Expert Testimony is Changing in Florida Personal Injury Cases
Today we’re going to talk about expert testimony and the recent changes by the Florida Legislature to the evidence code that significantly affects how experts are going to give testimony to juries. Expert testimony is testimony that is in the form of an opinion, usually elicited by an expert who has training and skills in a particular expertise. Many years ago, the federal courts developed two rules; one was the Daubert test and one was the Frye test, in which the judges were supposed to evaluate how the expert formed their opinion and whether there was a basis for the opinion they were about ready to give. Then, a couple of years ago, the Florida Legislature amended the evidence code; and in the evidence code the rule that tells a judge how a judge is supposed to allow expert testimony. The problem is the Florida Legislature added some additional language to this test and it now reads:
“If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or 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:”
- The testimony is based upon sufficient fact or data;
- The testimony is the product of reliable principles and methods; and
- The witness has applied the principles and methods reliably to the facts of the case.
This list is the additional language. Now, what’s wrong with that language? Well, there hasn’t been a whole lot of case law interpreting what they meant when the legislature said that. However, recently in the Third District Court of Appeals in Florida they issued an opinion called “Perez v. Bell South” in which an opinion of an expert was stricken by a judge, and the judge subsequently entered summary judgment for the winning party. The losing party appealed. Unfortunately they lost the appeal, and we ended up with the Perez decision. Now, what does the Perez decision tell us? The Perez decision has some very disturbing language in it. Listen to what the Perez decision says: “Subjective belief and unsupported speculation are henceforth inadmissible … The opinion he proffers as a classic example of the common fallacy of assuming causality from temporal sequence.” What does that mean? That means if someone falls and breaks their leg, you can assume the fall broke their leg.
According to this Perez opinion, that’s not the case anymore. So how does that fit into a personal injury case? Most doctors that treat people that have personal injuries will eventually be asked to testify that the accident that they were in led to the injury, and the injury required them to get treatment. According to this Perez decision, that doesn’t happen any more. Doctors are now going to have to reference tests or studies or some sort of scientific principle that allows them to say that a particular accident caused a particular injury. Simply relying on their years of experience as a doctor isn’t going to be sufficient anymore.
A lot of the personal injury practice is now going to be faced with defense attorney motions and the like, starting to attack doctors who have historically never had any problems saying that an automobile accident caused this injury or fall caused this break in a person’s leg. I predict that that is going to be a problem in the future because what we are now going to be doing is having significant difficulty presenting expert testimony in Florida.
Stay tuned for more of Joe’s Legal Gems by Attorney Joseph R. Fields, Jr.