Third DCA: Applying Daubert Under Florida Law in Perez v. Bell South Telecommunications, Inc.

05.15.14 | Permalink

Posted By: Armando G. Hernandez

The Third District Court of Appeal of Florida recently issued an opinion in Perez v. Bell So. Telecomm., No. 3D11-445, 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014),which represents the Third District’s first pronouncement applying Daubert under Florida law since the legislative amendment took effect on July 1, 2013, repudiating the archaic Frye standard and pure opinion testimony in favor of the more widely accepted Daubert standard.

The case involved a negligence suit brought by Osmany Anthony Perez, a minor, by and through his mother, Maria Franco Perez, against the mother’s employer, Bell South Telecommunications, for the premature birth of the minor as a result of placental abruption, which the Plaintiff’s expert opined was induced or caused by “work place stress.” *4. 

By way of background, Ms. Perez became pregnant while employed as a call center operator. *3. Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, classified Ms. Perez’s pregnancy as “high risk” on May 5, 2004. Id.  On July 30, 2004, Ms. Perez reported to Dr. Cardella being under a lot of stress at work. Id. Dr. Cardella provided Ms. Perez with a note to give to her employer placing a limitation of 40 hours on her work week and requesting frequent bathroom breaks due to the high risk nature of her pregnancy. Id. Less than two weeks later, Ms. Perez was fired for non-performance. Two days after her firing, she suffered a placental abruption and delivered her child at twenty weeks. *3-4. 

Dr. Cardella opined that “workplace stress,” exacerbated by Bell South’s alleged refusal to accommodate Ms. Perez’s medical condition, was the causal agent of the placental abruption and premature delivery. *4. At his deposition, Dr. Cardella essentially testified and conceded there was no way of ever knowing for sure what caused the placental abruption, his conclusions were merely his own personal opinion, his opinion was unsupported by credible scientific research, there were no studies or medical literature regarding workplace stress tied to placental abruption, and he had never spoken on the topic and was not aware of anyone who had. Given the untested, unverified, hypothetical, speculative, conjectural, and ipse dixit nature of his opinions, the trial court excluded his opinions under Frye

Since Dr. Cardella’s opinion testimony was the sole connection between the premature birth and Bell South, the trial court’s exclusion of his opinion testimony under Frye was the basis for granting summary judgment due to a lack of causal proof as a matter of law and fact.  Id. at *6. Ms. Perez appealed the adverse summary judgment ruling contending that Dr. Cardella’s testimony was admissible as “pure opinion testimony” under Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007). Following the Frye and summary judgment rulings, but prior to deciding the appeal, the Florida Evidence Code was amended on July 1, 2013.

The case presented an interesting procedural conundrum given the passing of the legislative amendment to Florida’s Evidence Code after the trial of the underlying suit but before the appeal. Such a consideration was one of the many inquires practioners and judicial minds contemplated in the wake of the amendment. This case makes clear that Daubert applies to pending cases on appeal that were previously decided under Frye. It also clarifies the retroactive application of the amendment. *4 (holding that “section 90.702 of the Florida Evidence Code indisputably applies retrospectively”). 

The Third District found Dr. Cardella’s opinion testimony inadmissible under both the Frye and Daubert standards. Chief Judge Shepherd writing for the panel (which included Judges Wells and Rothenberg) explained that Ms. Perez’s contention on appeal regarding pure opinion testimony had been expressly prohibited in the recent amendment to the Florida Evidence Code. *8. The Florida Legislature went as far as making specific reference to the seminal pure opinion case of Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007) in the amendment. As of July 1, 2013, pure opinion testimony is no longer permissible in Florida courts. Id. All expert testimony must now satisfy the requirements of Daubert

Despite recognizing the conceptual debate over whether Frye or Daubert is stricter or more rigid, the Third District noted that “[t]he legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.” *10. To this end, the Third District explained that the “touchstone of the scientific method is empirical testing – developing hypotheses and testing them through blind experiments to see if they can be verified.” *11. The court also discussed that “general acceptance in the scientific community,” which were the buzzwords under Frye, is now simply one of several factors to consider under Daubert,but is in no event a sufficient basis in itself for admissibility. *12. Under Daubert, there is no place for “subjective belief and unsupported speculation.”  Id. 

