Florida's Daubert Jurisprudence Gradually Continues To Evolve: First District Decision Emphasizes Timeliness of Daubert Motions & Other Nuances
On May 29, 2015, Florida's First District Court of Appeal issued a per curiam opinion thoroughly examining the seemingly new Daubert test as a matter of Florida law. See Booker v. Sumter Cnty. Sheriff's Office/N. Am. Risk Servs., No. 1D14-4812, 2015 WL 3444359 (Fla. 1st DCA May 29, 2015). The appeal was taken from an order of the Judge of Compensation Claims denying the Appellant-claimant's workers' compensation benefits related to an accident that took place on May 23, 2013. Id.at *1. The majority of the issues the Appellant-claimant raised on appeal were challenges to the judge's Daubert rulings.
The First District initially addressed the background of the Daubert test in its early development as a matter of Florida law. The Court pointed to Giaimo v. Florida Autosport, Inc., 154 So. 3d 385 (Fla. 1st DCA 2014) to establish Florida's adoption of the Daubert standard in Florida Statute Section 90.702 (2013). Id.This aspect of the Booker decision serves as a useful primer onDaubert as a matter of Florida law and citation resource for a standard of review.
The First District then turns to a less pondered issue – but by no means unimportant – relating to the timeliness of a Daubert challenge. In fact, the decision exemplifies the grave importance and critical consequences bearing on the temporal considerations of when to bring a Daubert challenge. One of the Appellant-claimant's main issues on appeal was the judge's ruling that the Appellant-claimant's Daubertobjection to the admissibility of Appellees' independent medical examiner's opinions was untimely. Id.
Focusing on a trial court's ruling on the timeliness of aDaubert challenge and the admissibility of expert testimony, the First District emphasized the role of the trial court as "gatekeeper": "When engaging in aDaubert analysis, the judge's role is that of the evidentiary "gatekeeper," that is, the one who determines whether the expert's testimony meets the Daubert test. Id.(citing Daubert, Kumho, and Joiner). Litigators generally relate the "gatekeeper" function of the trial court with the qualifications, methodology, and reliability elements typically litigated with Daubert challenges. However, the Booker decision makes readily apparent that there is more – the timeliness of the Daubert challenge as a threshold and procedural matter. The Court further expounds that "[f]ederal courts, which have long relied on the Daubertstandard, have held that a trial court has broad discretion in determining how to perform its gatekeeper function when addressing the admissibility of expert testimony." Id.(citing Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 780 (11th Cir. 2004))(emphasis added). Therefore, a trial court's determination that a Daubert challenge was not timely raised is reviewed for an abuse of discretion.
Applying the aforementioned principles to the case at hand, and against that background, the Booker Court held that "Florida has long had . . . case law addressing the relevant procedural matters such as the necessity of raising timely objections . . . ." Id.at *2 (citing Dirling v. Sarasota Cnty. Gov., 871 So. 2d 303, 304 (Fla. 1st DCA 2004)). Prior to the enactment of the Daubert standard as part of the Florida Evidence Code, Florida law focused on when the party or litigant "became aware of the basis for the opinion" for purposes of determining the timeliness of a Daubert challenge, which is more or less analogous to the well-known discovery rule for purposes of statutes of limitation (i.e. knew or should have known). See id. (emphasis supplied).
So when is a Daubert objection/challenge timely? The First District gave the example that if the basis for an expert opinion being scientific was not discovered until a final hearing, then a motion raised contemporaneously at the final hearing would be considered timely. See id. However, the facts in Bookerwere not such. In Booker, the Appellant-claimant became aware of the basis for the opposing expert's opinions when the doctor provided his report for the independent medical examination ("IME") well before the challenge. Id.The Appellant-claimant's "awareness" was then reinforced a second time during the IME doctor's deposition – also well before the actual challenge. Despite all of the above-referenced notice, the Appellant-claimant did not raise a Daubertchallenge until two weeks before the final hearing. Id.The Booker Court held that the Appellant-claimant "should have raised [a] Daubert challenge when the report was received, or promptly thereafter, and certainly by the time of the . . . . deposition." Id.
Moreover, the Booker Court disapproved of the foot-dragging tactic of waiting until last minute to raise aDaubert challenge as to not allow the opposing party ample opportunity to address and/or cure any perceived deficiencies in the expert testimony as matters or functions of fairness, even playing-field, notice, and judicial economy. Along the same lines, the Court directly addressed the sufficiency of a Daubertchallenge, harping on the need to have a specific basis for the challenge, citations to conflicting medical literature and conflicting expert testimony, etc. Id.The Court also noted that pure opinion testimony is no longer admissible in Florida under the Daubertstandard. Id.at *3. Lastly, the Court discussed the judicial notice exception to a Daubert challenge, which generally posits that a trial court may take judicial notice of proposed expert testimony "if the expert testimony has been deemed reliable by an appellate court." Id.at *4 (relying on a Kentucky case). Application of the judicial notice exception arguably relieves the burden of the proponent of the objectionable expert testimony and then shifts the burden to the opponent of the expert testimony to prove that such evidence is otherwise flawed or inadmissible under the governing standard. Id.
In sum, if not timely brought, a Daubert challenge can be barred within the sound discretion of the trial court. Extending beyond the worker's compensation context, it is critical to ensure that there are clear and firm deadlines for Daubert challenges in the trial order for all cases. When bringing a Daubert challenge, a litigant must provide specific, detailed bases to put the opposing party on notice. Litigators should be mindful of precedent with regard to specific experts as well as specific areas of proposed expert testimony for purposes of judicial notice arguments. Practioners must also be mindful of properly preparing experts regarding the now prohibited pure opinion testimony.
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