. 6 Ibar v. State, 938 So. 2d 451 (Fla. 2006) .............................................................................. 9 In re Amendments to the Fla. Evid. Code, 782 So. 2d 339 (Fla. 2000) ........................................................................ 9, 10
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In re Amendments to Fla. Evid. Code, No. SC13-98, 2013 WL 6500888 (Fla. Dec. 12, 2013) .................................. 8 Jackson v. Fla. Dep’t of Corr., 790 So. 2d 381 (Fla. 2000) .............................................................................. 7 Lamm v. Chapman, 413 So. 2d 749 (Fla. 1982) .............................................................................. 9 Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007) ...................................................................... 2, 3, 9 Massey v. David, 979 So. 2d 931 (Fla. 2008) .............................................................................. 7 Melbourne v. State, 679 So. 2d 759 (Fla. 1996) .............................................................................. 6 State v. Raymond, 906 So. 2d 1045 (Fla. 2005) ............................................................................ 6 State Farm Mut. Auto. Ins. Co. v. Johnson, 880 So. 2d 721 (Fla. 2d DCA 2004) ................................................................ 9 The League of Women Voters of Fla. v. Data Targeting, Inc., No. SC14-987, 2014 WL 2186202 (Fla. May 27, 2014)................................ 7 United Servs. Auto Ass’n v. Goodman, 826 So. 2d 914 (Fla. 2002) .............................................................................. 7 Windom v. State, 656 So. 2d 432 (Fla. 1995) .............................................................................. 6
STATUTES, CONSTITUTIONAL PROVISIONS, AND RULES OF COURT
§ 90.702, Fla. Stat. ......................................................................................... 1, 3, 4, 5 Art. V, § 2(a), Fla. Const. .............................................................................. 3, 4, 6, 7
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Art. V, § 3(b)(3), Fla. Const ................................................................................... 5, 6 Art. V, § 3(b)(7), Fla. Const ....................................................................................... 7
SECONDARY SOURCES
Harry Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431 (2005) ............................ 5, 6
STATEMENT OF THE CASE AND OF THE FACTS
The Petitioners seek review of a decision from the Third District that (1)
expressly declared that, “[o]n July 1, 2013, the[] revisions to section 90.702 went
into effect, changing Florida from a Frye jurisdiction to a Daubert jurisdiction,”
which upheld the validity of a statute that dramatically changed a core rule of court
procedure governing the admissibility of expert testimony despite its recognition
that only this Court has the authority to change the rule and (2) alternatively held
that the subject expert’s expression of pure opinion would be inadmissible under
the Frye1 test even though it recognized that this Court has held that Frye does not
apply to such opinions. (App. 2, 6-8.) Petitioners invoke this Court’s jurisdiction
because the decision expressly declares the statute valid, expressly construes the
constitution, infringes on this Court’s exclusive rulemaking authority, and
expressly and directly conflicts with decisions of this Court and other district
courts of appeal.
Petitioner Maria Franco-Perez, proceeding both individually and on behalf
of her son, Petitioner Osmany Antonio Perez, sued Respondent Bell South
Telecommunications, Inc., and its employees, Respondents Luisa Ramos, Gigi
Zelaya, Steve Castellar, and Franco Castellani, for negligence. (App. 1-2.) Maria,
who had worked at Bell South while pregnant, claimed that the defendants
1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
2
negligently refused to accommodate her medical needs, which caused workplace
stress that, in turn, caused a placental abruption and the premature birth of
Osmany. (App. 2-4.) As a result, Osmany has undergone multiple surgeries and
suffers developmental deficits. (App. 2.)
Maria’s board-certified obstetrician and gynecologist, Dr. Isidro Cardella,
testified in his deposition “that workplace stress, exacerbated by Bell South’s
alleged refusal to accommodate Ms. Perez’s medical condition, was the causal
agent of the abruption and early delivery of her son with medical consequences,”
which was based on his twenty-one years of experience as a treating physician and
professor at the University of Miami medical school and Maria’s delivery of a
second child while she was not working. (App. 3-4 & 4-5 n.6.) The trial court
struck his pure opinion as inadmissible under the Frye test and subsequently
granted summary judgment for the defense because this ruling left Maria with no
evidence on causation. (App. 2, 4-6.) On appeal, the district court concluded that it
should affirm under either the “older ‘Frye test’ ” or the “more recently
promulgated ‘Daubert test.’ ” (App. 2.)
