Two years ago, the Florida Legislature adopted the Daubert1 standard to govern the admissibility of expert testimony at trial. An expert witness is someone qualified by virtue of education, training or experience to render opinions that help a jury understand an issue generally thought to be beyond the knowledge of the average layperson. Under the prior standard, before the adoption of Daubert, an expert witness was typically permitted to express opinions at trial largely on the basis of the expert’s “say so.”

The Daubert standard raises the bar for admissibility and requires the Court to consider the soundness of the principles and methods employed by the expert, and to evaluate whether the expert can apply them reliably to the facts of the particular case. This imposes a “gatekeeping role” on judges and requires them to exclude an expert’s testimony when it is not supported by sound methods and principles applied reliably to the case.

In Florida, the Daubert standard is now codified at §90.702, Fla. Stat., which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

• The testimony is based upon sufficient facts or data;
• The testimony is the product of reliable principles and methods; and
• The witness has applied the principles and methods reliably to the facts of the case. §90.702, Fla. Stat. (2015).

Thus, Daubert and §90.702, Fla. Stat., together provide that a qualified expert may offer opinion testimony if it will assist the jury, is based on sufficient facts or data, and is the product of reliable principles and methods, applied reliably to the case. See §90.702, Fla. Stat.; Daubert, 509 U.S. at 589-95; see also Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1326-29 (11th Cir. 2014).

This Daubert standard applies to all expert testimony, and is not limited to only scientific or medical testimony. If an expert’s opinions do not meet the Daubert test, the expert should be stricken through a motion in limine or motion to strike filed prior to trial. However, it seems that even seasoned trial judges are grappling with applying Daubert and determining where exactly to draw the line for admissibility, especially when addressing motions to strike experts offering opinions that, for years, passed evidentiary muster.

The following is a short scorecard on how a few Florida trial courts have dealt with the issue of applying Daubert at the trial level:

1. In Yampol v. Schindler Elevator Corp., 2014 WL 7337779 (Fla. 11th Cir. Ct. 2014), a Miami-Dade county circuit court case, a resident sued both his condominium association and its elevator contractor, claiming the elevator was creating noise and structural vibrations within the building, disturbing his ability to peaceably enjoy his unit. Plaintiff identified an expert to express opinions about the potential causes. The Court found the expert’s testimony to be inadmissible under § 90.702, Fla. Stat., because it was “based on his pure opinion, and not based on sufficient facts or data, let alone reliable principles or methods that were reliably applied to the facts of this case.” The Court concluded that there was no reliable scientific support for the expert’s opinion and that “pure opinion or ipse dixit expert testimony is not admissible” under §90.702, Fla. Stat.”

2. The case of Cruz v. City of Tampa, 2014 WL 4473497 (Fla. 13th Cir. Ct. 2014), involved a motor vehicle negligence action in which Plaintiff’s expert, a chiropractor, testified that a low speed accident caused injuries to Plaintiff’s cervical spine. Defendant moved for an order excluding this testimony under the Daubert standard, and the court held an evidentiary hearing. The Court concluded that, although the chiropractor might be qualified to testify in other circumstances, his opinions in the instant case were inadmissible under Daubert because they were not based on sound methodology and, indeed, were “scientifically irresponsible.” The court pointed out that both parties had erroneously focused on the bare credentials of the witnesses and the Plaintiff was looking to introduce pure, unsubstantiated opinion testimony. That might have been okay under the old standard, the Court reasoned, but not under Daubert, which was intended “to prohibit in the courts of this state pure opinion testimony….” Thus, no matter how well-credentialed a witness, the Court said, it must evaluate whether “the testimony is based upon sufficient facts or data,” and whether “the testimony is the product of reliable principles and methods.”

3. In Warehouse 1050 Corp. v. Florida Sol Corp., 2014 WL 7715562 (Fla. 11th Cir. Ct. 2014), the Plaintiffs sued for trespass and negligence, alleging that a cable owned by one of the Defendants and installed by another caused roof damage, water leaks, and interior damage to their home. To support their claim, the Plaintiffs hired a certified roofing contractor as their expert witness. This expert had 49 years’ experience in the roofing business and was prepared to testify that the damage to the roof was caused by the improperly installed cable, to the exclusion of any other possibilities. The trial court analyzed all three subsections of § 90.702, Fla. Stat., and excluded the expert’s testimony. The court reasoned that the expert never applied any formula or method to the facts of the case. Additionally, the Court found that although the expert was a qualified roofer, he lacked the expertise to opine as to the cause of the roof damage. In reaching its decision, the court emphasized: “The question for the court, as gatekeeper, is whether the expert reliably applied the principles and methods to the facts of the case. In this case, [his] ‘expert’ opinion is nothing more than his opinion of the evidence that the jury will be hearing. His opinion is not based on any facts or data and he never applied any principles or methods to the facts in this case. It appears that in reaching his opinion, [the expert] did nothing more than what the jurors will be doing: considering the testimony and evidence. However, unlike the jurors, [he] is being paid for his opinion. And the danger of allowing him to share his conclusion with the jury is that it will be couched in the cloak of an ‘expert opinion.’” Therefore, the court granted the defense motion in limine to exclude the expert.

While it will likely take time before we see how Florida’s appellate court’s apply Daubert to particular types of experts and admissibility issues, it is already clear from recent appellate decisions that the District Courts of Appeal likewise will no longer tolerate pure opinion testimony under Daubert. See, e.g., Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 387 (Fla. 1st DCA 2014) (holding medical opinion testimony did not meet Daubert standard, where expert witness, when asked how he arrived at his opinions, explained that, “when I was asked and thought about it, that is the answer that I came up with,” and provided no insight into what principles or methods he used to reach his conclusions); Perez v. Bell S. Telecommunications, Inc., 138 So. 3d 492 (Fla. 3d DCA 2014) (affirming order striking opinion of mother’s treating physician, who provided the only causal link between workplace stress and the premature birth, as proposed testimony was pure opinion and did not meet requirements of Daubert test).

So what is the lesson here? In every case, with each proffered expert, it is important to be asking at the earliest stages of litigation questions such as: What methodology or study backs up the expert’s opinion? And was that methodology fairly applied to the facts of the case? It is important to evaluate and develop potential Daubert challenges early in the case, through targeted discovery calculated to bring these issues to the court’s attention. The earlier you start, the better, because you’ll need enough time to gather discovery, prepare a Daubert motion, and allow for a Daubert evidentiary hearing.

1 Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993).