IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D Fla. Bar No

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D Fla. Bar No E.I. DUPONT DE NEMOURS & CO., INC., etc., et al. vs. Petitioners, CLAIRE J. SIDRAN, et al., Respondents. / BRIEF AND APPENDIX OF RESPONDENTS IN OPPOSITION TO JURISDICTION (Conflict Certiorari) ARNOLD R. GINSBERG, ESQ. Ginsberg & Schwartz Two Datran Center, Suite So. Dadeland Boulevard Miami, Florida (305) and- EDWIN C. RATINER, ESQ. ROBERT J. RATINER, ESQ Aviation Avenue, Ste 600 Miami, Florida 33133

2 TABLE OF CONTENTS (305) Attorneys for Respondents Page INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT AND STANDARD FOR REVIEW...4 ARGUMENT AND STANDARD FOR REVIEW CONCLUSION...9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX...A.1 - A.16

3 Cases TABLE OF CITATIONS AND AUTHORITIES Page ARKIN CONSTRUCTION COMPANY v. SIMPKINS,...99 So.2d 557 (Fla. 1957) 6 BRITO v. COUNTY OF PALM BEACH, So.2d 109 (Fla. App. 4 th 1998) 7 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES v. NATIONAL ADOPTION COUNSELING SERVICE, INC., So.2d 888 (Fla. 1986) 4 FLORIDA POWER & LIGHT CO. v. TURSI, So.2d 995 (Fla. App. 4 th 1999) 3, 4 FRYE v. UNITED STATES, 293 F.1013 (D.C. Cir. 1923)...5 HAAS v. ZACCARIA, 659 So.2d 1130 (Fla. App. 4 th 1995)...8 HADDEN v. STATE, 690 So.2d 573 (Fla. 1997)... 5, 6, 7 MARSH v. VALYOU, 917 So.2d 313 (Fla. App. 5 th 1005)... 3, 4 SCHINDLER ELEVATOR CORPORATION v. CARVALHO, So.2d 1103 (Fla. App. 4 th 2005) 7 YOUNG-CHIN v. CITY OF HOMESTEAD, So.2d 879 (Fla. App. 3 rd 1992) 7 Other Authorities Section , Fla. Stat. (2001)...7 Section , Fla. Stat. (2001)...7 Section , Fla. Stat. (2001)... 7 I. ii

4 INTRODUCTION The Respondents, Claire J. Sidran and Phillip Sidran, individually and Sidran Orchids, Inc., as successor in interest to Sidran Orchids, were the Plaintiffs in the trial court and were the Appellants in the Third District. The Petitioners were the Defendants/Appellees. In this Brief of Respondents the parties will be referred to as the Plaintiffs and the Defendants and, alternatively, by name. The symbol A will refer to the Appendix accompanying this Brief. All emphasis has been supplied by counsel unless indicated to the contrary. II. STATEMENT OF THE CASE AND FACTS As one of its defenses to the Plaintiffs lawsuit, the Defendants asserted that the damage to Plaintiffs orchids was caused not by its product but by water contamination. As the Third District wrote: Specifically, Dupont introduced evidence which it claimed would demonstrate that the orchid damage was caused by (a) groundwater contamination in the Suniland area, or (b) the Sidrans misuse of another fungicide, Kocide, or (c) both. Dupont is, of course, allowed to defend in this way, denying any negligence or product defect and asserting that the actual cause of the damage to the orchids was the fault of something else - - groundwater contamination or misuse of a different product. See Haas v. Zaccaria, 659 So.2d 1130, 1132 (Fla. 4 th DCA 1995); Carnival Cruise Lines, Inc. v. 2

5 Levalley, 786 So. 2d 18, 19 (Fla. 3d DCA 2001). (A.11). In support of its water contamination defense, the Defendants presented four witnesses, Livingstone, Kottke, Fraxedas, and Coble. In speaking to their collective testimonies, the Third District wrote: * * * Relevant evidence is evidence which tends to prove or disprove a material fact. See , Fla. Stat. (2001). However, as discussed in Section , Fla. Stat. (2001); [r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. Notably, the testimony adduced at trial is devoid of any connection between the well water contamination and the damages sustained to the Sidrans orchid plants....thus, the probative value of this evidence was substantially outweighed by the danger of misleading the jury as to whether those contaminants had any effect on the orchids. * * * (A. 6) Simply stated, and contrary to what the Defendants argue herein, not one of the four witnesses (including Coble ) was able to provide:... any connection between the well water contamination and the damages sustained to the Sidrans orchid plants... (A. 6). Regarding the testimony of Dr. Coble, he provided the rather unremarkable (abstract) opinion that: 3

