DAUBERT IN FLORIDA: ONE YEAR LATER July 18, 2014

LEARNING OBJECTIVES Summary and Analysis of Florida Appellate Opinions on Daubert Discussion of Trial Court Orders on Daubert Procedural and Substantive Recommendations for Handling Daubert Motions in State Court

QUESTION ONE: Which German Philosopher was the Subject of a daubert Opinion by the Florida Supreme Court? 1) Karl Marx 2) Rudolph Fichte 3) Johan Fiezte 4) Friedrich Neitzsche

Friedrich Neitzsche

Zakrewski v. State, 2014 WL 2810560 (Fla. June 20, 2014) Prisoner files appeal of post conviction relief order On appeal, he claims that the Daubert standard should be applied retroactively to the testimony of a penalty-phase witness concerning the beliefs of Nietzsche—this testimony occurred at a hearing in 1996 Holding: Daubert would not apply retroactively to a hearing held in 1996 and further that Nietzsche’s testimony would not be governed by Frye or Daubert

Rule 90.702, Florida Statutes 90.702 Testimony by Experts—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 on sufficient facts or data (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

Question Two: What is the Burden of Proof? 1) Clear and Convincing 2) Beyond a Reasonable Doubt 3) Preponderance of the Evidence

Daubert: Burden of Proof Proponent of the evidence has the burden of proof to show the evidence is relevant and reliable by the PREPONDERANCE OF THE EVIDENCE (US v. Frazier, 387 F.3d 1244 (11th Cir. 2004))

Question Three: What is the Standard of Review on Appeal? 1) De Novo 2) Abuse of Discretion

Appellate Review The standard of review on appeal is Abuse of Discretion, GE v. Joiner, 522 U.S. 136 (1997)

Question Four: What types of expert testimony does Daubert apply to? 1) Medical Doctors 2) Accident Reconstructionist 3) Damages Expert on Lost Profits in Commercial Cases 4) All expert testimony

Daubert applies to ALL EXPERT TESTIMONY Daubert analysis applies to all Expert Witness Testimony, Kumho Tire v. Carmichael, 526 U.S. 137 (1999)

Daubert Flowchart Is proffered testimony expert testimony? Qualifies as expert by knowledge, skill, training or education Is the expert’s testimony relevant to the issue at hand? Does the expert’s scientific, technical, or other specialized knowledge assist the trier of fact? Is the testimony based on a reliable foundation? Is the testimony based on sufficient facts or data? Is the testimony the product of reliable principles? Has the witness applied the principles and methods reliable to the facts of the case? Does the probative value outweigh the prejudice (Rule 403)

Fla. Stat. 90.702, is the “witness qualified as an expert”? Court should consider the knowledge, skill, experience, training, and expertise. The qualification standards remain the same as under the Frye test. Introduce CV, peer-reviewed articles, prior testimony, establish that subject matter is sufficiently within the expert’s expertise, have they been Daubert-tested? For example, defense accident reconstructionist may not be expert on roadway design If challenging expert, look at when did expert have experience with product at issue (Walker v. CSX Transp. 650 F. 3d 1392 (11th Cir. 2011) (affirming exclusion of expert whose limited experience with product at issue had “occurred over thirty to forty years before case arose”)

Will the Expert’s Scientific, Technical, or Other Specialized Knowledge Assist the Trier of Fact A. UNDERSTAND THE EVIDENCE Expert testimony “which does not relate to an issue in the case is not relevant, and ergo, non-helpful.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591 (1993) Does the testimony concern matters that are “beyond the understanding the average lay person?” Is the opinion ipse dixit (“because I say so”?) B. DETERMINE A FACT IN ISSUE? Rule 702 “helpfulness” standard requires a valid, scientific connection to the pertinent inquiry as a precondition to admissibility—Daubert, 509 U.S. at 592.

Is the Testimony Based on Sufficient Facts or Data? Peer-reviewed articles

Is the Testimony Based on Reliable Scientific Principles? Has the expert’s testimony been tested? Whether the theory or technique has been subjected to peer review and publication? Whether there is a known or potential error rate in methodology? Whether the technique generally accepted in relevant community? (see Perez v. BellSouth—general acceptance can have bearing on inquiry)

Question Five: True or False, Must Expert Testimony Meet All the Factors

Reliability Factors False. The inquiry is flexible and Daubert factors may not apply in every case. Trial judges have broad latitude to serve as “gatekeepers”

Has the Expert Reliably Applied the Principles and Method to the Facts in the Case? Must be logical connection to analysis and opinion? Is the opinion “ipse dixit”—Because I say so Is there any analytical gap between the analysis/calculation/test and the result? Is there a fit between the analysis/calculation/test and the result?

Ipse Dixit—”Because I say so” “WHEREAS, by amending s. 90.702, Florida Statutes, the Florida Legislature intents to prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 542 (Fla 2007)—Laws of Fla. Ch. 2013-107 “[N]othing in either Daubert or the Federal Rules of Evidence Requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) Perez v. BellSouth Telecommunications, Inc., 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014) (excluding Plaintiff’s expert opinion that stress caused patient’s placental abruption, where “his conclusions were purely his own personal opinion, not supported by an credible scientific research”) Snow v. Philip Morris (Judge Kest—Orange County March 25, 2014)

Perez v. BellSouth Telecommunications “express intent of the Legislature that the courts of this state interpret and apply the principles of expert testimony not only with Daubert v. Merrell Dow Pharmaceuticals, but also with General Electric Co. v. Jointer and Kumho Tire Co., v. Carmichael as well”. “Daubert test applies to all other expert opinion testimony” “Expert testimony that might otherwise qualify as ‘pure opinion’ testimony is expressly prohibited.” The “legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.” “section 90.702 of the Florida Evidence Code indisputably applies retrospectively”. Apply 90.702 “retrospectively to facts of this case. We are not the first district court to do so.” See Conley v. State, 129 So. 3d 1120 (Fla. 1st DCA 2013) –reversed and remanded for new trial under Daubert to evidence of PPG test in Jimmy Ryce Act proceeding

Perez v. BellSouth--Facts Expert had never before related placental abruption to workplace stress and knew of no one who had Was no scientific support for his opinion Opinion was classic example of common fallacy of assuming casualty from temporal sequence

Question Six: Is a hearing required on a Daubert motion? 1) Yes 2) No

A Daubert Hearing is Not Required Court may rule upon the papers (affidavits, expert reports, depositions)

Daubert Procedures Daubert applies to both Plaintiffs and Defendant’s experts Identify Daubert issues—Do written Daubert discovery (Interrogs, RTP) Daubert Depositions Request Daubert evidentiary hearing as soon as discovery completed Request sufficient time for Daubert hearing Do not make Daubert challenge during middle of trial