Florida Supreme Court Hears Argument on Daubert Standard
03.14.18 | Permalink
Posted By: Lena Mirilovic
On March 6, 2018, the Supreme Court of Florida heard argument in a case that presents the Court with an opportunity to resolve whether Frye or Daubert will be the governing standard for admission of expert testimony going forward in Florida state courts. DeLisle v. Crane Co., et al., No. SC16-2182. In this closely watched case, the Plaintiff challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older Frye standard in favor of the more rigorous Daubert standard for admissibility of expert testimony.
There has been considerable uncertainty in the lower courts as to the proper standard for expert testimony following the Supreme Court’s rules decision that declined to adopt the 2013 Daubert Amendment, to the extent it is procedural. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. While that rules decision did not pass on the constitutionality of the Daubert Amendment, it raised uncertainty about the viability of Daubert in Florida and the potential that the Court would ultimately rule the statute invalid when presented with a proper case and controversy in which to address the issue. The Supreme Court voted four to three to accept discretionary-review jurisdiction in DeLisle in July 2017, giving the Court its first opportunity to directly consider the constitutionality of the Daubert Amendment. (For additional background, see Florida Supreme Court to Rule on Constitutionality of Daubert Standard; Daubert Under the Microscope Again by Florida Courts.)
The first several minutes of the oral argument focused on whether the Court has jurisdiction in this case to rule on the constitutionality of the Daubert Amendment. Justices Canady and Lawson, who dissented from the Court’s July 2017 decision to accept discretionary-review jurisdiction, sharply questioned the Plaintiff on this point, and disputed his position that the Fourth District Court of Appeal had ruled on the constitutionality of the Daubert Amendment by applying the 2013 statute. James Ferraro, arguing for the Plaintiff, maintained that the Court properly accepted conflict jurisdiction because the Fourth District’s application of Daubert conflicted with earlier Supreme Court decisions pre-dating the enactment of the Daubert Amendment, which adhered to the Frye standard. However, he was unable to identify a district court of appeal decision refusing to apply the Daubert Amendment, in conflict with the Fourth District’s decision below. In general, conflict jurisdiction requires an express and direct conflict with a decision of another district court of appeal or the Supreme Court on the same question of law.
The parties’ arguments also addressed whether the Plaintiff’s experts would have been excluded even under the Frye standard—an alternative basis for the Fourth District Court of Appeal’s ruling. The Defendants argued that the Fourth District correctly concluded that the Plaintiff’s experts should have been excluded under either Frye or Daubert. Justices Pariente and Quince expressed skepticism of this position and questioned why the testimony would not have been sufficient for the jury to hear and evaluate under Frye.
Elliot Scherker, arguing for Defendant R.J. Reynolds, downplayed the differences between Daubert and Frye, stating that the first part of the Daubert test is the Frye “general acceptance” standard. Mr. Scherker referred to an “exceedingly thin” line between the two standards, both of which aim to keep junk science out of the courtroom, and argued that the expert testimony excluded by the Fourth District is junk science under any definition. Richard Doran, arguing for Defendant Crane Co., also urged that the outcome in this case would be the same under either Daubert or Frye, and that it was unnecessary for the Court to reach the constitutional issue in this case. During the Plaintiff’s rebuttal argument, Justice Lewis, who was in the majority that voted to accept discretionary-review jurisdiction in the case, pressed Mr. Ferraro on this point. He asked the Plaintiff for the scientific basis for the excluded testimony that would make it admissible under Frye and noted that it may not be necessary for the Court to reach the constitutional issue if the Defendants would prevail even under Frye.
Finally, the parties addressed the central issue to determining the constitutionality of the Daubert Amendment—whether it is substantive or procedural in nature. Plaintiff reiterated the argument made in his brief that the Daubert Amendment is procedural (i.e., not impacting rights, obligations, causes of actions, etc.), and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court.