6 ...the higher the level the contaminant, the more likely damage would occur... (A. 6, 7). But, as the Third District found, Dr. Coble did not (and could not) relate any such higher level (of contaminant) to the Plaintiffs plants because as to the matter of water contamination he did not do anything - - he performed no experiment, saw no water samples, and he had no idea whether [even at 1.7 micrograms per liter] dry cleaning contaminant could be harmful to orchids (A. 6, 7). More importantly, and as the Third District found from the record, he did not relate his opinion, to the facts of the instant case. (A.6) Ignoring the disclosures on the face of the subject opinion, the Defendants claim conflict with cases such as MARSH v. VALYOU, 917 So.2d 313 (Fla. App. 5 th 2005) and FLORIDA POWER & LIGHT CO. v. TURSI, 729 So.2d 995 (Fla. App. 4 th 1999) stating, arguing, and concluding: Dr. Coble should have been able to testify regarding his opinion on causation because his opinion was based on his experience and training as a plant expert and not based on novel scientific evidence.... See: Defendants brief at page 7. In essence, the Defendants suggest pure opinions are not subject to judicial scrutiny, need not relate to the facts of the case in which the opinion is provided, and are immune from examination under the Florida Evidence Code! Defendants 4

7 suggest pure opinions are ipso facto admissible! Because the instant cause has nothing to do with the issues raised in MARSH, supra, and TURSI, supra, and everything to do with well settled principles of Florida law governing the minimum evidentiary requirements for all evidence, [including pure opinion testimony] this Court should deny review herein. III. SUMMARY OF THE ARGUMENT AND STANDARD FOR REVIEW This Court would have jurisdiction only if the Third District had applied a recognized rule of law to reach a conclusion that conflicted with another case involving substantially the same controlling facts, or if the Third District had announced a rule of law that was not in harmony with prior announcements. H.R.S. v. NATIONAL ADOPTION COUNSELING SERVICE, INC., 498 So.2d 888 (Fla. 1986). The subject opinion announces no new rule of law. The opinion thoroughly and comprehensively explores the specific deficiencies, legal and factual, in the testimonies presented by the Defendants in support of their water contamination defense. Because it is the Defendants, not the Third District, who ignore precedent from this Court, precedent which is totally consistent with the opinion rendered herein, it should be found there is no conflict. 5

8 IV. ARGUMENT AND STANDARD FOR REVIEW Contrary to the suggestions made by the Defendants at page 4 of their Brief (wherein they phrase the issue before this Court) the Third District did not hold... that the testimony of an indisputably qualified expert witness has to be supported by scientific testing... What the Third District observed was that Dr. Coble did not perform (as opposed to was required to perform) any tests/studies and, consequently, what opinion he did offer: Had no basis in fact or law and did not relate to the facts of the instant case... (A. 6). The analysis undertaken by the Third District, as well as the result it reached, is totally consistent with this Court s opinion in HADDEN v. STATE, 690 So.2d 573 (Fla. 1997). In HADDEN, this Court reminded that Florida follows the test set out in FRYE v. UNITED STATES, 293 F.1013 (D.C. Cir. 1923):... as the proper standard for admitting novel scientific evidence in Florida So.2d at page 578. In HADDEN, this Court further reminded that the Frye standard (for admissibility of novel scientific evidence): 6

9 ... is not applicable to an expert s pure opinion testimony which is based solely on the expert s training and experience (citation omitted). While an expert s pure opinion testimony comes cloaked with the expert s credibility, the jury can evaluate this testimony in the same way that it evaluates other opinion or factual testimony So.2d at pages 579 and 580. Contrary to what the Defendants infer, pure opinion testimony is not ipso facto admissible! In HADDEN, in speaking to the admissibility of an expert s pure opinion testimony, this Court stated:... when determining the admissibility of this kind of expert -opinion testimony which is personally developed through clinical experience, THE TRIAL COURT MUST DETERMINE ADMISSIBILITY ON THE QUALIFICATIONS OF THE EXPERT AND THE APPLICABLE PROVISIONS OF THE EVIDENCE CODE So.2d at page 580. The above is totally consistent with long standing Florida law, now codified in the Florida Evidence Code. See, for example, ARKIN CONSTRUCTION COMPANY v. SIMPKINS, 99 So.2d 557 (Fla. 1957) wherein this Court stated: It is elementary that the conclusion or the opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion. 99 So.2d at page

