Florida’s first appellate review under Daubert occurred in Perez v. Bell South Telecommunications, Inc., 39 Fla. L. Weekly D 685b (April 24, 2014). The Third District Court of Appeals became the first Florida appellate court to apply the Daubert standard to uphold a decision by a trial court, excluding an expert from testifying at trial. The trial court had reviewed the expert’s opinion under the Frye standard that was applicable at the time it was deciding the issue. However, the appellate court correctly stated in its opinion that the law governing the admissibility of an expert’s opinion in Florida was the Daubert standard, not the Frye standard since the legislature recently changed the law. As a result, the Third District Court of Appeals decided in Perez to apply the Daubert standard in lieu of the Frye standard, retroactively. Nonetheless, the appellate court affirmed the trial court’s exclusion of the plaintiff’s expert.
Sean McDonough is a deputy managing partner in the Orlando office. Most of his twenty-year legal career has been devoted to trial practice. Among the areas in which Sean focuses are hospitality, professional liability, product liability, premises liability, trucking and transportation litigation, and insurance defense.
While it is true that social media has become one of the main sources for discovery in personal injury litigation, the basic tenets of discovery that apply to the standard document requests, also apply to this new technological source of information. The question of whether a demand for any and all information on the Facebook page of a grieving mother in a wrongful death lawsuit could lead to the discovery of admissible evidence relevant to her loss of consortium claim was recently addressed by the Appellate Court in Florida. In short, the Court’s latest decision on this issue was a message to defense attorneys that, although information posted on social media has limited privacy rights, the Courts will still not allow a defense attorney to engage in a fishing expedition of a plaintiff’s Facebook page.
The Florida legislature’s adoption of the Daubert Standard for admissibility of expert testimony took several sessions to pass as a well-organized Plaintiff’s Bar fought hard against it. However, the legislature’s affinity for laws that promote the growth of business within the state eventually won the day. Why did the Plaintiffs’ Bar resist?
Florida jurors are now considering more reliable expert testimony since the Florida legislature reformed the court’s role in precluding unreliable expert testimony. Starting July 1, 2013, the court has to follow the Daubert standard, which requires a judge to exercise greater scrutiny of the facts and data on which an expert’s opinions are based. As a result, Florida defense lawyers and their clients have a stronger arrow in their quiver to attack a plaintiff’s case that’s based on shaky expert opinions.