Justice Pariente noted that the Daubert Amendment has been deemed procedural for purposes of retroactive application, and asked Defendant R.J. Reynolds how the same statute could then be deemed substantive for purposes of separation of powers. Mr. Scherker responded that, under Florida precedent, whether a statute is substantive or procedural depends on the context in which the issue is raised, and that it cannot be the case that a statute deemed procedural for purposes of retroactivity is automatically also deemed an unconstitutional violation of separation of powers. Mr. Scherker argued that section 90.702 of the Florida Evidence Code, which sets out the standard for admission of expert testimony, has been substantive in part and procedural in part since its adoption in 1976 and in its current form as amended in 2013. He urged that the 2013 amendment to the statute is substantive, and therefore constitutional, because it changed the standard for evaluating what constitutes “junk science” that should be excluded.
Three of the justices expressed concern about the impact of Daubert on litigants and the court system. Justice Quince asked the Plaintiff about the impact of increased hearings on motions to exclude experts under Daubert, which the Plaintiff argued were overburdening the court system. Justice Pariente asked the Defendants whether the Daubert standard tends to usurp the jury’s role as trier of fact in evaluating expert testimony. Justices Pariente and Lewis also questioned the Defendants about the practical implications of Daubert for plaintiffs attempting to prove that their injury was caused by exposure to a defendant’s toxic substance over a period of several years through several different products. The Plaintiff here contracted mesothelioma after long-term exposure to asbestos from several different products. Justice Lewis noted that there are not going to be human experiments in such cases to support causation, and questioned if there is an unreasonable burden on plaintiffs to quantify their exposure.
The Court did not hear argument from any of the several amici curiae that filed briefs in the case. The Attorney General for the State of Florida filed a brief in support of the Defendants, and had requested leave to participate in oral argument, which was denied.
The Supreme Court is anticipated to issue its decision in the coming months, which promises to resolve the current uncertainty about the continued viability of Daubert in Florida. If the Justices remain consistent with their positions in the February 2017 rules decision, which declined to adopt Daubert to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in DeLisle, it is anticipated that Justices Labarga, Pariente, Lewis, and Quince will form a majority to reject the Daubert standard. As highlighted in the oral argument in DeLisle, there remains a possibility that the Court will rule on other grounds (e.g., affirming on the basis that the Defendants would prevail even under Frye) and delay resolution of whether Daubert or Frye will be the standard in Florida going forward.Until the issue is resolved, litigants are well advised to seek rulings on the admissibility of expert testimony under both Daubert and Frye. Some trial judges in fact are requiring that any hearings on motions to exclude expert testimony proceed under both standards. This approach will help preserve issues for appeal and guard against the possibility of having to re-litigate these matters once there is a definitive ruling from the Supreme Court on the standard for the admissibility of expert testimony going forward.
 Most litigants and attorneys would likely disagree that there is only minimal difference between Daubert and Frye. However, from R.J. Reynolds’ perspective in the context of this asbestos exposure case, there may not be a significant difference between the two standards.
Florida Supreme Court to Rule on Constitutionality of Daubert Standard
12.19.17 | Permalink
Posted By: Lena Mirilovic
January 10, 2018 UPDATE: The Supreme Court of Florida has scheduled oral argument in the case for March 6, 2018, at 9:00 a.m
The Supreme Court of Florida is poised to decide the constitutionality of the Daubert standard for admissibility of expert testimony, resolving whether Frye or Daubert will be the governing standard going forward in Florida state courts. DeLisle v. Crane Co., et al., No. SC16-2182. The appeal challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older Frye standard in favor of the more rigorous Daubert standard for admissibility of expert testimony. The State of Florida and several other amici curiae have filed briefs weighing in on both sides of the debate, highlighting the wide-reaching impact of the issue before the Court.
The plaintiff in DeLisle brought product liability claims against tobacco companies and others alleging that he developed mesothelioma as a result of exposure to the defendants’ asbestos-containing products. The jury rendered an $8 million verdict in favor of the plaintiff, which the defendants appealed. The Fourth District Court of Appeal held that plaintiff’s causation experts should have been excluded pursuant to Daubert, ordering a directed verdict in favor of one defendant and a new trial for a second defendant.
