Will Your Expert Evidence be Admitted? I Don t Know Ask Your Judge. presented by Suzanne M. Driscoll, Esq. Shutts & Bowen LLP Fort Lauderdale, FL

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1 Will Your Expert Evidence be Admitted? I Don t Know Ask Your Judge. presented by Suzanne M. Driscoll, Esq. Shutts & Bowen LLP Fort Lauderdale, FL Originally authored in August 2013 and updated March 2015 The Adoption of Daubert Changes the Rules of Admissibility in Florida State Courts. Trial courts have always had the responsibility to evaluate the admissibility of proffered expert testimony. The test used to assess the testimony however varies among jurisdictions. Florida has been a prime example of the split of authority between the state and federal courts. Despite the United State Supreme Court s 1997 decision in Daubert, which replaced the long heralded Frye 1 test as the standard for the admissibility of expert testimony with what became known as the Daubert standard, 2 Florida state courts, with the blessing of the Florida Supreme Court, 3 continued to apply the Frye test to assess expert testimony. It was not until the passage of 2013 Florida House Bill 7015 amending sections and of the Evidence Code (effective July 1, 2013) that Florida state courts were given their marching orders to get in line with Daubert. 1 Frye v. U.S., 293 F (D.C. Cir. 1923). 2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 3 See Marsh v. Valyou, 977 So.2d 543 (Fla. 2007): Despite the Supreme Court's decision in Daubert, we have since repeatedly reaffirmed our adherence to the Frye standard for admissibility of evidence. See, e.g., Ibar v. State, 938 So.2d 451, 467 (Fla.2006) ( Florida courts do not follow Daubert, but instead follow the test set out in Frye. ), cert. denied, 549 U.S. 1208, 127 S.Ct. 1326, 167 L.Ed.2d 79 (2007); Brim v. State, 695 So.2d 268, (Fla.1997) ( Despite the federal adoption of a more lenient standard in [ Daubert ], we have maintained the higher standard of reliability as dictated by Frye. ); Hadden v. State, 690 So.2d 573, 578 (Fla.1997) ( Our specific adoption of that test after the enactment of the evidence code manifests our intent to use the Frye test as the proper standard for admitting novel scientific evidence in Florida, even though the Frye test is not set forth in the evidence code. ); Flanagan v. State, 625 So.2d 827, 829 n. 2 (Fla.1993) ( We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. However, Florida continues to adhere to the Frye test for admissibility of scientific opinions. ) (citation omitted).

2 What was Frye? During his trial for second degree murder, James Alphonso Frye offered an expert to testify to the results of an early form of the polygraph test that he administered on Frye in support of Frye s innocence. His expert, William Marston, an attorney and well qualified research psychologist, had done considerable empirical research on the physiological effects of lying. The trial court refused to allow the testimony. In affirming the exclusion of the test results, the appellate court reasoned that because the polygraph test had not yet gained general acceptance and scientific recognition among physiological and psychological authorities, its exclusion was proper. Thus, the Frye general acceptance within its field test was born. The Frye test ultimately became the dominant standard for the admissibility of scientific evidence across the Country. Under the Frye test, judges defer to the conclusions of some select group of professionals to determine whether the methodology and resulting expert opinion is generally accepted in the scientific community. This inquiry requires little sophistication or familiarity with scientific methodology on the part of the court. Judges are prone to asking the testifying experts whether the basis of their opinions is generally accepted by their peers or relying on other courts who have previously allowed the same type of testimony as evidence of its general acceptance. The courts rarely undertake an independent examination to determine the answer. And, even if they did, the results can be manipulated based upon the group of scientists determined to be in the pertinent field. Frye has also been criticized because it requires a waiting period for otherwise valid scientific techniques to become generally accepted. These criticisms among others have increasingly led state courts in various jurisdictions, which now

3 include Florida, to adopt Daubert and the standard codified in the Federal Rules of Evidence, Rules 701, 702 and 703 (2000) Florida House Bill 7015 The revisions to sections and effectuated by HB 7015 are as follows: Testimony by experts. 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: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case, however, the opinion is admissible only if it can be applied to the evidence at trial Basis of opinion testimony by experts. The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert s opinion substantially outweighs their prejudicial effect. The intent of the Florida legislature in the adoption of HB to abolish the Frye standard - is unmistakably clear in the text of the bill: Whereas, by amending s , Florida Statutes, to pattern it after Rule 702 of the Federal Rules of Evidence as amended in 2000, the Florida Legislature intends to adopt the standards for expert testimony in the courts of this state as provided in Daubert.and to no longer apply the standard in Frye, and Whereas, by amending s , Florida Statutes, the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony (emphasis added). 4 According to Modern Scientific Evidence: The Law of Science of Expert Testimony, 1:7 ( Ed.), 30 states in varying degrees have accepted the principles of Daubert.

