After Florida’s Adoption of Daubert Rule, Physician’s Opinion as to Cause of Employee’s Placental Abruption Was Inadmissible

Noting that with its 2013 amendment to § 90.702, Fla. Stat., the Florida legislature had clearly jettisoned both “the Frye test” and the “pure opinion” rule [Flannagan v. State, 625 So. 2d 827 (Fla. 1993), in favor of the Daubert rule, as they relate to the admissibility of expert testimony, a Florida appellate court recently held that a state trial court properly granted summary judgment in favor of a former employer on a negligence claim because the medical expert’s proposed testimony was inadmissible under Daubert; the expert had never before related a placental abruption to workplace stress and knew of no one who had. There was no scientific support for his opinion and it could not be admitted under the prior “pure opinion” rule [Perez v. Bell South Telecommunications, Inc., 2014 Fla. App. LEXIS 5875 (Apr. 23, 2014)]. 

Background

Perez became pregnant with her first child (“infant Perez”) while employed as a call center operator by Bell South. She was 26 years old at the time. Her treating physician classified Ms. Perez’s pregnancy as “high risk” at the time of her first visit to the physician’s office. Evidence suggested a number of other conditions contributed to her “high risk” status. Perez had undergone gastric surgery due to obesity. Despite the surgery, she remained obese at the time of her pregnancy. She had also suffered two herniated discs, had back surgery, and had her gall bladder removed prior to her pregnancy with the infant Perez.

Two months after Perez’s initial visit to the treating physician, she reported being “put under a lot of stress” at work. The physician gave her a note limiting her to 40 hours per week and asked that Perez be allowed frequent bathroom breaks. About a month later, Perez was fired for non-performance. Two days later, she suffered a placental abruption and delivered the infant Perez, twenty weeks early. Infant Perez suffered various medical difficulties because of his premature birth. Perez, as his mother and next friend, filed a civil action against Bell South, alleging its negligence led to the placental abruption and resulting damage to infant Perez.

At a deposition, the treating physician opined that workplace stress, exacerbated by Bell South’s alleged refusal to accommodate Perez’s medical condition, was the causal agent of the abruption and early delivery of her son with medical consequences. The doctor added that there was no way of ever knowing for sure what caused the placental abruption. In fact, physician testified that his conclusions were purely his own personal opinion, not supported by any credible scientific research. When asked to explain the basis of his opinion in this case, the only rationale the physician could muster was that Perez worked during her first pregnancy, but did not work during the pregnancy leading to the birth of her second child, which resulted in a more normal delivery. This analysis, argued Perez, comprised an admissible differential diagnosis supporting the physician’s workplace stress theory of placental abruption.

The trial court struck the physician’s opinion as inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). A few months later, the trial court granted Bell South’s motion for summary judgment for failure of the plaintiff to proffer admissible evidence to prove causation. Perez appealed, contending in relevant part that that the testimony was admissible as “pure opinion” testimony under Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007). Perez appealed.

Florida Adoption of Daubert Test in 2013

Initially, the appellate court noted that the admissibility of expert testimony in Florida was governed by § 90.702, Fla. Stat., and that until recently, there were two avenues under this rule to the admissibility of expert testimony under Florida law:

1. If the proposed expert testimony espoused a “new or novel” scientific theory, principle or discovery, then “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.” This path to admissibility is commonly known as the “Frye test.” In Frye, the “thing” that had been found to lack “general acceptance” in its field was the result of a “systolic blood pressure deception test,” an early polygraph.
2. The second path to admissibility of expert testimony until recently was the “pure opinion” path. Under this path, if the proposed testimony is not “new or novel,” but instead is based upon the expert’s personal experience, observation, and training, the Frye test does not apply to the ultimate opinion of an expert, so long as the methods used to reach the opinion were generally accepted scientific methods under Frye.

In 2013, the Florida Legislature amended section 90.702 of the Florida Evidence Code to adopt the standard for expert testimony as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and as reaffirmed and refined by both General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).

Marsh v. Valyou Has Been Overruled

The court continued that in so doing, the Legislature expressed its intent to “prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007),” as relied upon by Perez. On July 1, 2013, these revisions to section 90.702 went into effect, changing Florida from a Frye jurisdiction to a Daubert jurisdiction. Moreover, the court added that section 90.702 of the Florida Evidence Code “indisputably” applied retrospectively.

Daubert Summarized

The court went on to provide an excellent summary of the Daubert rule, noting that under the rule “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. (emphasis added by the Florida appellate court). The touchstone of the scientific method, said the court, is empirical testing – developing hypotheses and testing them through blind experiments to see if they can be verified.

Quoting the United States Supreme Court opinion in Daubert, the court emphasized that “[t]his methodology is what distinguishes science from other fields of human inquiry.” Id. at 593. As stated by the nation’s high court, “a key question to be answered” in any Daubert inquiry, therefore, is whether the proposed testimony qualifies as “scientific knowledge” as it is understood and applied in the field of science to aid the trier of fact with information that actually can be or has been tested within the scientific method. Id. “General acceptance” [from the Frye test] can also have a bearing on the inquiry, as can error rates and whether the theory or technique has been subjected to peer review and publication. Id. at 593–594. As indicated by the United States Supreme Court, there remains “some play in the joints.” However, “general acceptance in the scientific community” alone is no longer a sufficient basis for the admissibility of expert testimony. It “is simply one factor among several.” (509 U.S. at 594). Subjective belief and unsupported speculation are inadmissible.

“Post Hoc, Ergo Propter Hoc” Fallacy

The Florida court concluded that Perez’s physician’s testimony was inadmissible under Daubert. The doctor had never before related a a placental abruption to workplace stress and knew of no one who had. There was no scientific support for his opinion. The court indicated that the opinion the physician proffered was “a classic example of the common fallacy of assuming causality from temporal sequence.” The court stated that in logic, the error was known as “the post hoc, ergo propter hoc fallacy [Translated from the Latin, post hoc ergo propter hoc literally means “after this, therefore because of this.” Black’s Law Dictionary 1285 (9th ed. 2009)]. Quoting Hennigan v. Ouachita Parish Sch. Brd., 749 F.2d 1148, 1152 (5th Cir. 1985), the court stated that ”[h]ere, as elsewhere in the law, propter hoc must be distinguished from post hoc.”