The application of Daubert reshaped how Florida courts screen expert testimony, and Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492 (Fla. 3d DCA 2014), is a leading illustration. The Third District Court of Appeal held that the 2013 amendment to section 90.702, Florida Statutes — which adopted the test of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and displaced the older Frye “general acceptance” test — applies retrospectively to pending cases. This case brief breaks the decision into its facts, issues, rationale, and holding. For Florida litigators, Perez remains a frequently cited authority on both the retroactivity of the amendment and the outer limits of admissible expert causation opinions.
Facts
Maria Franco Perez worked as a call-center operator for Bell South while pregnant with her first child. Her obstetrician classified the pregnancy as high risk and, in July 2004, recommended that she be limited to 40 hours per week with frequent breaks. Bell South terminated her employment on August 11, 2004. Two days later she suffered a placental abruption and delivered her son roughly twenty weeks premature. On the child’s behalf, she sued Bell South for negligence, alleging that its failure to accommodate her medical restrictions caused the premature birth and resulting complications.
To prove causation, the plaintiffs offered Dr. Isidro Cardella, an obstetrician-gynecologist, who opined that workplace stress caused the placental abruption. On cross-examination he conceded that he knew of no studies, no medical literature, and no colleagues connecting workplace stress to placental abruption. His opinion rested on personal experience and belief alone.
Issues
- Does the 2013 Daubert amendment to section 90.702, Florida Statutes, apply retrospectively to cases pending when it took effect?
- Under that standard, was Dr. Cardella’s causation testimony admissible?
Rationale
The court first addressed retroactivity. Because statutes governing the admissibility of evidence are procedural rather than substantive, the amended section 90.702 “indisputably applies retrospectively,” and applying it does not offend ex post facto principles.
On the merits, the court explained that the 2013 amendment moved Florida from a Frye jurisdiction to a Daubert jurisdiction and abolished “pure opinion” testimony. Under Daubert, the touchstone is the scientific method — forming a hypothesis and subjecting it to empirical testing — with general acceptance in the scientific community reduced to one factor among several rather than the controlling test.
Measured against that standard, Dr. Cardella’s opinion failed. No scientific studies, no peer-reviewed literature, and no colleagues supported a link between workplace stress and placental abruption. The court found the opinion to be classic post hoc, ergo propter hoc reasoning — mistaking a temporal sequence for proof of causation — and therefore unsupported speculation rather than “scientific knowledge.”
Holding
On the application of Daubert, the Third District affirmed summary judgment for Bell South. The amendment to section 90.702 applies retrospectively, and under either Frye or Daubert, Dr. Cardella’s testimony was inadmissible because it lacked any scientific foundation. See Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 498 (Fla. 3d DCA 2014).
Why the Application of Daubert Still Matters in Florida
Perez was decided while the constitutionality of the Daubert amendment was still unsettled. That question is now resolved: effective May 23, 2019, the Florida Supreme Court adopted the Daubert amendments to the Evidence Code (In re Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019)), and Daubert is the governing standard for expert testimony in Florida courts today. The practical lesson of the application of Daubert is unchanged: an expert’s say-so is not enough. Opinions must be grounded in reliable methods and data, or they will not survive a motion to strike.
Have a Florida case that turns on expert testimony? Contact Cox Law, PLLC to discuss how the Daubert standard applies to your matter — or email us directly at Webquestion@Coxlawplc.com.