4 The Daubert Argument In Daubert, the Court was called upon to determine the standard for admitting expert scientific testimony in a federal trial. 5 Daubert at 582. At the trial level, the Petitioners evidence which concluded that Bendectin could cause birth defects was ruled inadmissible because the type of analysis utilized by their experts had not been published or subjected to peer review. The Court of Appeals for the Ninth Circuit affirmed finding that the methodology was not shown to be generally accepted as a reliable technique. The United States Supreme Court granted certiorari because of a sharp divide that existed among the courts regarding the proper standard for the admission of expert testimony. In Daubert, the Petitioners argued that the common law Frye standard, which predated the adoption of the Federal Rules of Evidence by about 50 years, was superseded by Rule 702 (1993). The Court agreed and in doing so announced that it was the obligation of the trial judge to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. 6 Daubert at 589. Accordingly, Daubert expanded the judges responsibilities for determining the admissibility of scientific expert testimony to include a determination that the scientific basis for the testimony is valid. Court s routinely hold preliminary hearings or Daubert hearings in order to assess the validity of the proffered evidence. The Daubert Court made it clear that the burden of proof is upon the proponent of the exert testimony by the preponderance of the evidence. The opponent does not have the burden of proving to the court that the witness does not meet the Daubert standard but only need make a showing that the 5 The Daubert standard was further developed in two subsequent cases, General Elec. Co. v. Joiner, 522 U.S. 136 (1997) and Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999) and ultimately codified in the Federal Rules of Evidence in These cases are frequently referred to as the Daubert trilogy. 6 While Daubert dealt specifically with scientific knowledge, it is important to note that Rule 702 and , F.S., also apply to technical or other specialized knowledge. The holding in Kumho Tire determined that the Daubert requirement extends to non-scientific expert testimony.

5 objection is not frivolous in order to trigger a hearing. Trial court decisions have been reversed for failing to hold Daubert hearings 7 or to otherwise properly demonstrate by specific finding of fact on the record that it has performed its duty to evaluate the relevance and scientific basis for the proffered expert testimony. 8 What are the Daubert Standards for Determining Validity of Evidence? The Daubert opinion reasoned that in addition to the requirement of relevancy, factors that may be considered in determining whether the methodology underlying the expert testimony is scientifically valid include: (1) whether the methodology or technique can (and has been) tested, the aim of which is to see if the theory can or has been falsified. Not all theories require the necessity of testing particularly in factually unique or nonrecurring scenarios (i.e. fire causation; the field of arson investigation does not have a strong tradition of hypothesis testing. See case cited in FN 8); (2) whether the methodology or technique has been subjected to peer review and publication; (3) the known rate of error for the methodology or technique. This, of course, only applies to particular scientific methods; and (4) the degree to which the methodology or technique has gained acceptance in the scientific community. The Daubert Court emphasized that the trial court s inquiry is a flexible one but it must focus solely on the principles and methodology, not on the conclusions that they generate. Daubert at 595. As pointed out by the Kumho Court, there are many different kinds of experts, and many different kinds of expertise so, it is the form of the expertise that will dictate what factors to use in assessing the reliability of the evidence. 7 See U.S. v. Smithers, 212 F.3d 306 (6 th Cir. 2000) 8 See Bitler v. A.O. Smith Corp., 391 F.3d 1114 (10 th Cir.2004)

6 Daubert s Application to Eminent Domain Prior to its Adoption in Florida Not surprisingly, a survey of reported eminent domain decisions nationally involving Daubert challenges revealed most were related to appraisal testimony. For cases holding exclusion was proper, see Mississippi Transportation Comm n v. McLemore 9 (trial court erred in denying motion in limine and admitting appraiser testimony based upon method that had not been tested, not subjected to peer review, not the subject of publication, or subject to controlling standards); Midwestern Gas Transmission Co. v Acres in Sumner County, TN 10 (Motion in limine granted where appraiser impermissibly appraised property as though the highest and best use of the property had already been realized); Gulf South Pipeline Co., LP v. Pitre 11 (Both parties appraisers testimony relating to diminution of remainder value failed a Daubert analysis because neither used time-tested techniques, were supported peer review or publications, and/or utilized industry standards generally accepted. ). For cases holding exclusion was not proper, see United States v Acres of Land 12 (Court erred in excluding the owner s engineer and appraiser by applying too stringent a reliability test under Daubert); Adcock v. Mississippi Transportation Comm n 13 (Trial court did not err in allowing appraiser to testify based upon established appraisal methods); Tunica County v. Matthews 14 (The focus of the reliability analysis must rest solely on the principles and methodology, not on the conclusions they generate ). See also, In re Southeastern Milk Antitrust Litigation 15 ( Unless a comparable is far So.2d 31 (Miss. 2004). This case presents an in depth discussion of the Daubert standards WL (M.D. Tenn) So.3d 494 (Miss. 2010) F.3d 1074 (5 th Cir. 1996) So.2d 942 (Miss. 2008) So.2d 209 (Miss. 2006) WL (E.D. Tenn.). While not an eminent domain case, it analogizes business comparables to the garden-variety eminent domain case involving comparable sales.

