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Florida Attorneys Resist Change in Expert Witness Admissibility Rules

Attorneys in Florida recently submitted a recommendation to the state Supreme Court requesting the judiciary refuse a legislative directive to increase scrutiny on expert witnesses.  The recommendation and accompanying report submitted by the Florida Bar association highlights an ongoing debate about the proper standard for evaluating and admitting expert testimony in court.

Florida’s Expert Testimony Standard

In 2013 the Florida legislature passed a law which required the Florida judiciary to adopt the same legal standard for admitting expert testimony as the federal court system uses.  The standard, known as the Daubert test, requires judges to conduct a thorough evaluation of proposed expert witness testimony across three parts: whether the expert’s work is based on sufficient facts or data, is the product of reliable principles and methods, and has applied the principles and methods reliably to the facts of the case.  Under the Daubert standard courts are required to assess an expert’s qualifications, the work a proposed witness did to prepare testimony, and the standards used by specialists in the expert’s field of study.

Florida legislators responded to assertive lobbying efforts led by business groups and medical organizations by adopting the Daubert standard for expert testimony in state courts, setting off a debate between the law’s proponents and plaintiff attorneys of the Florida Bar Association.  According to arguments from plaintiff attorneys, a more restrictive approach to admitting expert witness testimony only benefits large businesses or deep-pocketed defendants who use the standard as a way to stymie legitimate lawsuits.

Florida Attorneys Resists New Expert Witness Standard

Members of the Florida Bar Association have resisted change to the Daubert standard since the state legislature adopted the new test in 2013 by arguing it prevents low-income citizens from being able to pursue legitimate legal claims.  Attorneys caution the Daubert standard enables wealthy defendants use procedural rules on expert admissibility to delay and make expensive lawsuits to the point where plaintiffs may be discouraged to continue.  Opponents to the Daubert test argue wealthy defendants can rely on a select few experts who routinely testify on the same issue across several lawsuits while plaintiffs without the same resources would be unable to find or afford experts the courts would admit.

The Daubert standard reduces the number of available experts by imposing more rigorous standards of admissibility, and with a smaller pool of experts to choose from it becomes difficult for every lawsuit to have a qualifying expert to offer support.  Attorneys who oppose the Daubert standard argue Florida should retain its old test for expert witness admissibility known as the Frey test.  The Frye test offers a much simpler requirement to determine expert qualifications: whether the proposed expert testimony is based on techniques and theories which are generally accepted as reliable in the relevant scientific community.  Unlike the Daubert standard which requires judges to evaluate expert testimony, the Frye test simply asks judges to ascertain whether the scientific community has conducted an evaluation.

Proponents of the Daubert standard argue the Frye test too frequently allow “junk science” to be used in court by experts who can find any scientific publication to submit their work, and maintain that using a more rigorous standard for expert analysis preserves the integrity of the legal system and prevents frivolous lawsuits.

Florida Bar Association Asks State Supreme Court to Reject Daubert Standard

After several months of debate over the Daubert and Frye standards, the Florida Bar’s Board of Governors voted 33 – 9 to formally recommend the state Supreme Court not adopt the Daubert standard in direct opposition of the legislative directive.  Despite the Daubert’s use in the federal court system, and most states, Florida attorneys expressed a desire to maintain the less restrictive Frye standard of expert witness evaluation.  The state Supreme Court has the authority under Florida’s constitution to adopt rules for the judiciary, and, as such, as the ultimate say in whether or not the Daubert standard is used.

With the petition recently submitted to Florida’s Supreme Court there is unlikely to be any action on the issue for several months, but Florida’s internal debate on the appropriate legal standard for admissibility of expert witnesses provides an interesting challenge to a long-accepted method for assessing expert reliability.

11th Circuit Rules Expert Testimony Based on Theory is Inadmissible

Last month, the federal 11th Circuit Court of Appeals confirmed that the lower federal trial court correctly excluded expert witness testimony due to insufficient factual support.  In a lawsuit against Fixodent denture adhesive, defendants were granted summary judgment due to the failure of plaintiff’s expert witness to link the allegedly defective product to the harm suffered.

Expert Witness Standards in Toxic Torts

In personal injury lawsuits alleging a defective product created a toxic risk, the plaintiff must be able to establish a causal link between the product and the harm suffered.  In modern litigation, this is done exclusively with expert testimony by use of scientists who either connect conclusions established by existing studies to the facts of the case or argue that a new study or method of analysis creates the necessary causal link for the plaintiff to be successful.

Regardless of whether the expert applies established scientific literature to the case or supports the application of new science to the litigation, federal judges will determine if the expert testimony is reliable and relevant by applying the test created by the Supreme Court in Daubert v Merrell Dow Pharmaceuticals.  Under Daubert, expert testimony is considered reliable if the scientific methodology is based on sound theory, was well researched, and was accurately applied the facts of the case.  Typically, judges look to established literature from peer reviewed journals to assist the determination if a particular expert is supporting his testimony with reliable science, but when the science is relatively new, judges are forced to take a close look at the methods and procedures applied by the expert witness.

In Chapman v Procter & Gamble Distributing, LLC, plaintiff’s expert witness testified to recent scientific studies that, in theory, supported the allegations that defendant’s products caused medical harm.  The 11th Circuit determined that the testifying expert had failed to connect his scientific theory to the cause of the plaintiff’s injury.

Plaintiff Expert Witness Fails Reliability Test

At issue in Chapman is whether or not Fixodent denture adhesive from P & G caused the plaintiff’s neurological disorder.  To demonstrate the necessary causal link between Fixodent and the plaintiff’s injuries, plaintiffs called an expert to argue that the excessive levels of zinc found in Fixodent created a risk for copper deficiency that would lead to neurological complications.  During his Daubert hearing, the plaintiff’s expert cited existing research, but only research that showed the connection between zinc and copper deficiency.  In terms of forming the causal link between Fixodent’s zinc levels and neurological disorders, the expert could only hypothesize based on his inference from the more general research.

The 11th Circuit was not convinced that the expert’s proposed testimony was reliable, and found that his testimony was properly excluded during trial.  Without established research to connect the specific product to the harm suffered, the plaintiff’s expert needed more than just a theory or untested hypothesis.  In regards to the particular theory advanced by the plaintiff’s expert, the Court wrote, “Taking everything together, there is enough data in the scientific literature to hypothesize causation, but not to infer it. Hypotheses are verified by testing, not by submitting them to lay juries for a vote.”

11 Circuit Disallows Expert Testimony

Affirming the trial court’s decision to exclude the expert testimony, the 11th Circuit supported its decision by writing, “Because these experts have failed to demonstrate the primary methods for proving [that] the zinc in Fixodent causes [neurological injury], their secondary methodologies, including plausible explanations, generalized case reports, hypotheses, and animal studies are insufficient proof of general causation. This latter evidence could mislead the jury by causing it to consider testimony that was insufficient by recognized primary methodologies to prove [that] using Fixodent causes [neurological injury].”

Even though the expert witness theory was based on generally accepted science the particular factual inference was not, and, as such, the plaintiff’s expert could not present his opinion during trial.  Although the exclusion of the expert witness effectively dismantled the plaintiff’s lawsuit, the 11th Circuit could not justify allowing opinion that was not based on scientific study.  The Chapman case serves as an important example of why expert witnesses must be able to support their testimony with reliable and relevant scientific study.