You can find the first part of this story here.

The Aftermath of Marsh

When the Marsh case was decided in 2007 its broad interpretation of the “pure opinion exception” and narrow vision of the role of Frye took Florida expert evidence admissibility law well out of the mainstream. Florida law was starkly at odds with the reliability concerns addressed by Daubert and its progeny and counterparts.

A 2010 court of appeal case highlighted the dramatic difference between Florida and federal admissibility standards. Hood v. Matrixx Initiatives, Inc., 50 So.3d 1166 (Fla. 4th DCA 2010). [Disclosure: The author was defense counsel in Hood.] Plaintiffs sued the maker of OTC cold remedy Zicam nasal gel claiming it caused loss of sense of smell. They also sued the local supermarket chain, Publix, solely to defeat diversity – a fact that will become significant shortly. The trial court granted a Frye motion to exclude plaintiffs’ causation expert, Dr. Jafek, and then granted summary judgment.

Dr. Jafek had previously been excluded by federal courts in Alabama (2), California, Kentucky, Oregon, and Texas, all finding the science behind his causation opinions unreliable under Daubert. Despite this track record, and even though one of the factors under Frye is whether the science underlying the expert’s opinion has been accepted in the courts, the court of appeal reluctantly reversed. “While we recognize the federal courts’ uniform refusal to admit Dr. Jafek’s testimony, we are compelled to find that Dr. Jafek’s opinion is admissible in Florida under Marsh.”

Even beyond the diametrically different results regarding admissibility of the same expert and same opinions, two aspects of Hood shined a bright light on the weaknesses in Florida’s admissibility threshold.

• First, as only Dr. Jafek’s general causation opinion had been challenged, and he both necessarily and actually relied heavily on extrapolation from scientific studies to conclude that the product can cause smell loss, Hood confirmed the extraordinary reach of the pure opinion exception after The court of appeal expressly rejected the defense argument that the exception was inapplicable because of the prominent role of scientific literature in Dr. Jafek’s analysis.
• Second, in authorizing experts to rely on scientific research and still escape reliability scrutiny under the exception, the court confirmed that the exception had become entirely untethered from its rationale. Recall the premise of the pure opinion exception, however questionable, was that jurors were well equipped to evaluate an opinion based solely on the experts’ training and experience; they were in no danger of being spellbound by scientific methods, data and principles difficult for laymen to independently understand, process, and evaluate. Credibility assessment was the jury’s wheelhouse. The reconfigured pure opinion exception allowed the experts to have their proverbial cake (avoid reliability screening) and consume it (clothe their opinion in the aura of science), too.

After Marsh and Hood, the difference between federal and state courtrooms in Florida was striking. Federal judges were not just authorized but obligated to police all scientific expert testimony and require that it rest on a reliable foundation in methods, data, and reasoning. Their state counterparts were prohibited from scrutinizing the reliability of scientific opinion testimony “in the vast majority of cases.” Frye was not applicable at all if the experts relied on training and experience, even if they also relied on any scientific research. Only opinions based on new or novel scientific tests or methods were subject to Frye, and the experts’ reasoning and conclusions were entirely immune from Frye-testing. And while federal judges would consistently exclude true “pure opinion” (i.e., an opinion actually based solely on the experts’ training and experience) as inadmissible ipse dixit, state judges were bound to automatically admit it, with no further reliability inquiry. As Hood explained, Marsh had opted for “a ‘battle-of-the-experts’ approach to the admissibility of expert testimony, designed to prevent trial judges from usurping ‘the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.’”

The Legislature Strikes Back

How did the Florida Legislature and business community respond to this state of affairs? They mobilized. Concerns over the lack of any meaningful mechanisms to reject junk science, the consequential potential for jackpot justice in tort cases, and the ultimate encouragement of unnecessary local joinders and forum-shopping fueled increasingly urgent calls for legislative reform.

Legislation was introduced in 2008 and 2011 to amend Florida’s version of rule 702 to adopt a Daubert standard and reject the existing Frye regime, but fell short. Another concerted effort was mounted in 2013, and in April 2013 I was contacted by a tort reform organization promoting the amendment. It seemed an important swing vote on the Senate Rules Committee was on the fence. Though he was concerned with the prospect of forum-shopping, he had seen no concrete evidence that it was actually occurring. The ask was for any evidence that plaintiffs’ lawyers were targeting Florida and/or joining local defendants solely to stay in state court.

Recall that in Hood the Florida grocery chain Publix had been joined to defeat diversity. After remand, the case went to trial in February 2013, the jury returned a defense verdict, and I was defending the verdict on appeal. Having the trial record handy, I was able to provide the Legislature with the transcript of the plaintiffs’ opening statement. Counsel had essentially told the jurors that Publix was in the case for strategic reasons, simply because it had sold the product, and had not done anything blameworthy. The legislation wound up passing, and Florida had a Daubert standard effective July 2013. Florida Statutes § 90.702.

Mission accomplished? Hardly – we are far from the end of the story. The remaining twists and turns will have you on the edge of your seat in Part 3.