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3d DCA Rules Florida's Proposal for Settlement Laws Conflict With Federal Maritime Law

04.14.14 | Permalink

Posted By: Armando G. Hernandez

On April 9, 2014, the Third District Court of Appeal of Florida issued an en banc opinion in Royal Caribbean Cruises, Ltd. v. Cox, Case No. 3D09-2712. The case put to rest decades of unrest and tension between the status of Florida’s offer of settlement law as interpreted by the Third District and federal maritime law. The Third District finally aligned itself with its sister courts and Florida’s federal courts in holding that Florida’s offer of judgment laws conflict with federal maritime law and a prevailing party is not entitled to recover attorney’s fees. 

There is a protracted procedural history to this matter.  The plaintiff, Mr. Bryon Cox, brought suit against Royal Caribbean in the underlying suit to recover for personal injuries sustained while employed aboard a Royal Caribbean vessel. Mr. Cox served an offer of judgment pursuant to Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442. Royal Caribbean moved to strike the offer of judgment, arguing that §768.79 conflicted with federal maritime law. In response, Mr. Cox cited Royal Caribbean Corp. v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992) (holding that Florida statute providing for confidentiality of mediation proceedings was not preempted by maritime law and finding “no conflict between Florida’s rule of law regarding offers of judgment and federal maritime law.”). The case proceeded to trial and the jury found in favor of Mr. Cox, who sought attorney’s fees based on his offer of judgment. The trial court judge granted an award of $245,856.87 in attorney’s fees pursuant to plaintiff’s offer of judgment. 

The original appeal was taken from the trial court’s order, which the Third District affirmed, relying on the rationale enunciated in Modesto. Royal Caribbean moved for a rehearing en banc. The en banc panel consisted of Chief Judge Frank Shepherd and Judges Well, Suarez, Rothenberg, Lagoa, Salter, Emas, Fernandez, Logue and Scales. On rehearing, Royal Caribbean argued that the Third District should recede from the ruling in Modesto

By way of background, and contrary to Modesto,several other state and federal courts have held that “under federal admiralty law, the prevailing party is not entitled to attorney’s fees . . . even when a state statute establishes an entitlement to fees.” See Nicoll v. Magical Cruise Co., 110 So. 2d 98, 98 (Fla. 5th DCA 2013) (citing Misener Marine Constr., Inc. v. Norfolk Dredging Co., 594 F.3d 832, 841 (11th Cir. 2010) (explaining that federal maritime law follows the American rule regarding attorney’s fees); Texas A&M Research Found. v. Magna Transp. Inc., 338 F.3d 394, 405 (5th Cir. 2003); Am. Nat'l Fire Ins. Co. v. Kenealy, 72 F.3d 264, 270 (2d Cir. 1995); Southworth Mach. Co. v. F/V Corey Pride, 994 F.2d 37, 41 (1st Cir. 1993); Su v. M/V S. Aster, 978 F.2d 462, 475 (9th Cir. 1992); Sosebee v. Rath, 893 F.2d 54, 56–57 (3d Cir. 1990)); see also Garan, Inc. v. M/V Aivik, 907 F.Supp. 397, 400 (S.D. Fla. 1995) (finding that Modestomisconstrued the holding in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), involving an exception for a discretionary award of attorneys' fees in the maritime context when the non-prevailing party has acted in bad faith).

Given the uncertainty Modesto generated, the issue of whether state-based recovery of attorney’s fees is compatible with federal maritime law was ripe for clarification and decision. Ultimately, the Third District Court of Appeal receded from Modesto and finally clarified that Florida’s offer of judgment statute conflicts with federal maritime law. The Third District stated a prevailing party is not entitled to attorney’s fees under federal maritime law absent certain exceptional circumstances (i.e. bad faith) even when a state statute establishes entitlement. 

