Expert Testimony: How The New Law Reads
For decades, experts testifying in Florida were held to different “expert standards” depending upon whether they were testifying in federal court or state court. In 2013, the Florida Legislature modified Florida Evidence Code 90.702 adopting the federal expert testimony standards created in the United States Supreme Court Daubert decision. (See Daubert vs. Merrill Dow Pharmaceutical, 509 US 579 (1993)). The old Florida Evidence Code standard for expert testimony was known as the Frye standard. (See Frye vs. United States, 293 F.2d 1013 (D.C. Cir. 1923))
Florida’s Evidence Code regarding experts now reads:
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 in the form of an opinion or otherwise if:
- The testimony is based upon sufficient facts or data
- The testimony is the product of reliable principles and methods
- The witness has applied the principles and methods reliably to the facts of the case. (I’ve bolded the new elements.)
I previously blogged about last year’s Perez vs. BellSouth decision. The Perez decision was the first Florida appellate court decision to address these new changes. Here is the exact verbiage used in the Perez opinion: “Subjective belief and unsupported speculation are henceforth inadmissible” and “The opinion he (the expert) proffers is a classic example of the common fallacy of assuming causality from temporal sequence.”
I predicted in my blog:
“A literal reading of the language contained within this opinion suggests that pure opinion testimony is now prohibited. What does this mean in a personal injury litigation context? It could mean that testimony from a treating doctor about causation between an injury and accident might not be allowed unless there is a scientific basis for the connection. Most treating doctors in Florida are willing to testify that within a reasonable degree of medical probability, a particular accident caused the injuries being sued upon. But very few of those doctors could cite or point to any scientific studies that support the conclusion other than their years of experience as treating physicians. In other words, just because a person didn’t have neck/back pain before the accident, doesn’t mean the accident caused it. This opinion is very troubling in that it will likely be used by defense firms to strike the testimony of treating doctors providing causation evidence linking an accident and any particular injury. We will now be faced with a multitude of motions from both sides attacking the ability of the experts to opine one way or the other on causation. Don’t forget, the same rule will apply to defense doctors who opine that there is nothing wrong with a person, everything preexisted a particular accident, everything is degenerative or age-related, or a plethora of other reasons defense hired doctors use to try to help the law firms that routinely use them.”
Was I correct in my prediction?
In a recent workers compensation appellate decision, the very problem I was predicting has now reared its ugly head. In the Florida First District Court of Appeal decision of Giaimo vs. Auto Sport and Summit Claims, the testimony of a workers compensation authorized doctor was held to be insufficient as being violative of Florida’s new expert testimony evidence code. Even though the treating doctor (Dr. Lee) was a well-respected and well-qualified neurosurgeon and familiar with the claimant’s prior and current medical condition, such familiarity was deemed insufficient to weather the new expert testimony standard. Despite the workers compensation judge opining that Dr. Lee’s testimony was not pure opinion but rather an expert witness opinion based on his knowledge, skill, training, and firsthand experience as a treating physician, such “qualifications” were still deemed to be insufficient to allow this treating doctor to opine about the claimant’s pre-existing apportionment issue.
The Giaimo decision sites Florida statute 90.702’s three elements necessary to be established before an expert can present “opinion” testimony. Those elements are: (1) the testimony is based upon 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. The decision indicates that the Florida legislature’s adoption of the Daubert standard reflected its intent to prohibit “pure opinion testimony”.
What was the net effect of this adoption?
As to the first element, Dr. Lee based his opinion on the prior and current medical records, including diagnostic studies from the doctor who had treated him prior to his work related accident. Dr. Lee “arguably” had sufficient facts and data upon which he could base his opinion. However, it was because of the second and third elements not being met that led to the reversal of the judge of compensation claims opinion. As to the second and third elements, when Dr. Lee was asked how he came up with his apportionment opinion he stated: “When I was asked and thought about it, that is the answer that I came up with”. This testimony was deemed to provide no insight into what principles or methods were used to reach this opinion. The doctor further did not demonstrate that he applied any such principles or methods to the facts of this case.
That quoted testimony of Dr. Lee was the specific reason the appellate court held that the claimant’s attorney did not establish the appropriate evidentiary code standard in presenting this opinion testimony. Because there was no basis in the record to support Dr. Lee’s opinions, reliance upon such opinions was deemed to be erroneous.
We can expect further appellate court decisions restricting or limiting treating doctor’s expert opinions if they are not properly supported by the second and third elements outlined above. What does this mean for a practicing attorney doing personal injury litigation? It means 90.702 has become a two-edged sword. None of the typical IME or DME doctors have a body of research in their back pockets and/or testifying experience to meet the second and third elements of the new statute. However, most treating doctors don’t either!
It looks like all attorneys will have to start finding sufficient studies and tests in order to have our expert doctors testify the way we used to have them testify. Obtaining these studies and exploring them with expert testifying doctors is an expensive, time-consuming, and difficult task. Is this something that your firm or lawyer is prepared to do? It is now vitally important to hire experienced lawyers who have the wherewithal to overcome this new hurdle.
Images courtesy of freedigitalphotos.net by ddpavumba and suphakit73