What are the standards governing admissibility of scientific evidence regarding causation testimony in Toxic Tort Cases in Florida, after the adoption of Daubert? This article provides some first impressions.
Causation in a toxic
tort case differs from basic negligence.
A plaintiff must establish medical
causation. Haller v. AstraZeneca Pharm. LP, 598 F. Supp. 2d 1271, 1275 (M.D.
Fla. 2009). To prove medical causation,
one must prove both “that exposure to the alleged toxic substance can cause a
particular disease (general causation), and that exposure to the alleged toxic
substance was a cause of his or her individual injury (specific causation).” Id.[1]
Courts also require that the exposure of the toxic substance was the
proximate cause of the damages, typically using the substantial factor test. Id. at 1304. Expert testimony is
necessary to show causation in a toxic tort claim. McClain v. Metabolife Intern., Inc., 401 F.3d 1233, 1237 (11th Cir.
2005). Said expert would be subject to a
potential Daubert challenge. Id
Fla.
Stat. § 90.702, which was revised in 2013, governs the admissibility of expert
testimony, and 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:
(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.
(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.
Note
that only one Florida State Court appellate case (Perez v. Bell South[2]) has applied or construed the new
statute. The Perez court expressly
noted that per the legislative history, the Florida legislature unequivocally
intended to adopt the evidentiary standard articulated in Daubert[3]
and its progeny (GE v. Joiner[4]
& Kuhmo Tire v. Carmichael[5]).
The Perez court further expressly
held that the statutory change was procedural and therefore applied
retrospectively.[6]
Given
the limited (though favorable) state case law, we can reasonably assume that
Florida courts will adhere to the prevailing federal framework. Specifically,
when determining whether expert testimony is reliable and relevant (and
therefore admissible), the court will need to make the following findings:
1.
The
expert is qualified to testify competently regarding the matters he intends to
address;
2. The methodology by which the
expert reaches his conclusion 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.[7]
Note
that the prevailing Daubert analysis
in Federal Court reveals that these three factors are not treated distinctly,
but rather, influence one another. Thus, an expert’s lack of qualification may
not, on its own, justify exclusion of testimony, but may be paired with
methodological problems to warrant same.[8] While
the analysis clearly fails to draw distinctions, there are some Florida cases
relating to qualification of experts, and as such, both issues are addressed
‘distinctly’ below.
(1) Standards
governing qualification of experts
Pursuant to the Fla. Civ. P. § 1.390(a), the term ‘expert witness’ “applies
exclusively to a person duly and regularly engaged in the practice of a
profession who holds a professional degree from a university or college and has
had special professional training and experience, or one possessed of special
knowledge or skill about the subject upon which called to testify.” Such specialized knowledge may be acquired through an occupation or
business or frequent interaction with the subject matter, but general knowledge
is insufficient. Chavez v. State, 12
So. 3d 199 (Fla. 2009).
A trial court has broad
discretion regarding the range of subjects about which an expert may be
allowed to testify, and similarly has the discretion to accept or reject expert
testimony. See e.g., Orpe v. Carnival
Corp., 909 So. 2d 929 (Fla. 3d DCA 2005); Phillipon v. Shreffler, 33 So. 3d 704 (Fla. 4th DCA 2010), review denied, 47 So. 3d 1290 (Fla.
2010). Expert testimony is not
admissible unless the witness has expertise
in the area in which his opinion is sought, and expert witnesses may not testify to matters that fall
outside of their area of expertise. Smithson
v. V.M.S. Health, Inc., 536 So. 2d 260 (Fla. 3d DCA 1988); Cordoba v. Rodriguez, 939 So. 2d 319
(Fla. 4th DCA 2006). Furthermore, it is
not enough that an expert witness “is qualified in some general way …
[rather,] the witness must be possessed of special knowledge about the discrete
subject upon which he is called to testify.” United Technologies Communications Co. v. Industrial
Risk Insurers, 501 So. 2d 46, 49 (Fla. 3d DCA 1987); See also Goodyear Tire and Rubber Co. v.
Ross, 660 So. 2d 1109, 1111 (Fla. 4th DCA 1995); Chavez v. State, 12 So. 3d 199 (Fla. 2009).