One of the overarching and central tenets of maritime law is uniformity, which the recent en banc decision aims to serve. See Texas A&M Research Found., 338 F.3d at 405. The decision has the practical and immediate impact of rendering any already filed or pending proposals for settlement relying on Modesto in a maritime action a nullity and non-enforceable. This ruling is especially significant given the prevalence of forum selection clauses in Miami, which is the epicenter of the cruising industry. The en banc decision is a neutralizer for both plaintiffs and defendants as the offer of judgment rule and statute can apply pressure and encourage settlement on both sides. The recent decision also impacts the already strategic choice-of-law decision and manner of pleading between admiralty and state substantive law. 

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Beware of Attorney Charging Liens

11.06.13 | Permalink

Posted By: Damien A. Orato

Attorneys’ fee liens, commonly referred to as “charging liens,” pose a difficult problem for defendants.  Increasingly, plaintiffs are represented by multiple attorneys due to plaintiffs switching attorneys or attorney referrals.  This is particularly true in product liability cases where it is typical for the original plaintiff’s attorney to refer the case to an attorney specializing in product liability.  Sometimes former plaintiff’s attorneys file a formal notice of lien in the lawsuit.  However, other times the former plaintiff’s attorney does not file a formal lien notice with the court.  When a settlement is reached it is typical for the defendant to require the plaintiff to resolve all liens, including any attorney charging liens, as a condition of the settlement.  However, if the plaintiff and current plaintiff’s attorney fail to resolve a charging lien, then the former attorney claiming a charging lien may seek to collect from defendant either in the original action or in a separate action.


Under Florida law, a former attorney’s charging lien is enforceable against a defendant.  Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1385 (Fla. 1983).  When a defendant has notice of a charging lien before settlement of the case, the defendant may be held liable to the former plaintiff’s attorney.  The Florida Supreme Court has held that “there are no requirements for perfecting a charging lien beyond timely notice.”  Id.  Florida courts have found that “to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.”  Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986).  While courts have not defined what constitutes “pursuit” of the lien, the former attorney is probably not required to file a formal notice of lien with the Court to perfect the charging lien.  Any notice of the charging lien, regardless of form, at any stage of the lawsuit, may be sufficient to hold a defendant liable for the charging lien. 


Because of the risk that charging liens pose to defendants, it is important that defendants identify any potential charging liens.  Defendants should include an indemnification provision in the settlement agreement that requires the plaintiff to indemnify the defendant against any charging liens.  However, this provision often provides limited protection, because the plaintiff has exhausted the settlement money and lacks other assets.  Florida Bar Rules prevent defendants from including indemnity provisions in settlement agreements that would require the settling plaintiff’s attorney to indemnify the defendant should a lienholder assert a claim. Therefore, when significant settlement sums are involved, a defendant should take steps to ensure that the charging liens are resolved as part of the settlement reached with the settling plaintiff’s attorney.  For example, a defendant can refuse to disburse the settlement funds until the plaintiff proves that any charging liens have been resolved.  By taking steps to ensure that plaintiff’s and settling plaintiffs’ attorneys comply with their duties to resolve any liens, defendants can minimize their exposure to charging liens. 


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Recent Updates

05.15.14  Third DCA: Applying Daubert Under Florida Law in Perez v. Bell South Telecommunications, Inc.  Read Article >>

04.14.14  3d DCA Rules Florida's Proposal for Settlement Laws Conflict With Federal Maritime Law  Read Article >>

11.06.13  Beware of Attorney Charging Liens  Read Article >>

06.04.13  What Lies Ahead as Florida Transitions to Daubert  Read Article >>

05.02.13  Florida's 4th DCA Underlines Importance of Rules Governing Depositions of Designated Corporate Representatives  Read Article >>

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