A “battle of the experts” is often the reality in civil litigation. A case may be won or lost based on expert testimony and this is equally true in the context of federal practice. As a result, keeping a plaintiff’s questionable and over-reaching expert testimony out of the courtroom becomes key. On July 1, 2013, the Florida Legislature adopted Daubert through passage of Florida Statute § 90.702.1 Florida’s adoption of the federal Daubert2 standard profoundly changes the realm of expert testimony, keeping suspect expert testimony from juries. This article discusses the adoption and progression of Daubert within federal courts, specifically successful Daubert challenges within the Eleventh Circuit Court of Appeals. Daubert challenges may now be used within Florida courts, with trial courts being more receptive to persuasive federal authority for the first time.

Pre Daubert Decision

Prior to the adoption of Daubert, federal judges admitted a vast amount of expert testimony without the present level of regard for the scientific reliability of such testimony. A similar standard has applied in Florida under Frye. Frye v. U.S. focused on “general acceptance” of the expert’s testimony within his or her respective field.3 One of the best indicators of Frye’s failure was seen in Wells v. Ortho Pharmaceutical Corporation.4 In Wells, the court upheld a $5.1 million dollar verdict for the plaintiff alleging common spermicide caused birth defects, despite the lack of statistically significant studies supporting causation and damages.5 In so holding, the court observed that “[I]t does not matter in terms of deciding the case that the medical community might require more research and evidence before conclusively resolving the question. What matters is that this particular fact finder found sufficient evidence of causation in a legal sense.”6 Historically, federal courts had been divided on the proper standard for admission expert testimony.7

Evolution of the Daubert Decision

In Daubert, the plaintiffs sought damages for birth defects caused by the drug Benedectin, which was prescribed to pregnant women for nausea.8 The defendant moved for summary judgment contending that the plaintiffs did not have admissible evidence demonstrating Benedectin caused defects in humans.9 The trial court granted the defendant’s motion based on an expert affidavit, which concluded scientific literature did not correlate the drug with human birth defects.10 The plaintiffs’ experts relied on animal studies linking birth defects to Benedectin.11 The trial court applied the Frye standard of general acceptance to the expert’s testimony and rejected the Plaintiffs’ studies valuing epidemiological data over animal studies.12
The U.S. Supreme Court vacated the trial court’s decision, rejecting the Frye standard as “rigid” and “at odds with the liberal thrust of the Federal Rules.”13 The initial determination to be made by a trial judge was whether the qualified expert was offering scientific testimony that would assist the trier of fact.14 The expert had to be qualified by knowledge, skill, experience, training, or education.15 The Court delineated new, non-exhaustive requirements for determining reliability of expert testimony: 1) methodology; 2) whether the theory or technique has been subjected to peer review and publication; 3) potential rate of error; and, 4) general acceptance within the relevant scientific community.16 The Court was “confident that federal judges possess[ed] the capacity to undertake this review.17
The Court did, however, acknowledge concerns raised by both parties in Daubert. Daubert would not keep all evidence out of the courtroom; however, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof” would remain the traditional and appropriate means of attacking shaky but admissible evidence.18 Moreover, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably would prevent the jury from learning authentic insights and innovations.19 In other words, Daubert would sometimes keep new scientific hypotheses and theories from the jury because law, unlike science “must resolve disputes finally and quickly.”20
In Kumho Tire Co., Ltd. v. Carmichael, the U.S. Supreme Court extended Daubert to all types of expert testimony, not just scientific evidence.21 Regardless of the field, expert testimony would greatly benefit from the intellectual rigor and methods employed by those practicing within the expert’s discipline.22 Kumho gave trial court judges a great amount of discretion in determining whether Daubert should apply and the necessity of hearings to determine reliability.23 The Court further noted there would be instances where an expert’s testimony may be presumed reliable, thus avoiding any “unjustifiable expense and delay” associated with Daubert motions.24