Maria had argued that Dr. Cardella’s testimony was admissible as “pure
opinion” under this Court’s holding in Marsh v. Valyou, 977 So. 2d 543 (Fla.
2007). (App. 6.) The district court acknowledged that under Marsh, the Frye test
does not apply to expert testimony that “is not ‘new or novel,’ but instead is based
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upon the expert’s personal experience, observation, and training.” (App. 7.) It also
recognized that Dr. Cardella had made clear that “his conclusions were purely his
own personal opinion, not supported by any credible scientific research.” (App. 4.)
And it noted several other opinions applying this test to uphold the admissibility of
physicians’ causation opinions based on their experience. (App. 7.)
The district court went on, however, to note that since the trial court’s ruling,
the Legislature had amended section 90.702 to adopt the test for admissibility of
expert testimony provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), “changing Florida from a Frye jurisdiction to a Daubert
jurisdiction,” and to prohibit courts from admitting pure opinion testimony under
Marsh. (App. 8.) The district court concluded that the legislative amendment
“indisputably applies retrospectively” even though it was enacted after the appeal
was filed because the amendment was purely procedural and not substantive. (App.
9-10.) The district court recognized that the Legislature had no constitutional
authority to amend the rule, but took “comfort” in the “fact” that this Court
sometimes adopts legislative amendments to the evidence code and had already
amended a rule of juvenile procedure in light of the amendment:
We recognize 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. Article V, § 2(a), Fla. Const. We take comfort here in the fact that the Florida Supreme Court periodically adopts all legislative changes to the Florida Evidence Code to the extent they are
4
procedural, and has already stricken all references to the Frye test from the Florida Rules of Juvenile Procedure and adopted the amendments to section 90.702.
(App. 10-11 n.12 (citations omitted).)
Finding that the legislative amendment to section 90.702 precluded pure
opinion testimony and applying the Daubert test to Dr. Cardella’s methodology,
the district court affirmed the defense judgment. (App. 11-12.) Maria timely
invoked this Court’s jurisdiction.
SUMMARY OF ARGUMENT
This Court has jurisdiction because the Third District expressly held that the
Daubert statute changed Florida “to a Daubert jurisdiction” and validly applied
retroactively to this case, not to mention that it expressly construed article V,
section 2(a), Florida Constitution, in a novel way when it discussed why such a
decision was proper despite this Court’s exclusive authority over court procedure.
This Court also has all writs jurisdiction to protect its exclusive authority over such
court procedure. The decision below also expressly and directly conflicts not only
with this Court’s decisions invalidating procedural statutes, but also this Court’s
long-standing precedent refusing to adopt Daubert as the standard of expert
testimony in Florida. Even the alternative holding that the trial court’s decision
could be affirmed under Frye expressly and directly conflicts with decisions from
this Court and other district courts that Frye does not preclude physicians from
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testifying, based on their experience, as to their pure opinions on causation. Given
the state-wide impact and unquestionable importance of this issue to pending and
future cases, this Court should exercise its discretion to review the decision.
ARGUMENT
I. THIS COURT HAS JURISDICTION BECAUSE THE DECISION BELOW ADOPTING THE DAUBERT STANDARD FOR ADMISSIBILITY OF EXPERT TESTIMONY EXPRESSLY DECLARES A STATUTE VALID, EXPRESSLY CONSTRUES THE CONSTITUTION, INFRINGES ON THIS COURT’S EXCLUSIVE RULEMAKING AUTHORITY, AND EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL.
The decision below expressly declares the Daubert statute valid, art. V,
§ 3(b)(3), Fla. Const., stating that, “[o]n July 1, 2013, the[] revisions to section
90.702 went into effect, changing Florida from a Frye jurisdiction to a Daubert
jurisdiction.” (App. 8.) This Court has jurisdiction if the decision below contains
“some statement to the effect that a specified statute is valid or enforceable,” Harry
Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of
Florida, 29 Nova L. Rev. 431, 503 (2005), which includes decisions as to whether
statutes can be applied retroactively. Avila S. Condo. Ass’n, Inc. v. Kappa Corp.,
347 So. 2d 599, 601 (Fla. 1977). Here, the decision below expressly stated that the
statute changed Florida “to a Daubert jurisdiction” and concluded that the
provision “indisputably applies retrospectively,” citing precedent from this Court
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in which it found retroactive application of a procedural statute to be constitutional.
