Challenging expert witness testimony in Florida products liability cases under Frye.

• Author: Cavendish, Rebecca

Trials are often won or lost on the testimony of expert witnesses. Thus, successfully excluding the testimony of an opposing expert witness can deal a devastating blow to the opponent's case. Because scientific expert witness testimony is virtually inescapable in products liability cases, it is crucial for counsel handling those cases to be well-versed in the relevant case law and equipped with a full arsenal of tactics for challenging the testimony of an opponent's expert witness. This article examines the current state of Florida law with regard to the exclusion of expert witness testimony about scientific or technical issues and discusses techniques that may be particularly useful in challenging such testimony in products liability cases.

Evolution of Florida Case Law Regarding Admissibility of Expert Witness Testimony

F.S. [sections]90.702 provides the framework for the admission of expert witness testimony in Florida state courts. It states "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; however, the opinion is admissible only if it can be applied to evidence at trial." (1) Over time, there has been much dispute about the proper role trial courts should play in assessing the scientific or technical merits of expert witness testimony when determining its admissibility. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court affirmed the trial court's refusal to admit the expert witness testimony of a scientist who conducted a lie detector test because the scientific principles upon which the test was based had not "gained general acceptance in the particular field in which it belongs." (2)

For nearly 70 years, the Frye standard of "general acceptance" controlled the admissibility of scientific expert witness testimony. Then, in 1993, the U.S. Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), and placed the responsibility on the trial court to act as a "gatekeeper." This displaced the Frye test of general acceptance in federal courts, giving trial judges leeway to determine that new and novel scientific ideas and techniques are reliable and admissible as a basis for expert witness testimony even though they have not yet gained general acceptance in the scientific community. (3) In this respect, many viewed Daubert as expanding the type of scientific expert witness testimony that is admissible by abandoning the brightline general acceptance standard of Frye and asking courts to instead evaluate the reliability of scientific evidence based on falsifiability, peer review, error rates, and acceptability in the relevant scientific community.

Florida courts have declined to adopt Daubert, instead continuing to apply the Frye "general acceptance" standard, requiring "acceptance by a clear majority of the members of the relevant scientific community with consideration by the trial court of both the quality and quantity of those opinions." (4) The requirement that scientific evidence meet the Frye standard applies only to new or novel theories and does not apply to pure opinion testimony based on an expert witness' experience and training. (5) In choosing to use Frye, Florida courts have stated the preference to maintain what is viewed to be the higher standard of reliability as dictated by Frye, rather than the more lenient Daubert standard used by the federal courts. (6)

In the past four years, the Florida Supreme Court has issued two opinions discussing the factors a trial court should consider in determining the admissibility of scientific expert witness opinions under Frye. In Ramirez v. State, 810 So. 2d 836 (Fla. 2002), the court stated that a trial court is not required to accept only a "nose count" of experts in determining whether a method used by an expert witness is generally accepted and, therefore, admissible. (7) The Ramirez court found that trial courts could consider different sources including expert witness testimony, scientific and legal publications, and judicial opinions to decide whether the theories or assumptions used by the expert witness have been sufficiently tested and accepted in the relevant scientific community. (8) The court held that in applying the Frye test, "the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principles and the testing procedures used to apply that principle to the facts of the case at hand." (9)

In 2003, the Florida Supreme Court addressed the admissibility of expert witness testimony under Frye in a products liability case. In Castillo v. E.I. Dupont de Nemours & Co., 854 So. 2d 1264 (Fla. 2003), the plaintiff's child suffered birth defects that the plaintiff claimed were caused by exposure to a pesticide while she was pregnant. The plaintiff's expert witness used information from studies conducted on rats and in vitro laboratory studies and extrapolated that data to determine whether and at what levels a pregnant woman's exposure to the chemical could cause birth defects. Retreating from Ramirez, the Castillo court held that Frye only required the trial court to examine the general acceptance of the underlying science and experiments from which the expert witness obtained the data used to draw his conclusions, not the reasoning or conclusions themselves. (10) Finding that the science underlying each method was generally accepted, the court concluded that the opinions of the plaintiff 's expert witness were admissible. (11) The Castillo court explained that even if the methods used to interpret the data from the underlying valid science are not generally accepted, any questions about how the expert reached his conclusion go to the weight a jury should give to the expert witness' opinion and not to whether the opinion is admissible. (12)

* Challenges to Expert Witness Testimony in Products Liability Cases

Products liability cases almost always involve scientific expert witness testimony. There are many challenges a party in a products liability case can, and should, make under Frye to attack the testimony of the opponent's expert witness. As the...