10 In accord: SCHINDLER ELEVATOR CORPORATION v. CARVALHO, 895 So.2d 1103 (Fla. App. 4 th 2005); BRITO v. COUNTY OF PALM BEACH, 753 So.2d 109 (Fla. App. 4 th 1998); and, YOUNG-CHIN v. CITY OF HOMESTEAD, 597 So.2d 879 (Fla. App. 3 rd 1992). Reviewing the expert opinion of Dr. Coble in light of several sections of the Florida Evidence Code, See: , and , Fla. Stat. (2001), as it was required to do under HADDEN, supra, the Third District found:... the testimony adduced at trial is devoid of any connection between the well water contamination and the damages sustained to the Sidrans orchid plants... (A.6). Specifically, and again as to Dr. Coble, the Court found from the evidence in the record that his opinion:... did not relate to the facts of the instant case... (A.6). The District Court did not disallow the opinion testimony of Dr. Coble for the reasons which Defendants suggest, to wit: that the testimony of an undisputably qualified expert witness has to be supported by scientific testing. Rather, Dr. Coble s (pure opinion) testimony was disallowed because it could not pass the minimum, evidentiary requirements of the Florida Evidence Code. See: HADDEN, supra; and Sections , and , Fla. Stat. (2001). 8

11 There is no conflict with any of the Frye / pure opinion cases cited by the Defendants, and the Third District s opinion is consistent with (settled) Florida law. Lastly, there is no conflict with HAAS v. ZACCARIA, 659 So.2d 1130 (Fla. App. 4 th 1995). Here, the Third District acknowledged the rule that alternative cause evidence is admissible where the alleged alternate cause of the Plaintiffs damages is shown to be possible, See: A.11. Where the instant cause differs from ZACCARIA is that in ZACCARIA, not only did the expert testimony establish that the end result was possible, the opinion related such possibility to the circumstances of the case! In the instant cause, as may be seen from the face of the subject opinion, the dispositive factor was not whether the end result was possible or probable but, that, irrespective of what burden of proof was utilized ( possible or probable ) Dr. Coble s testimony:... did not relate to the facts of the instant case... (A. 6). Consequently, it should be found that the instant cause does not conflict with HAAS, supra. For the stated reasons, discretionary review should be denied. V. CONCLUSION 9

12 Based upon the foregoing reasons and citations of authority, the subject request for discretionary review should be denied. Respectfully submitted, GINSBERG & SCHWARTZ Two Datran Center, Suite So. Dadeland Boulevard Miami, Florida (305) and- EDWIN C. RATINER, ESQ. ROBERT J. RATINER, ESQ Aviation Avenue, Ste 600 Miami, Florida (305) Attorneys for Respondents By: Arnold R. Ginsberg 10

13 CERTIFICATE OF SERVICE I DO HEREBY CERTIFY that a true copy of the foregoing Brief was mailed to all counsel of record this 30 th day of March, CINDY L. EBENFELD, ESQ. Hicks & Kneale, P.A. 799 Brickell Plaza, 9 th Floor Miami, Florida (305) Attorneys for Petitioners SHERRIL M. COLOMBO, ESQ. EDWARD A. MOSS, ESQ. PAUL T. REID, ESQ. Shook, Hardy & Bacon, L.L.P. Miami Center, Suite South Biscayne Boulevard Miami, Florida (305) Attorneys for Petitioners GARY PAPPAS, ESQ. Carlton, Fields, et al NationsBank Tower 100 S.E. Second Street Miami, Florida (305) Attorneys for Petitioners Arnold R. Ginsberg CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the foregoing Brief was prepared in accordance with the rule requiring 14 point Times New or 12 point Courier New. 11

14 Arnold R. Ginsberg APPENDIX 12

15 INDEX TO APPENDIX Opinion, filed November 26, A. 1 Opinion, filed January 11, 2006 On Rehearing Denied A. 9