Plaintiff successfully petitioned the Supreme Court to accept discretionary review of the case. He argues that the Fourth District’s decision should be reversed because the Daubert Amendment violates separation of powers under the Florida Constitution and infringes on the Supreme Court’s authority to adopt rules of judicial practice and procedure. The case has attracted the attention of multiple amcius curiae that have been permitted to file briefs. These include the Florida Justice Association and 44 Concerned Physicians, Scientists, and Scholars Regarding Causation of Asbestos-Related Disease (in favor of petitioner), and the State of Florida, Washington Legal Foundation, Florida Defense Lawyers Association, and Florida Justice Reform Institute (in favor of respondents).
The Supreme Court’s decision to accept jurisdiction in DeLisle provides it with a proper case or controversy to decide the constitutionality of the Daubert Amendment and resolve the uncertainty that followed its recent rules decision in which the Court declined to adopt the Daubert Amendment to the extent it is procedural. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. That rules decision cited “grave constitutional concerns” that the Daubert Amendment may undermine litigants’ access to courts and the right to a jury trial. But the Court did not reach the constitutionality of the amendment or whether it is a substantive or procedural enactment, which it could not do in the context of a rules decision outside of a proper case or controversy. The resulting uncertainty regarding the legitimacy of the Daubert Amendment has created confusion in the lower courts as to the appropriate standard.
As argued in the briefing in DeLisle, the procedural versus substantive distinction is central to whether the Daubert Amendment will be upheld. To the extent that the Daubert Amendment is deemed solely procedural in nature (i.e., not impacting rights, obligations, causes of actions, etc.), the Supreme Court is anticipated to rule that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court. On the other hand, to the extent that the Daubert Amendment is construed to be substantive in nature, it should be upheld as a valid enactment by the Legislature.
There is no bright line rule defining whether a statutory provision is procedural or substantive. The petitioner and supporting amici curiae note that rules of evidence are often deemed procedural and argue that the Legislature improperly acted to overrule longstanding Supreme Court precedent adhering to the Frye standard. In his reply brief, the petitioner urges that rules of evidence are presumptively procedural, and that “[t]here is not a single, identifiable substantive aspect present or intended in the Florida Evidence Code.” On the other side, the respondents and their supporting amici curiae point out that the Supreme Court has previously upheld other statutes governing admissibility of evidence against separation of powers challenges, and that the Daubert Amendment provides litigants a substantive protection against unreliable expert testimony.
The State of Florida argues in its amicus curiae brief that the Daubert Amendment does not violate separation of powers, pointing out that the amendment does not arrogate power to the Legislature and in fact empowers the courts with greater discretion in exercising their gatekeeping function regarding expert testimony. The Attorney General also warns that a ruling that the Daubert Amendment is unconstitutional could have widespread negative effects beyond the Daubert/Frye debate. The brief argues that invalidating the Daubert Amendment on separation of powers grounds would cast doubt on numerous other statutes governing admissibility of evidence, outside of the Evidence Code, that have never been formally adopted by the Supreme Court. This could burden the Court with unprecedented rulemaking obligations to address these scattered evidentiary provisions outside of the Evidence Code.
The briefs in DeLisle also address the relative merits of Daubert versus Frye, although the question of whether the Daubert standard undermines any substantive constitutional rights of access to courts or the right to a jury trial is not at issue in the current appeal. Instead, the focus in DeLisle is whether the Daubert Amendment is invalid on separation of powers grounds. Nonetheless, the Court’s prior rules decision—and its decision to accept discretionary-review jurisdiction in DeLisle—indicates that the Court, as currently comprised, may be inclined to find the Daubert Amendment unconstitutional.
The petitioner’s reply brief in DeLisle was filed on December 12, 2017. The Court has not yet set a date for oral argument. When it ultimately rules, the Court’s decision will have widespread impact and promises to resolve the current uncertainty about the continued viability of Daubert in Florida.