(App. 2, 8-10 (citing Windom v. State, 656 So. 2d 432 (Fla. 1995).)
Additionally, the decision below expressly construes article V, section 2(a)
of the Florida Constitution, and does so in a way that directly conflicts with this
Court’s precedent. Art. V, § 3(b)(3), Fla. Const.; see Anstead, supra at 5, 29 Nova
L. Rev. at 502-03 (explaining how jurisdiction exists if district court explains or
amplifies the constitution or misapplies earlier law in doing so). The construction
should be express, but it need not be lengthy or the crux of the decision. Melbourne
v. State, 679 So. 2d 759, 762 (Fla. 1996); Foster v. State, 613 So. 2d 454, 454 (Fla.
1993); City Nat’l Bank v. Tescher, 578 So. 2d 701, 702 (Fla. 1991).
In construing article V, section 2(a), this Court has made clear that it − and
only it − has exclusive authority to adopt court rules and that any “statute which
purports to create or modify a procedural rule of court is constitutionally infirm.”
State v. Raymond, 906 So. 2d 1045, 1048 (Fla. 2005); accord Haven Fed. Sav. &
Loan Ass'n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991). The district court simply has
no authority to validate a procedural statute; it must find it unconstitutional and
allow this Court to exercise its exclusive authority over the issue.
Here, the Third District expressly construed article V, section 2(a), correctly
recognizing that this Court, “not the Florida Legislature, is vested by the Florida
Constitution with the right and obligation to adopt rules of practice and procedure,”
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but nevertheless validating the procedural statute because it believed this Court
was likely to do so at some point in the future. (App. 10-11 n.12.) That
construction of article V, section 2(a) is the exact type of misapplication of a
settled constitutional principle that warrants review on this basis. Indeed, by
enforcing a procedural statute that conflicts with existing rules, the decision below
expressly and directly conflicts with a number of decisions from this Court. E.g.,
Massey v. David, 979 So. 2d 931, 937 (Fla. 2008); Jackson v. Fla. Dep’t of Corr.,
790 So. 2d 381, 385 (Fla. 2000); Kirian, 579 So. 2d at 732.
This Court also has all writs jurisdiction to review the decision below in
order to protect its exclusive authority to adopt rules of court procedure. Art. V,
§ 2(a) & 3(b)(7), Fla. Const.; see, e.g., United Servs. Auto Ass’n v. Goodman, 826
So. 2d 914, 915 (Fla. 2002) (issuing all writs to quash trial court order that
“encroach[ed] upon this Court’s ultimate jurisdiction to adopt rules for the courts
[under] article V, section 2(a)”). Importantly, all writs may be used as a means of
“protecting jurisdiction that likely will be invoked in the future.” The League of
Women Voters of Fla. v. Data Targeting, Inc., No. SC14-987, 2014 WL 2186202,
at *3 (Fla. May 27, 2014); see also Amendments to Fla. R. Crim. P. 3.853(d)(1)(A)
(Postconviction DNA Testing), 857 So. 2d 190, 190-92 (Fla. 2003) (exercising all
writs jurisdiction to stay criminal statute while considering if it had jurisdiction to
avoid proceedings being rendered moot if statute were ruled unconstitutional).
8
Only this Court can decide whether to ratify the legislative attempted
amendment of the Florida Evidence Code, and the district court had no authority to
just assume that this Court will eventually do that. The Petitioners do not purport to
be able to predict this Court’s decision in this regard, but the district court’s
“comfort here in the fact that the Florida Supreme Court periodically adopts all
legislative changes to the Florida Evidence Code to the extent they are procedural”
provides no justification for its holding.
