Challenging Expert Testimony in Toxic Tort Cases after Florida's Adoption of The Daubert Standard

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.

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).

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[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.”)