Nicholson, et. al. v. Weingarten Nosat Inc. and Mahdu & Jay

July 18, 2014
Summary and Analysis of Florida Appellate
Opinions on Daubert
Discussion of Trial Court Orders on
Procedural and Substantive
Recommendations for Handling Daubert
Motions in State Court
Which German Philosopher was the
Subject of a daubert Opinion by the
Florida Supreme Court?
1) Karl Marx
2) Rudolph Fichte
3) Johan Fiezte
4) Friedrich Neitzsche
Friedrich Neitzsche
Zakrewski v. State, 2014 WL
2810560 (Fla. June 20, 2014)
Prisoner files appeal of post conviction relief
On appeal, he claims that the Daubert standard
should be applied retroactively to the testimony
of a penalty-phase witness concerning the
beliefs of Nietzsche—this testimony occurred at
a hearing in 1996
Holding: Daubert would not apply retroactively
to a hearing held in 1996 and further that
Nietzsche’s testimony would not be governed by
Frye or Daubert
Rule 90.702, Florida Statutes
90.702 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 on sufficient facts or
(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
Question Two: What is the
Burden of Proof?
1) Clear and Convincing
2) Beyond a Reasonable Doubt
3) Preponderance of the Evidence
Daubert: Burden of Proof
Proponent of the evidence has the burden
of proof to show the evidence is relevant
and reliable by the PREPONDERANCE OF
THE EVIDENCE (US v. Frazier, 387 F.3d
1244 (11th Cir. 2004))
Question Three: What is the
Standard of Review on Appeal?
1) De Novo
2) Abuse of Discretion
Appellate Review
The standard of review on appeal is Abuse
of Discretion, GE v. Joiner, 522 U.S. 136
Question Four: What types of expert
testimony does Daubert apply to?
1) Medical Doctors
2) Accident Reconstructionist
3) Damages Expert on Lost Profits in
Commercial Cases
4) All expert testimony
Daubert applies to ALL EXPERT
Daubert analysis applies to all Expert
Witness Testimony, Kumho Tire v.
Carmichael, 526 U.S. 137 (1999)
Daubert Flowchart
Is proffered
Is the testimony
based on sufficient
facts or data?
Is the testimony
the product of
reliable principles?
Qualifies as expert
by knowledge, skill,
training or
Is the testimony
based on a reliable
Has the witness
applied the
principles and
methods reliable to
the facts of the
Is the expert’s
testimony relevant
to the issue at
Does the expert’s
scientific, technical,
or other specialized
knowledge assist
the trier of fact?
Does the
outweigh the
(Rule 403)
Fla. Stat. 90.702, is the “witness
qualified as an expert”?
Court should consider the knowledge, skill, experience, training, and
expertise. The qualification standards remain the same as under the Frye
Introduce CV, peer-reviewed articles, prior testimony, establish that subject
matter is sufficiently within the expert’s expertise, have they been Dauberttested?
For example, defense accident reconstructionist may not be expert on
roadway design
If challenging expert, look at when did expert have experience with product
at issue (Walker v. CSX Transp. 650 F. 3d 1392 (11th Cir. 2011) (affirming
exclusion of expert whose limited experience with product at issue had
“occurred over thirty to forty years before case arose”)
Will the Expert’s Scientific, Technical, or Other
Specialized Knowledge Assist the Trier of Fact
Expert testimony “which does not relate to an issue in the case is
not relevant, and ergo, non-helpful.” Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 591 (1993)
Does the testimony concern matters that are “beyond the
understanding the average lay person?”
Is the opinion ipse dixit (“because I say so”?)
Rule 702 “helpfulness” standard requires a valid, scientific connection
to the pertinent inquiry as a precondition to admissibility—Daubert,
509 U.S. at 592.
Is the Testimony Based on Sufficient Facts
or Data?
Peer-reviewed articles
Is the Testimony Based on Reliable
Scientific Principles?
Has the expert’s testimony been tested?
Whether the theory or technique has been
subjected to peer review and publication?
Whether there is a known or potential
error rate in methodology?
Whether the technique generally accepted
in relevant community? (see Perez v.
BellSouth—general acceptance can have
bearing on inquiry)
Question Five: True or False, Must Expert
Testimony Meet All the Factors
1) True
2) False
Reliability Factors
False. The inquiry is flexible and Daubert
factors may not apply in every case.
Trial judges have broad latitude to serve
as “gatekeepers”
Has the Expert Reliably Applied the
Principles and Method to the Facts in the
Must be logical connection to analysis and
Is the opinion “ipse dixit”—Because I say
Is there any analytical gap between the
analysis/calculation/test and the result?
Is there a fit between the
analysis/calculation/test and the result?
Ipse Dixit—”Because I say so”
“WHEREAS, by amending s. 90.702, Florida Statutes, the Florida
Legislature intents to prohibit in the courts of this state pure opinion
testimony as provided in Marsh v. Valyou, 977 So. 2d 542 (Fla
2007)—Laws of Fla. Ch. 2013-107
“[N]othing in either Daubert or the Federal Rules of Evidence
Requires a district court to admit opinion evidence that is connected
to existing data only by the ipse dixit of the expert.” General Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997)
Perez v. BellSouth Telecommunications, Inc., 2014 WL 1613654
(Fla. 3d DCA Apr. 23, 2014) (excluding Plaintiff’s expert opinion that
stress caused patient’s placental abruption, where “his conclusions
were purely his own personal opinion, not supported by an credible
scientific research”)
Snow v. Philip Morris (Judge Kest—Orange County March 25, 2014)
Perez v. BellSouth Telecommunications
“express intent of the Legislature that the courts of this state
interpret and apply the principles of expert testimony not only with
Daubert v. Merrell Dow Pharmaceuticals, but also with General
Electric Co. v. Jointer and Kumho Tire Co., v. Carmichael as well”.
“Daubert test applies to all other expert opinion testimony”
“Expert testimony that might otherwise qualify as ‘pure opinion’
testimony is expressly prohibited.”
The “legislative purpose of the new law is clear: to tighten the rules
for admissibility of expert testimony in the courts of this state.”
“section 90.702 of the Florida Evidence Code indisputably applies
Apply 90.702 “retrospectively to facts of this case. We are not the
first district court to do so.” See Conley v. State, 129 So. 3d 1120
(Fla. 1st DCA 2013) –reversed and remanded for new trial under
Daubert to evidence of PPG test in Jimmy Ryce Act proceeding
Perez v. BellSouth--Facts
Expert had never before related placental
abruption to workplace stress and knew of
no one who had
Was no scientific support for his opinion
Opinion was classic example of common
fallacy of assuming casualty from temporal
Question Six: Is a hearing
required on a Daubert motion?
1) Yes
2) No
A Daubert Hearing is Not
Court may rule upon the papers
(affidavits, expert reports, depositions)
Daubert Procedures
Daubert applies to both Plaintiffs and Defendant’s experts
Identify Daubert issues—Do written Daubert discovery (Interrogs,
Daubert Depositions
Request Daubert evidentiary hearing as soon as discovery
Request sufficient time for Daubert hearing
Do not make Daubert challenge during middle of trial

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