Not only was this an attempt to usurp this Court’s authority, but it is based
on a faulty premise. At the time of the district court’s decision, The Florida Bar
Code and Rules of Evidence Committee (the “Evidence Committee”) had not even
voted whether to recommend that the Court adopt the legislative amendment.2
More importantly, the district court was just wrong. This Court has declined to
rubber stamp several legislative attempts to amend the evidence code. See In re
Amendments To Fla. Evid. Code, No. SC13-98, 2013 WL 6500888 (Fla. Dec. 12,
2013) (rejecting three categories of amendments to evidence code that were
recommended by the Evidence Committee, including a requirement for out-of-state
expert witnesses in medical malpractice cases to obtain an expert witness
2 As documented on pages 8-10 of the all writs petition in Case No.
SC14-1021, the Evidence Committee was sharply divided when it took an initial straw poll and planned to have a final vote at its June 2014 meeting, and the Board of Governors will still have to consider the issue.
9
certificate); In re Amendments to the Fla. Evid. Code, 782 So. 2d 339 (Fla. 2000)
(agreeing with Evidence Committee’s recommendation not to approve amendment
to evidence code regarding hearsay exceptions).
The fallacy of the district court’s premise is further supported – and this
Court’s conflict jurisdiction further implicated – by this Court’s repeated and
express refusal to adopt the Daubert standard in Florida. Marsh, 977 So. 2d at 546-
47; Ibar v. State, 938 So. 2d 451, 467 (Fla. 2006); Brim v. State, 695 So. 2d 268,
275 (Fla. 1997); Flanagan v. State, 625 So. 2d 827, 829 n. 2 (Fla. 1993).
The decision’s alternative holding that affirmance would be required under
Frye also expressly and directly conflicts with the very cases it cites from this
Court and other district courts of appeal that make clear that a physician’s pure
opinion on causation based on experience is admissible without regard to the Frye
test. Marsh, 977 So. 2d at 548-49; Gelsthorpe v. Weinstein, 897 So. 2d 504, 510
(Fla. 2d DCA 2005); State Farm Mut. Auto. Ins. Co. v. Johnson, 880 So. 2d 721,
722–23 (Fla. 2d DCA 2004).3
II. THE IMPORTANCE OF THE ISSUE WARRANTS REVIEW.
There can be no reasonable question that the governing standard of the
admissibility of expert testimony is sufficiently important as to warrant this Court’s
3 Even if the alternative holding provided no basis for conflict, this Court has exercised its conflict jurisdiction before to review an alternative holding of state-wide importance even where there is no conflict on the other alternative holdings. Lamm v. Chapman, 413 So. 2d 749, 751 (Fla. 1982).
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review. As a review of the conflict cases discussed above makes clear, the
admissibility of expert testimony is a hotly contested issue in all kinds of cases in
Florida, civil and criminal. Whether Florida should jettison years of precedent and
this Court’s steadfast refusal to adopt the federal Daubert standard is among the
most far-reaching and controversial issues this Court is likely to encounter.
While this Court will certainly have the opportunity to address the issue
when the Evidence Committee and Board of Governors ultimately make their
recommendation and also has a pending all writs petition challenging the same
decision, this case presents the best vehicle for resolving the issue. The stakes here
are not hypothetical – the issue is dispositive as to whether Ms. Perez will ever
have her day in court to seek compensation for the substantial injuries suffered by
her and her son. This Court has made clear that it prefers an actual case and
controversy to resolve a question about the constitutionality of an amendment to
the Florida Evidence Code. See, e.g., In re Amendments to the Fla. Evid. Code, 782
So. 2d 339 (Fla. 2000) (noting court had grave concerns about its constitutionality,
but would wait until actual case and controversy to rule on that issue). This case
unquestionably presents the Court with that opportunity.
CONCLUSION
For the foregoing reasons, this Court should grant the petition for review.