7 outside the realm of reason and common sense that determination [of comparability] should be left to the jury ). Id. at *1. In eminent domain circles, the pending question is what effect, if any, the adoption of Daubert in Florida State courts will have on the Florida Supreme Court s decision in Armadillo? 16 At least one post-daubert court in Illinois adheres to the Florida Supreme Court s reasoning in Armadillo. In Guardian Pipeline, LLC v Acres of Land, 486 F.Supp.2d 741 (N.D. Ill. 2007), the District Court was faced with several Daubert motions to exclude various appraisers testimony on the basis that the opinions were subjective, unreasoned, unsupported by market data, and inconsistent with the established methodology of the real estate profession. Id. at 749. At the outset, the Court noted that determining the value of real estate is not a science and that [r]eliance on judgment and experience is an accepted appraisal technique. Id. at 749. Similar to the Court s determination in Armadillo that an appraiser s opinion may be subject to impeachment or to having its weight reduced because of its failure to properly consider one of the many factors that may influence an opinion of value, but that failure should not prevent the opinion s admission, 17 the Court in Acres concluded that although the appraiser s interviews with market participants and market pairs lacked credibility, that was a question of weight rather than admissibility under Daubert Acres, supra. at 749. Other courts, when confronted with Daubert objections, have taken a different tact and avoided the gate keeping role all together. In City of Lincoln v. Realty Trust Group, Inc., 270 Neb, 587, 705 N.W.2d 432 (2005), the objection was based upon the comparable sales selected by the appraiser. At the outset, the Court reiterated its previous pronouncement that not every attack on expert testimony amounts to a Daubert claim. Id. at 440. It also noted that the So.2d 279 (Fla. 2003). 17 Id. at 287.

8 comparable sales method for valuation has long been accepted as a valid approach that need not be reconsidered in this case. In so holding, the Court announced that the reliability of expert opinion can be resolved by judicial notice. Id. In harmony with Armadillo, the City of Lincoln Court observed that the determination of similarity of comparable tracts for purposes of admissibility and the determination of damages is left largely to the discretion of the fact finder. Id. Likewise, in the very recent decision in Michigan, Lenawee v. Wagley, 2013 WL (Mich.App), the Court relied upon the flexibility provided in the application of the Daubert factors where non-scientific expert testimony is involved to avoid conducting a Daubert hearing. In Wagley, the proffered expert testimony was from a realtor regarding the effect of the airport on the marketability of the subject property. There, the Court reasoned, that because the expert s testimony constituted opinion based upon his experience, the trial court did not err by refusing to conduct a Daubert hearing before admitting the expert s testimony. Id. at *12. But, see Smithers, supra, (District court reversed for excluding expert testimony without first conducting a Daubert hearing) and Bitler, supra, (District court has no discretion to avoid performing the gatekeeper function). Two Years in Did the Florida Sky Fall as Predicted A survey of reported Florida State court decisions dealing with Daubert challenges post adoption of F.S , revealed none. Notwithstanding, the more recent federal court decisions provide valuable guidance for both the eminent domain practitioner and expert witness. The first two decisions reported in August 2013, arose from the same case, Whelan v. Royal Caribbean Cruises, LTD. 18 The case involved a wrongful death action against the owner of cruise ship for the death of a woman allegedly caused by injuries sustained from falling while on board. In 18 For ease of reference, the decisions at 976 F.Supp.2d 1322 (S.D.FL.2013), is referred to as Whelan I and 976 F.Supp.2d 1328 (S.D.FL. 2013), as Whelan II.

9 Whelan I, the owner moved to exclude the testimony of the county medical examiner and the treating physician. In Whelan II, the owner moved to exclude the testimony of Plaintiff s expert hematologist and the Plaintiff moved to exclude the report and testimony of the owner s expert pulmonologist. In both of these decisions, the Court reiterated the 3 part test established by the U.S. Court of Appeals for the Eleventh Judicial Circuit 19 to determine whether expert testimony should be admitted under Daubert: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. See Rink v. Cheminova, Inc., 400 F.3d 1286 (11 th Cir.2005). With the exception of one of the opinions of the treating physician, all the expert testimony in the Whelan case was determined to be admissible. Of particular interest was the Court s analysis of the application of Daubert to testimony based upon non-scientific principles (i.e. technical or other specialized knowledge). This type of testimony would include the types of experts routinely utilized in eminent domain litigation such as auto dealer consultants, petroleum and convenience store consultants, and realtor/brokers. The Court reasoned that if a witness is relying solely or primarily on experience the witness must explain: (1) how that experience leads to the conclusion/opinion reached; (2) why that experience is a sufficient basis for conclusion/opinion; and 19 The U.S. Court of Appeals for the Eleventh Circuit has jurisdiction over federal cases originating in Florida, Georgia and Alabama.