U.S. Supreme Court Draws the Line: Invalidates $2.7 Million Dollar Discovery Sanction Against Manufacturer
05.01.17 | Permalink
On April 18, 2017, the U.S. Supreme Court made a bold and seemingly manufacturer-friendly pronouncement in overturning a federal district court judge’s $2.7 million award in sanctions against manufacturer Goodyear Tire & Rubber Company for a purported discovery violation. See Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (Apr. 18, 2017). The decision carries significant implications in the context of discovery violation jurisprudence as well as a curb on a district court’s inherent sanctioning authority.
By way of background, the litigation arose from the Haeger family’s action against Goodyear, alleging the failure of a Goodyear G159 tire caused the family’s motorhome to swerve off the road and flip over. Discovery in the case was contentious and lasted several years. A key issue in the contentious discovery process involved repeated requests for internal G159 tire testing, which Goodyear was persistently slow to respond to. On the first day of trial in April 2010, the parties informed the court that a settlement had been reached. Months after the settlement, the family’s lawyer discovered G159 tire testing from another lawsuit, which had not been produced in the subject litigation. The undisclosed G159 testing revealed the G159 tire “got unusually hot” at highway speeds. Id. at 1184. Goodyear conceded withholding the information despite a direct request for all testing regarding the subject model tire. Thereafter, the family sought sanctions (attorney’s fees and costs) for Goodyear’s knowing concealment, discovery fraud and bad faith litigation.
Arizona Senior District Court Judge Roslyn O. Silver found that Goodyear and its attorneys had “engaged in a ‘years-long course’ of bad-faith behavior.” Id. Exercising its inherent authority to sanction bad faith litigation, the district court awarded the Haeger family $2.7 million. Despite acknowledging that in the “usual case, sanctions ordered pursuant to a court's inherent power to sanction litigation misconduct must be limited to the amount of legal fees caused by that misconduct[,]” Judge Silver nevertheless determined that “the sanctionable conduct r[ose] to a truly egregious level . . . . [a]nd when a litigant behaves that badly . . . all of the attorneys' fees incurred in the case [can] be awarded . . . without any need to find a ‘causal link between [those expenses and] the sanctionable conduct.’” Id. at 1189 (alterations). In support of its award, the district court also concluded that full and timely disclosure of the withheld test results would likely have led Goodyear to settle the case much earlier.
Writing for a unanimous Court (with the exception of Justice Gorsuch who did not participate), Justice Elena Kagan stated: “A district court has broad discretion to calculate fee awards under [the bad faith litigation] standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.” Id. at 1184 (alteration). The Court emphasized that such sanctions must be compensatory rather than punitive in nature. Id. at 1186. “A sanction counts as compensatory only if it is ‘calibrate[d] to [the] damages caused by’ the bad-faith acts on which it is based. Id. (emphasis added). Not only did the Court find that the district court deviated from established standards and overstepped its inherent authority, but it also found that the Haeger family failed to establish the case would have settled had the testing been provided at the first instance or that Goodyear’s non-disclosure permeated the entire litigation as to justify an all-fees award.
This case is critically important for several reasons, which extend far beyond the facts of the case. The Supreme Court’s decision clearly delineates limitations on a district court judge’s authority to impose sanctions. The Haeger decision bolsters the causal link or but-for requirement between the alleged misconduct and the legal fees to be paid by an offending party. Moreover, the decision serves as a firm and realistic reminder to manufacturers and their counsel of the importance of carefully collecting, correlating and responding to discovery requests as well as maintaining consistency and uniformity in document production from one case to the next. The continuing duty in federal court to supplement discovery responses is also at the forefront of considerations in analyzing the facts of this case. It also highlights the potential and seemingly continual exposure for alleged discovery violations and/or failure to produce certain testing, documents or other things even post-settlement. Going forward, manufacturers and their counsel may want to consider including a clause/language waiving any post-settlement claims for discovery violations in the release and/or stipulation.
03.14.18 Florida Supreme Court Hears Argument on Daubert Standard Read Article >>
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