11
ASSOULINE & BERLOWE, P.A. Peter E. Berlowe Florida Bar No. 143650 [email protected] 3250 Mary Street, Suite 100 Miami, Florida 33133-5232 (305) 567-5576 (305) 567-9343 facsimile THE LAW OFFICES OF ANTHONY & ASSOCIATES, P.A. Andrew J. Anthony Florida Bar No. 226319 [email protected] Bradley A. Silverman Florida Bar No. 105333 [email protected] 250 Catalonia Avenue, Suite 505 Coral Gables, Florida 33134-6730 (305) 444-8297 (305) 445-9908 facsimile
Respectfully submitted, THE MILLS FIRM, P.A. /s/ Andrew D. Manko John S. Mills Florida Bar No. 0107719 [email protected] Andrew D. Manko Florida Bar No. 018853 [email protected] [email protected] (secondary) 203 N. Gadsden St., Suite 1A Tallahassee, Florida 32301 (850) 765-0897 (850) 270-2474 facsimile
Attorneys for Petitioners
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following persons by email on this 1st day of July, 2014:
Carol A. Gart [email protected] [email protected] Carol A. Gart, P.A. P.O. Box 810221 Boca Raton, FL 33481-0221 (561) 961-0052 (561) 998-9869 facsimile Counsel for Respondents Mark R. Boyd [email protected] Scott A. Markowitz [email protected] DeMahy, Labrador, Drake, Victor, Payne & Cabeza 6400 N. Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33309-9112 (954) 229-9951 (954) 229-9778 facsimile Co-counsel for Respondents
Mary M. Schneider [email protected] DeMahy, Labrador, Drake, Victor, Payne & Cabeza 150 Alhambra Circle Ph Coral Gables, Florida 33134-4505 (305) 443-4850 (305) 443-5960 facsimile Co-counsel for Respondents
/s/ Andrew D. Manko Attorney
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief is in Times New Roman 14-point font and complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Appellate Procedure.
/s/ Andrew D. Manko Attorney
APPENDIX INDEX
Perez v. Bell South Tellecoms, Inc., No. 3D11-445, 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014) .................. 1
Third District Court of AppealState of Florida
Opinion filed April 23, 2014.Not final until disposition of timely filed motion for rehearing.
________________
No. 3D11-445Lower Tribunal No. 06-18693
________________
Osmany Anthony Perez, etc., et al.,Appellants,
vs.
Bell South Telecommunications, Inc., etc., et al.,Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Victoria S. Sigler, Judge.
Assouline & Berlowe and Peter E. Berlowe; The Law Offices of Anthony & Associates and Bradley A. Silverman, for appellants.
Mark R. Boyd, Scott A. Markowitz, and Mary M. Schneider (Fort Lauderdale), for appellees.
Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
SHEPHERD, C.J.
App. 1
Osmany Anthony Perez, a minor, by and through his mother and next friend,
Maria Franco Perez, appeals an adverse summary judgment in a negligence case
rendered after the trial court struck the only medical expert testimony linking his
premature birth, resulting surgeries, and developmental deficits to workplace
stress. The workplace stress arose from the alleged failure of Maria’s employer,
Bell South Telecommunications, Inc., to limit her work hours to forty hours a week
and allow frequent bathroom breaks. The trial court found the testimony to be
inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since
then, the Florida Legislature has amended the Florida Evidence Code to employ
the United States Supreme Court’s more recently promulgated “Daubert test,”1 to
gauge the admissibility of expert testimony in the stead of the older “Frye test.”
After obtaining supplemental briefing from the parties on the applicability of the
Daubert test to the facts of this case, we find affirmance would be in order under
either the former or more recently adopted statutory test.2 A brief summary of the
factual and procedural background of the case is necessary to explain our decision.
Factual and Procedural History
1 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).2 See Mortimer v. State, 100 So. 3d 99, 104 (Fla. 2d DCA 2012) (finding a remand unnecessary where trial court under a newly adopted procedural statute would reach the same result).
2App. 2
Maria Franco Perez became pregnant with her first child, Osmany Anthony
Perez, while employed as a call center operator by appellee, Bell South. She was
twenty-six years old at the time, and her treating physician, Dr. Isidro Cardella, a
board-certified obstetrician and gynecologist, classified Ms. Perez’s pregnancy as
“high risk” at the time of her first visit to his office on May 5, 2004. The visit
concluded with Dr. Cardella recommending a week of bed rest, owing to Ms.
Perez’s report of vaginal spotting.
Ms. Perez’s prior medical history indicated several conditions and
procedures which contributed to her high-risk pregnancy. In the years before, she
had undergone gastric surgery due to obesity, which included the placement of
gastric bands around her stomach to reduce intake. Despite the gastric surgery,
Ms. Perez remained obese. Additionally, Ms. Perez had suffered two herniated
discs, had back surgery, and had her gall bladder removed prior to her pregnancy
with Osmany Perez.