In Chavez v. State, the
defendant/appellant claimed that the trial court had improperly excluded an
expert who sought to opine as to the discrepancies between the Cuban and
American legal systems, in order to establish that the defendant/appellant had
not voluntarily waived his Miranda rights. The Florida Supreme Court affirmed
the trial Court’s exclusion of this testimony, noting that while an expert may
acquire the requisite specialized knowledge “through an occupation or business
or frequent interaction with the subject matter,” such specialized knowledge
must concern “the discrete subject related to the expert opinion to be
presented.” Chavez, 12 So. 3d at 205.
The Court noted that the expert’s qualifications and proffered testimony
“consisted of some research, two visits to Cuba which involved research and
discussions with Cuban lawyers, and one discussion with [defendant/appellant],”
and held that the qualifications proffered by said expert did not demonstrate
that he had “sufficiently developed specialized knowledge of, or that he had
adequate experience with, the comparative study of the Cuban and American legal
systems.” Id. at 206. Thus, the
proffered expert’s general experience as an attorney in the American legal
profession, even when combined with some research and discussions with Cuban
lawyers, did not sufficiently qualify him to opine as to this discrete subject
area.
The basic principle that an expert witness must be qualified in the
discrete subject area on which he is asked to opine is aptly illustrated in Goodyear Tire and Rubber Co. v. Ross:
To foreclose other errors in the
retrial, we comment on the admissibility of testimony of the expert witness
Ramisch. He may be the world's foremost
expert on traffic control devices, but it does not appear that he knows any
more than we do about portable rubber speed bumps. We agree that it is not
enough that the witness be qualified to propound opinions on a general subject;
rather he must be qualified as an expert on the discrete subject on which he is
asked to opine.
Ross,
660 So. 2d at 1111 (emphasis added).
Note
that all of the aforementioned Florida cases addressing the qualifications of
an expert witness arose in the context of the then-prevailing Frye standard. The changes to Fla. Stat.
§ 90.702 were clearly intended to limit the scope of permitted expert
testimony, and the plain language of these changes would lead us to reasonably
conclude that the pre-existing expert qualification limitations still apply. In
otherwords, these pre-Daubert cases should
still be good law. We can, therefore, envision a set of circumstances where the
witness lacks to requisite qualification to issue the opinion itself (as was
the case in Ross), and where the
court does not need to consider the methodology utilized by the expert.
That
being said, given the ‘totality of the circumstances’ type balancing test
employed in Daubert cases, a trial
court would very likely be inclined to conduct the full analysis in order to
thoroughly justify the exclusion of any expert testimony. The Daubert standard (and its application to
cases involving toxic tort causation) is therefore addressed at length, below.
(2) Standards
governing admissibility under Daubert
Daubert v. Merrell Dow[9] (originally limited to Federal
Rules of Evidence) expressly directs judges to play a “gatekeeping role” to
ensure that “expert's testimony both rests on a reliable foundation and is
relevant to the task at hand.” Id. at
595. Under Daubert, "the subject
of an expert's testimony must be 'scientific knowledge.'" 509 U.S. at 590.
"[I]n order to qualify as 'scientific knowledge,' an inference or
assertion must be derived by the scientific method." Id. The touchstone of the scientific method is empirical testing —
developing hypotheses and testing them through blind experiments to see if they
can be verified. Id. at 593. Thus Daubert analysis places great emphasis
on the methodology an expert uses to
reach his opinion, and further, notes that this methodology should be (in most
cases) subject to the scientific method. "This methodology is what
distinguishes science from other fields of human inquiry." Id. at 593.
While
the initial Daubert opinion appeared
to be limited to scientific (rather
than ‘technical’) testimony, the Supreme Court in Kuhmo Tire v. Carmichael[10],
expressly held that all expert opinions should be subjected to Daubert analysis. As noted, the Florida
Legislature expressly referenced Kuhmo
in its changes, so we can assume that this federal standard now applies across
the board.
A
survey of Federal Case Law reveals that Daubert
is very much a balancing test, and as such, there are a large number of cases.
Moreover, as Daubert applies to many
different forms of testimony, the relevant factors in the court’s analysis may
change accordingly. That being said, in the context of medical/scientific
testimony, Daubert directs
courts to consider the following factors when determining whether expert
medical testimony is admissible:
1)
whether the theory or technique can be
(or has been) tested;
2) whether the theory or technique
has been subject to peer review and publication;
3)
the known or potential rate of error of
the methodology; and
4)
the general acceptance of the
methodology[11].