10 (3) how that experience is reliably applied to the facts. Whelan II at Quoting Daubert, the Court said, [p]roposed [expert] testimony must be supported by appropriate validation i.e. good grounds, based upon what is known. Daubert at 590. The next two decisions arose from the case, Tra Farms, Inc. v. Syngenta Seeds, Inc. 20 They also addressed the application of Daubert to proffers of technical or other specialized knowledge. In applying the Daubert inquiry, the Court recognized that while Daubert applies to non-scientific evidence, the requirements for admissibility [of this type of evidence] are less stringent. In Tra Farms I, the opinion of the Plaintiff s expert accountant regarding lost profits was challenged. The Defendant argued that her calculations were inconsistent and contain errors and that her opinion as to damages was speculative. As a starting point, the Court reiterated the long standing Twyman 21 rule that as long as the method used to prove lost profits is reasonably accurate and a fair basis for the computation, its use is appropriate. After determining that the accountant s calculations were based upon relevant historical data; took into account market values; and reflected reasonable assumptions about the available data, the Court denied the motion and allowed the testimony. Interestingly, the Court reasoned that Daubert precedents are generally less stringent for an expert [accountant]. See also, In re Joy Recovery Tech. 286 B.R. 54, 70 (Bankr.N.D.Ill.2002) (rejecting a Daubert Challenge to an accountant and noting that [a]ccounting is not an exact science. ). In Tra Farms II, the defendant challenged the admissibility of the opinion of Plaintiff s crop consultant as to the cause of the seeds discovered in what was supposed to be a crop of WL (N.D.FL.2014) is referred to as Tra Farms I, and 2014 WL (N.D.FL.2014) as Tra Farms II. 21 Twyman v. Roell, 166 So. 215 (Fla. 1936).

11 seedless watermelons. The defendant argued that his testimony was speculative because he was not an expert in crop genetics. The Court disagreed and permitted the testimony citing the expert s extensive experience as a crop consultant and personal knowledge, including personal inspections of the watermelons, and that the expert explained how that experience formed the conclusions he reached. The Tra Farms decisions provide strong support for arguing for the admissibility of evidence based upon technical or other specialized knowledge. As stated in Tra Farms II, a trial court s reliability inquiry may be less demanding, particularly here where [the expert s] area of expertise, farming practices, is based upon experience and training as opposed to the scientific method. So, the once feared rigorous gatekeeping inquiry does not appear to be as rigid when applied to opinions based upon things other than an exact science. The final two Florida post-daubert decisions 22 located involved scientific evidence and methodology. While eminent domain practitioners will infrequently be confronted with expert opinions based upon exact science, these cases remind us how important it is to know your Judge and prepare accordingly when confronted with a Daubert challenge to your expert. The Court in both cases discussed the standard of review for appellate courts reviewing trial court orders granting or denying Daubert motions; that is, the abuse of discretion. The abuse of discretion standard requires the appellate court to defer to the trial court s ruling unless it is manifestly erroneous. Adams at This deference gives the trial court wide leeway in determining whether the expert testimony is reliable. This deferential abuse-of-discretion standard is applied stringently, even if a decision on the expert testimony is outcome determinative. Chapman at Adams v. Laboratory Corp. of America, 760 F.3d 1322 (11 th Cir.2014) and Chapman v. Proctor & Gamble Distributing, LLC, 766 F.3d 1296 (11 th Cir.2014)

12 Standard of Review The Joiner decision, the last case in the Daubert trilogy, made it clear that the standard of review as to the admissibility of the expert testimony is that of an abuse of discretion. Many commentators insist that this deferential standard will allow trial courts to decide the admissibility of similar evidence in a contrary fashion. They argue that the application of sound methodology cannot vary based upon the details of the case and, for consistency, have urged for a de novo standard of review. They point out that once a higher court determines the scientific merits of a certain forensic technique, the same question as to admissibility should not be revisited by the trial courts. With respect to the issue of whether the trial judge fulfilled his gatekeeping obligations under Daubert, however, the standard of review is de novo. So, in reviewing whether the trial court properly assessed the proffered evidence for its scientific validity, the appellate court plays a much more important role For example, see Chapman v. Maytag Corp., 297 F. 3d 682 (7th Cir. 2002); Bradley v. Brown, 42 F.3d 434 (7 th Cir. 1994).