At Ms. Perez’s office visit on July 30, 2004, Ms. Perez reported being “put[]
under a lot of stress” at work. Dr. Cardella gave her a note for her employer
stating “Patient can only work a max of 40 hours a week due to high risk
pregnancy” and “[p]lease allow frequent bathroom breaks.” On August 11, 2004,
Ms. Perez was fired for non-performance. Two days later, on August 13, 2004,
Ms. Perez suffered a placental abruption3 and delivered her child, Osmany
3App. 3
Anthony, twenty weeks early. Dr. Cardella opined in his deposition that
workplace stress, exacerbated by Bell South’s alleged refusal to accommodate Ms.
Perez’s medical condition, was the causal agent of the abruption and early delivery
of her son with medical consequences.4, 5 Dr. Cardella’s testimony is the only
testimony linking Osmany’s premature birth to Bell South.
However, Dr. Cardella testified there was no way of ever knowing for sure
what caused Maria’s placental abruption.6 In fact, Dr. Cardella testified that his
conclusions were purely his own personal opinion, not supported by any credible
scientific research:
3 In a placental abruption, the placenta breaks away prematurely from the uterine wall depriving the baby of nourishment and oxygen. 4 Appellants do not assert a claim for relief based upon Ms. Perez’s termination of employment by Bell South, or that the termination contributed to the premature delivery of Osmany. 5 By separate order, the trial court held that Ms. Perez’s individual claim would be limited to derivative damages by virtue of worker’s compensation immunity. Our disposition of this case makes it unnecessary to consider this limitation. 6 He testified as follows during inquiry by defense counsel:
Q. So there’s really no way of ever knowing what caused this condition to occur in Maria, correct?Mr. Anthony: Objection to the form.The Witness: No, but I’ll tell you what. If you compare this pregnancy – Q. No, I was not correct, or no, I was – A. No, you are correct. But I will tell you this, if I can add to that. It’s interesting that this pregnancy, when she was working, she made it to 25 or four or seven weeks with placental abruption.
(emphasis added).
4App. 4
Q. Have there been any studies that you’re aware of that have shown stress to be a factor in determining the likelihood of a placental abruption?A. Studies, no, but I have my opinion about that.Q. All right, and we’ve talked about that.A. Correct.Q. My question is have there been any, do you know of any studies that have shown a connection between stress and placental abruption?A. No, sir.Q. Do you know of any medical literature that shows a correlation between stress and placental abruption?A. No, sir. Q. Do you know of any individual in your field that has spoken at a medical meeting or society or convention and has stated that stress causes placental abruption?A. No, sir. Q. You taught at the University of Miami?A. Yes, sir. I did.Q. Medical school?A. During the residency program I was an attending physician and I taught the residents. Once in awhile [sic] we’d give a lecture to the medical students.Q. Okay. So the teaching you did was to?A. Residents.Q. Fellow residents?A. No, no, no. I had already graduated and I was the attending physician.Q. When you were giving those talks, did you ever give a talk where you said there’s a correlation between stress and placental abruption?A. No, sir.Q. Have you ever heard of anybody making that statement?A. I don’t recall.Q. Okay. You said you have an opinion?A. Yes, sir.Q. What is your opinion? This is your personal opinion?A. Yes, sir. It is; after 21 years of practice, absolutely. If stress can cause a cardiac arrest, causing your blood pressure to go up, to go high, I’m sure there may very well be a correlation between placental abruption and stress.
(emphasis added).7
7 Dr. Cardella admitted that there are, in fact, known causes of placental abruption in the literature. These include cocaine abuse, smoking, hypertension, advanced
5App. 5
When asked to explain the basis of his opinion in this case, the only rationale
Dr. Cardella could muster was that Ms. Perez worked during her first pregnancy,
but did not work during the pregnancy leading to the birth of her second child on
October 26, 2007.8 This analysis, argue the appellants, comprises an admissible
differential diagnosis supporting Dr. Cardella’s workplace stress theory of
placental abruption.