Note
that the aforementioned factors are non-exclusive.
Trial courts are directed to consider these (and other relevant factors) in
order to determine whether an expert’s testimony is reliable and therefore
admissible. The trial court’s conclusion as to admissibility is subject to an
abuse of discretion standard.[12]
Given
the scarcity of Florida State Case law applying this standard, it makes sense
to review what key factors are employed by the Southern District of Florida in
its Daubert analysis. As noted, the analysis itself is very clearly a balancing
test. Thus, an expert’s lack of qualification may not, on its own, justify
exclusion of testimony, but may be paired with other Daubert deficiencies to warrant same.[13]
In
the context of Toxic Tort cases, Florida courts have previously held that
medical experts “without particular training in toxicology are unlikely to have
sufficient background to evaluate the strengths and weaknesses of toxicological
research.” [14]
While the lack of this qualification is not dispositive, it very clearly points
toward exclusion.
In
Amos v. Rent-A-Center and Craig v. Orkin (two Southern District
cases), the trial courts identified a number of factors that would be relevant
to a Daubert analysis. As is clear
below, the Courts didn’t simply look to whether tests were performed – they
looked to whether the expert had preserved data so that their methodology might
be tested. For the sake of expediency and clarity, key relevant (but non
dispositive) factors are listed below:
· Expert
should have qualifications which are as specifically applicable as possible
(i.e., toxicologist in toxic tort case).[15]
· Expert
should have a history of treating the particular type of patient, or the
particular symptom.[16]
· Expert
(in toxic tort cases) should study and research the specific substance which is
claimed to have caused injury, and should provide testimony as to the specific
research performed.[17]
·Expert
(in toxic tort cases) should identify scientific literature which establishes
that the substance causes injury.[18]
· Expert
(in toxic tort cases) should perform (and document) reliable tests to establish
dose exposure amount.[19]
· Expert
should be able to discuss the potential rate of error of the tests performed
and conclusions reached.[20]
· Expert’s
opinion should not be formulated prior to supporting authority, research
and testing being presented.[21]
· Tests
performed by expert in support of conclusion should be as reliable as possible,
and not “prone to false positive results.”[22]
· Expert
should be certified in reading the tests performed in support of conclusion.[23]
· Expert
should retain and provide the results of all testing to opposing party.[24]
·Expert
should follow a recognized/published protocol in reading tests performed in
support of conclusions, or should publish the protocol used.[25]
· Expert
should rely on an explicit “theory or methodology” in evaluating Plaintiff, and
should perform tests on Plaintiff.[26]
· Expert
should “retain any documents reflecting the procedure [the expert] used in
evaluating the plaintiff.”[27]
· Expert
should “explain his methodology in rigorous detail” so that opposing experts
can repeat and test the methodology.[28]
· Medical
conclusions should arise from a “controlled clinical study accompanied by
scientific protocol” so that studies may be “replicated” to either “confirm” or
test the conclusions.[29]
· Expert
should (ideally), have published or presented “peer review articles ..
explaining her techniques” in order to subject them to scrutiny.[30]
· Expert
should present literature showing that the particular methodology used to reach
the conclusion is generally accepted by the scientific community.[31]
· Expert
should have thorough working knowledge of the specifically applicable facts
(and, clearly, the names of the subjects).[32]
As
noted, the aforementioned list is non-exhaustive. What is clear is that an
expert seeking to testify in a toxic tort causation case must (1) have the
appropriate qualifications; (2) make all diagnose(s) based upon a very clear,
documented and medically recognized methodology; and (3) rely upon support from
peer review literature. Where the diagnosis is novel, documentation and
profound attention to detail are essential.
(3) Procedure
for Daubert challenges
Daubert gives courts substantial
latitude as to the manner in which they may evaluate the credibility of
testifying experts. However, the plain language of the opinion expressly
directs judges to play a “gatekeeping role” to ensure that “expert's testimony
both rests on a reliable foundation and is relevant to the task at hand.” Daubert. at 595.While there is no single
required manner of making such a determination, most judges choose to entertain
these motions prior to trial (i.e., as a Motion in Limine). During these
hearings, experts may be called in to provide live testimony, and may well be
subject to questioning by opposing counsel or the judge. As noted, if new
evidence supporting the expert’s opinion is presented at the Daubert hearing, that may well be detrimental
to the expert’s credibility, as it suggests that the expert reached his opinion
before reviewing the evidence.[33] Thus,
the ultimate takeaway should be that a testifying expert should have completed
any and all research and testing prior to the expert’s deposition (or
report which issues an opinion).
