Florida Experts Can No Longer Provide “Pure Opinion Testimony”

 In Personal Injury

lawyer with gavelEver since the Florida legislature modified Florida statute 90.702 to adopt the expert testimony standards commonly known as “Daubert”, I have been cautioning personal injury litigators that this new statute would eventually lead to nightmare  situations. My predictions have come true.

The first appellate court decision to address these modifications came from the case of Perez v. BellSouth. This opinion states: “subjective belief and unsupported speculation are henceforth inadmissible”. Assuming causality from temporal sequence is no longer allowed. What this means is that a history of being in an accident doesn’t equate to the injuries coming from that accident, if that is only a physician’s or expert’s opinion.

The next nightmare opinion we saw was in the case of Giaimo vs. Auto Sport and Summit Claims, a workers compensation claim. Therein, a treating doctor’s opinion as to apportionment of disability was stricken because the doctor failed to provide sufficient supporting testimony to comply with Florida statute 90.702’s three elements that are 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
  3. The witness has applied the principles and methods reliably to the facts of the case.

Giaimo established that a physician expressing an opinion, without any scientific studies or support is no longer acceptable.

We now have another recent opinion that solidifies these concepts. The Florida 1st District Court of Appeal just issued its opinion entitled Booker v. Sumter County Sheriff’s Office, in which these concepts are reiterated. Specifically, pure opinion testimony is not allowed from experts. This opinion cites examples of doctors testifying based upon clinical experience and training, and those opinions are specifically rejected. The specific language of the opinion is: “The common thread running through these examples is that “pure opinion” testimony is based only on clinical experience and training;…” Applying the principles of Daubert, as reflected in the modifications to 90.702, the opinion states: “By adopting the Daubert standard, the Florida legislature….made clear that “pure opinion testimony” was no longer admissible. Pure opinion testimony is testimony based only on the personal experience and training of the expert.

What does this mean for practicing personal injury litigators? It means that the days of having a treating Doctor testify about permanency or causation between injuries and an accident are now over. Treating doctors cannot provide expert testimony that is based on clinical experience and training. They need to provide more than just their own opinions about such issues. Citation to specific studies or scientific knowledge will now need to be provided. Are the current treating doctors out there up to this task? I doubt they are, as they don’t care about such issues when treating a patient’s injuries. For them, they treat the patient, not the case. Only time will tell whether personal injury litigators will be prepared enough to have educated treating physicians.

Image courtesy of freedigitalphotos.net by Suphakit73

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