New Florida Evidentiary Standard Tips the Scale in Premature Birth Appeal

Although changes to the law of evidence do not typically engender much in the way of debate, Florida litigants are now seeing the harsh realties that can be associated with revisions that typically go unnoticed. In Perez v. BellSouth Telecommunications, Inc., a panel of judges for the Third District Court of Appeals unanimously affirmed a trial court decision to exclude testimony from the plaintiff’s personal obstetrician, a physician with over two decades of experience, in part because of recent legislation that placed stricter limits on the admissibility of expert testimony.

This decision follows passage of Florida House Bill 7015, which amended Section 90.702 of the Florida Evidence Code, the provision governing the admissibility of expert testimony in both civil and criminal litigation. Prior to passage of HB 7015, courts in Florida applied what is commonly known as the “Frye Standard.” Pursuant to this standard, Florida Courts permitted the inclusion of expert opinion testimony so long as the testimony was based on scientific methods that were sufficiently established and had gained general acceptance in the particular field to which they belong.

HB 7015, however, did away with Frye and incorporated the “Daubert Standard,” a stricter evidentiary rule that has been utilized in Federal Courts since 1993. Daubert, unlike Frye, places greater emphasis on the scientific methodology from which an expert’s opinion is formed, and induces greater exclusion of evidence that is not derived from empirical testing, peer review, or controlled examination. Accordingly, even if an expert’s testimony may be relevant and based on sound reasoning or ample practical experience, it may still be excluded for a lack of scientific verifiability.

In Perez, a mother brought suit on behalf of her son against her former employer and argued that the employer’s failure to accommodate her high-risk pregnancy led to a placental abruption and, consequently, the premature birth of her son who suffers from a host of medical conditions. Her physician, whose testimony was later excluded, wrote a letter to the employer noting the risky nature of Perez’s pregnancy and stating that she should not work more than 40 hours per week and be given time for bathroom breaks. Shortly thereafter, Perez was fired for “non-performance” and, two days later, she suffered from a placental abruption and delivered her son twenty weeks before schedule. Perez sought to introduce her physician’s testimony at trial, but the trial court held that it was inadmissible under Frye.

On appeal, the Third District Court of Appeals noted that Florida Courts have been amenable to this variety of physician testimony. See, e.g., Gelsthorpe v. Weinstein, 897 So. 2d 504, 510 (Fla. 2d DCA 2005). However, rather than determining whether it was appropriate to exclude the evidence under Frye, the court opted to apply the stricter Daubert test, although the standard was introduced after Perez initially filed suit and this appeal. Applying Daubert to the facts, the court found that the physician’s testimony lacked sufficient scientific foundation and was, thus, inadmissible.

Although a jury would likely benefit from the testimony of the physician with the most immediate experience with the plaintiff’s situation and could undoubtedly distinguish a meaningful contribution from sham science, Florida’s new evidentiary rules create an added barrier for those hoping to adequately present their cases and seek redress for their harms. As one RAND Institute study that examined the impact of Daubert in Federal Courts 10 years after Daubert’s introduction found, the burden created by heightening the evidentiary standards had a more pronounced impact on plaintiffs, since they more often carry of burden of proof in civil litigation.

Given this shift in the evidentiary rules, it is important for anyone considering filing a lawsuit for a serious injury to seek the guidance of counsel that is knowledgeable about all facets of civil litigation. With a motto of “Never settle for less”,  the South Florida personal injury attorneys at Frankl Kominsky Injury Lawyers compassionately and effectively represent clients who have sustained serious injuries. We fight for our clients in and out of the courtroom to make sure that they receive the compensation to which they are entitled under Florida law. Click here, or call 1-855-800-8000 today to schedule your free case consultation with an experienced attorney today.

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