[1] Like much of the jurisprudence
arising from mass tort and toxic tort causes of action, the causation issue is
itself worthy of a lengthy discourse.
This memo focuses on standards governing admissibility of expert
testimony, and merely summarizes the burden of proof as to causation in order
to provide context.
[2] Perez v. Bell South Telecomms., Inc.,
138 So. 2d 492 (Fla. 3d DCA 2014).
[3] Daubert v. Merrell Dow Pharms., 509 U.S.
579 (1993).
[4] General Electric Co. v. Joiner, 522 U.S.
136 (1997).
[5] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
[6] Perez at 498.
[7] Nature’s Prods. v. Natrol, Inc., 2013
U.S. Dist. LEXIS 185676 (S.D. Fla. 2013). Note that the third portion of the
inquiry is simply a Rule 403 analysis, and as such, is not discussed herein.
[8] See e.g., Amos v. Rent-A-Center, Inc.,
2001 U.S. Dist. LEXIS 26477 (S.D. Fla. 2001) (Nothing that “the marginal nature
of [the expert’s] qualifications enters into the Daubert calculus”).
[9] Daubert v. Merrell Dow Pharms., 509 U.S.
579 (1993)
[10] Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137 (1999).
[11] Craig v. Orkin Exterminating Co. 2000
U.S. Dist. LEXIS 19240 (SD. Fla. 2000) (citing Daubert, 509 U.S. at 593-595).
[12] General Electric Co. v. Joiner, 522 U.S.
136 (1997).
[13] See e.g., Amos v. Rent-A-Center, Inc.,
2001 U.S. Dist. LEXIS 26477 (S.D. Fla. 2001) (Nothing that “the marginal nature
of [the expert’s] qualifications enters into the Daubert calculus”).
[14] Craig v. Orkin Exterminating Co. 2000
U.S. Dist. LEXIS 19240 (SD. Fla. 2000)
(quoting Zwillinger v. Garfield Slop
Housing Corp., 1998 US Dist LEXIS 21107 at *22 (E.D. N.Y. 1998).
[15] Craig at *10; Amos at *8.
[16] Craig at *9.
[17] Craig at *9.
[18] Craig at *9. If the studies were “conducted independently of [the]
litigation and were peer-reviewed,” it is more likely the Court will allow
their admission. Berry v. CSX Transp.,
Inc., 709 So. 2d 552, 569 (Fla. 1st DCA 1998); Studies or other cases involving
the toxic substance in issue are a good way of showing general causation.
Courts have held that judicial decisions are evidence of general causation. U.S. Sugar Corp. v. Henson, 787 So. 2d
3, 18 (Fla. 1st DCA 2000) approved,
823 So. 2d 104 (Fla. 2002).
[19] Craig at *10.
[20] Craig at *10.
[21] Craig at *9. (“Dr. Wand and Dr. Stewart
both testified at the Daubert hearing that they had received more information
since their respective depositions, and that they also used that information to
formulate their opinions. This is not consistent with their claims that they
had formulated their conclusions at the time of the depositions. The testimony
of the Doctors leads this Court to believe that they had formulated an opinion,
and then attempted to link their conclusion with the facts.”)
[22] Craig at *9.
[23] Craig at *9.
[24] Craig at *10.
[25] Craig at *9.
[26] Amos at *6.
[27] Amos at *6.
[28] Amos at *6.
[29] Amos at *6.
[30] Amos at *6.
[31] Amos at *7.
[32] Amos at *8.
[33] Craig at *9. (“Dr. Wand and Dr. Stewart
both testified at the Daubert hearing that they had received more information
since their respective depositions, and that they also used that information to
formulate their opinions. This is not consistent with their claims that they
had formulated their conclusions at the time of the depositions. The testimony
of the Doctors leads this Court to believe that they had formulated an opinion,
and then attempted to link their conclusion with the facts.”)