The trial court disagreed. It struck Dr. Cardella’s opinion as inadmissible
under Frye. A few months thereafter, the trial court granted Bell South’s motion
for summary judgment for failure of the plaintiff to proffer admissible evidence to
prove causation. Ms. Perez asserts on appeal that the testimony is admissible as
“pure opinion” testimony under Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007).
Analysis
The admissibility of expert testimony in this state is governed by section
90.702 of the Florida Evidence Code. Until recently, there were two avenues
under this rule to the admissibility of expert testimony under Florida law. First, if
maternal age, multiparity (someone who has had more than one child), placentation (placement of the placenta), uterine fibroids, and, of course, physical trauma such as spousal abuse. Workplace stress is not recognized in the field of medical science as one of the recognized causes of placental abruption. 8 Ms. Perez’s second pregnancy was by no means a perfect comparator. By the time of her second pregnancy, she had contracted a sexually transmitted disease; she had vaginal bleeding with signs of a miscarriage at six and a half weeks; she suffered an infectious disease during the course of the pregnancy, probably food poisoning; and she remained obese – approximately 245 pounds.
6App. 6
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.” See Marsh, 977 So. 2d at 546 (quoting Frye, 293 F. at 1014) (emphasis
added). This path to admissibility is commonly known as the “Frye test.” In Frye,
the “thing” the D.C. Circuit found to lack “general acceptance” in its field was the
result of a “systolic blood pressure deception test,” an early polygraph. Id.
The second path to admissibility of expert testimony until recently was the
“pure opinion” path. Under this path, if 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. See Marsh, 977 So. 2d at 548-49. Examples of expert
testimony found admissible as “pure opinion” include: testimony of a neurologist,
based upon clinical experience alone, that the failure of physicians to perform a
caesarian operation on a mother in labor caused brain damage to her child at birth,
Gelsthorpe v. Weinstein, 897 So. 2d 504, 510 (Fla. 2d DCA 2005); testimony of an
ophthalmologist, based on experience and training, that the exposure of an eye to
polychlorinated biphenyles (PCB’s) causes cataracts, Florida Power & Light Co. v.
Tursi, 729 So. 2d 995, 996-97 (Fla. 4th DCA 1999); testimony of medical experts
7App. 7
of recognized relationship or association between trauma and the onset of
fibromyalgia, based on clinical experience, State Farm Mut. Auto. Ins. Co. v.
Johnson, 880 So. 2d 721, 722-23 (Fla. 2d DCA 2004); see generally 24A Fla. Jur.
Evidence, § 1104.9
In 2013, the Florida legislature amended section 90.702 of the Florida
Evidence Code “to adopt the standards for expert testimony in the courts of this
state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993)” and as “reaffirmed and refined” by both General Electric Co. v. Joiner,
522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999). Ch. 2013-107, § 1, Laws of Fla. (2013) (Preamble to § 90.702). In so
doing, 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).” Id. On July 1, 2013, these revisions to section 90.702 went into effect,
changing Florida from a Frye jurisdiction to a Daubert jurisdiction.10
9The pure-opinion testimony exception to the Frye test is not limited to medical expert testimony. See Jones v. Goodyear Tire & Rubber Co., 871 So. 2d 899, 902-03 (Fla. 3d DCA 2003) (applying pure-opinion exception to expert testimony regarding tire defects).10 Section 90.702, as amended, reads as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1)The testimony is based upon sufficient facts or data;
8App. 8
The Daubert Test
Although there has been a healthy debate among courts and commentators
over whether the Daubert standard for admissibility of expert testimony is more
lenient or more strict than the Frye standard which it displaced two decades ago in
the federal courts and in some state courts thereafter, the Florida Legislature has
settled that debate for the trial and appellate courts of this state. It is the express
intent of the Legislature that the courts of this state interpret and apply the
principles of expert testimony in conformity not only with Daubert v. Merrell Dow
Pharmaceuticals, but also with General Electric Co. v. Joiner and Kumho Tire Co.,
Ltd. v. Carmichael as well. Ch. 2013-107, § 1, Laws of Fla. (2013). Thus, the
Daubert test applies not only to “new or novel” scientific evidence, but to all other
expert opinion testimony. See Kumho Tire, 526 U.S. at 147-49 (“The initial
question before us is whether this basic gatekeeping obligation applies only to
‘scientific’ testimony or to all expert testimony. We, like the parties, believe that it
applies to all expert testimony.”). Expert testimony that might otherwise qualify as
“pure opinion” testimony is expressly prohibited. Ch. 2013-107, § 1, Laws of Fla.