Consequences of Daubert

While the U.S. Supreme Court stressed the “flexibility” of Daubert, many believe the standard is too strict and unfairly beneficial to the defense.25 “This standard makes the expert evidence terrain steeper and more treacherous for plaintiffs.” 26 Empirical studies taken after the adoption of Daubert show more parties challenging the admissibility of evidence and more judges excluding a greater proportion of testimony.27 In addition, “Daubert has empowered defendants to exclude certain types of scientific evidence, substantially improving their chances of obtaining summary judgment and thereby avoiding what are perceived to be unpredictable and often plaintiff-friendly juries.” 28
The adoption of Daubert in Florida state courts is certainly an advantage for the defense. A successful Daubert challenge can lead to the exclusion of evidence required by plaintiffs to prove elements of the case, thereby increasing chances of succeeding on summary judgment. Even if summary judgment is not the ultimate outcome, a court may grant motions in limine based on a Daubert hearing.
Most importantly, Daubert stressed that the factors delineated in its analysis are “non-exhaustive,”29 which allows for creative lawyering in drafting Daubert motions based on the idiosyncrasies of each discipline and field of expert testimony.
Persuasive Eleventh Circuit’s Application of Daubert
The Eleventh Circuit, which will be persuasive to our state court judges, has given great deference to Daubert challenges. The following is a summary of relevant cases decided by the Eleventh Circuit:
Cooper v. Marten Transport, Ltd, 539 Fed. App’x. 963 (11th Cir. 2013): Upheld the trial court’s exclusion of testimony from a biomechanical engineer and treating physicians in an auto negligence case. First, the biomechanical engineer’s conclusion regarding the source of injury was not the product of a scientifically reliable method or testing. His testimony amounted to asking the court to “tak[e] the expert’s word for it.” Second, the plaintiff’s treating physicians’ testimony regarding causation was unreliable because they failed to show systematic and scientific exclusion of other diagnoses30 until the final cause remained. Instead, they simply reviewed the records and examined the Plaintiff to decide whether the accident caused the alleged injury, relying instead on a “temporal relationship.”
Goldstein v. Centocor, Inc., 310 F. App’x 331 (11th Cir. 2009): Expert testimony linking a medication (Remicade) to pulmonary fibrosis was unreliable because the expert did not rely on any epidemiological studies. “This is not fatal, but makes his task to show general causation more difficult.” The expert also relied on studies made without medical controls or scientific assessment.31
Jazairi v. Royal Oaks Apartment Associates, L.P., 217 F. App’x 895, 896 (11th Cir. 2007): The plaintiff sought damages against her apartment complex for growth of mold, alleging it caused coughing, chest pain and shortness of breath. Although the expert produced medical and scientific journals describing a certain type of bacteria (found in air conditioners and humidifiers) could cause the plaintiff’s symptoms, the expert never produced evidence linking the bacteria to the mold in the plaintiff’s apartment. The court held that even when an expert is using reliable methods and principles, “there cannot be an analytical gap between the data and proffered opinion.”
Motor Co., Inc., 238 F. App’x 537, 540 (11th Cir. 2007): Product liability suit, where the plaintiff alleged high temperatures inside the footwells of his ATV made the vehicle unreasonably dangerous and caused injury. The olaintiff’s expert in ATV design and safety conducted tests using a dummy with temperature probes on its ankles. The expert concluded the ATV was unreasonably dangerous and could cause burns. The court excluded the testimony under Daubert due to unreliable methodology. The expert “produced no data showing that the conductive and heat-retentive properties of the dummy’s foot were similar to those of a human foot. Nor did he show a reliable way to extrapolate from the temperature readings on the dummy’s foot to the comparable temperatures on a human foot.” Th court also highlighted that varying testing conditions used by the expert also jeopardized reliability. Summary judgment affirmed due to the plaintiff’s inability to prove a safer, alternative design.
McDowell v. Brown, 392 F.3d 1283, 1300 (11th Cir. 2004): Expert claimed delay in treatment of a spinal epidural abscess caused or worsened the plaintiff’s condition. He based his opinion on common sense that earlier treatment is preferable to later intervention. He also used a study that analyzed the effects of 48 hours of delay in treatment; however, the court concluded the study should not be applied to the 24 hour delay in that case. The expert’s theory should not “leap” from an accepted scientific premise to an unsupported one.
The Eleventh Circuit’s willingness to consider Daubert challenges in many different disciplines of law is certainly an advantage for future state court challenges. In order to seize such an advantage, it is important for counsel to proactively set-up a Daubert challenge and plan for one prior to taking expert depositions.
Endnotes

1 Fl. State Stat. § 90.702 (2013).
2 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 585 (1993)
3 See, Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
4 788 F. 2d 741 (11th Cir. 1986)
5 Id. at 745.
6 Id.
7 See, Daubert, 509 U.S. at 585.
8 Id. at 582.
9 Id. at 583.
10 Id.
11 Id.
12 Id. at 584.
13 Id. at 579, 589.
14 Id. at 593.
15 Id. at 588.
16 Id. at 593-94. Note, the Daubert standard is codified in Federal Rule of Evidence 702.
17 Id. at 593.
18 Id. at 596.
19 Id. at 597.
20 Id.
21 526 U.S. 137, 138 (1999).
22 Id. at 152.
23 Id. at 152-153.
24 Id. at 152.
25 See, Daubert, 509 U.S.at 580 (“The [Daubert] inquiry is a flexible one. . . .”).
26 American Trial Lawyers of America, Living with Daubert- Learn the Science and Leave the Checklists Behind, 2 Ann.2002 ATLA-CLE 2595 (2002).
27 A. Leah Vickers, Daubert, Critique and Interpretation: What Empirical Studies Tell Us About the Application of Daubert, 40 U.S.F. L. Rev. 109, 110 (2005).
28 Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471, 472-73 (2005).
29 See, Kumho, 526 U.S. at 158 (““Daubert was intended neither to be exhaustive nor to apply in every case.”).
30 This is a great case for medical malpractice based Daubert challenges. This holding gives great importance to a differential diagnoses.
31 This case sets the standard for use of medical literature with less emphasis or importance of someone agreeing to whether it is “authoritative.” Daubert makes use of medical literature essential.