(2)The testimony is the product of reliable principles and methods; and
(3)The witness has applied the principles and methods reliably to the facts of the case.
(revisions emphasized).
9App. 9
(2013). The legislative purpose of the new law is clear: to tighten the rules for
admissibility of expert testimony in the courts of this state.11
Moreover, section 90.702 of the Florida Evidence Code indisputably applies
retrospectively. See Windom v. State, 656 So. 2d 432, 439 (Fla. 1995) (holding
that a statute which only relates to the admission of evidence is procedural in
nature and does not violate the prohibition against ex post facto laws); Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (“Procedural or
remedial statutes … are to be applied retrospectively and are to be applied to
pending cases.”). Although the revisions to section 90.702 came into force after
the filing of this appeal, we apply them retrospectively to the facts of this case. We
are not the first district court to do so. See Conley v. State, 129 So. 3d 1120, 1121
(Fla. 1st DCA 2013).12
11 That this is so is further confirmed by an amendment made to section 90.704 of the Florida Statutes by the same chapter law. As of July 1, 2013, section 90.704 was amended to read:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
(emphasis added).12 We recognize the Florida Supreme Court, not the Florida Legislature, is vested
10App. 10
Under Daubert, “the subject of an expert’s testimony must be ‘scientific
knowledge.’” 509 U.S. at 590. “[I]n order to qualify as ‘scientific knowledge,’ an
inference or assertion must be derived by the scientific method.” Id. (emphasis
added). 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 593; see also Black’s Law Dictionary 1465-66 (9th ed. 2009)
(“[S]cientific method [is] [a]n analytical technique by which a hypothesis is
formulated and then systematically tested through observation and
experimentation.”).13 As the United States Supreme Court explained in Daubert,
“This methodology is what distinguishes science from other fields of human
inquiry.” Id. at 593. Thus, “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
by the Florida Constitution with the right and obligation to adopt rules of practice and procedure for the courts of this state. Article V, § 2(a), Fla. Const. We take comfort here in the fact that the Florida Supreme Court periodically adopts all legislative changes to the Florida Evidence Code to the extent they are procedural, see In re Amendments to the Florida Evidence Code, 825 So. 2d 339, 341 (Fla. 2002), and has already stricken all references to the Frye test from the Florida Rules of Juvenile Procedure and adopted the amendments to section 90.702. See In re Amendments to the Florida Rules of Juvenile Procedure, 123 So. 3d 1128, 1129-30 (Fla. 2013).
13 This methodology is similarly described as “falsification.” See K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) (“[T]he criterion of the scientific status of a theory is its falsifiability, or refutability or testability.”).
11App. 11
information that actually can be or has been tested within the scientific method. Id.
“General acceptance” [from 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. Id. at 593-594. Thus, there remains some play in the
joints. 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.” Marsh, 977 So. 2d at 547 (citing Daubert, 509 U.S. at 594).
Subjective belief and unsupported speculation are henceforth inadmissible. See
Daubert, 509 U.S. at 590.
Dr. Cardella’s proposed testimony is inadmissible under Daubert. Dr.
Cardella had never before related a placental abruption to workplace stress and
knew of no one who had. There is no scientific support for his opinion. The
opinion he proffers is a classic example of the common fallacy of assuming
causality from temporal sequence. See McClain v. Metabolife Int’l, Inc., 401 F. 3d
1233, 1243 (11th Cir. 2005). In logic, the error is known as the post hoc, ergo
propter hoc fallacy.14 See Id. “Here, as elsewhere in the law, propter hoc must be
distinguished from post hoc.” Hennigan v. Ouachita Parish Sch. Brd., 749 F. 2d
1148, 1152 (5th Cir. 1985).
We affirm the decision of the trial court.
14 Translated from the Latin, post hoc ergo propter hoc literally means “after this, therefore because of this.” Black’s Law Dictionary 1285 (9th ed. 2009).
12App. 12
13App. 13