40 Fla. L. Weekly D1291c
In Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 387-88 (Fla. 1st DCA 2014), we addressed the Daubert test and outlined Florida’s adoption of that standard:
In 2013, the Florida Legislature modified section 90.702 “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), 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), and to no longer apply the standard in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923)[.]” See Ch. 13-107, § 1, Laws of Fla. (2013) (Preamble to § 90.702). As amended, section 90.702 now provides:
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 upon sufficient facts or data;
(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.
§ 90.702, Fla. Stat. The Legislature’s adoption of the Daubert standard reflected its intent to prohibit “pure opinion testimony, as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)[.]” Ch. 13-107, § 1, Laws of Fla; see Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 702.3 (2014 ed.) (“In adopting the amendment to section 90.702, the legislature specifically stated its intent that the Daubert standard was applicable to all expert testimony, including that in the form of pure opinion.”) (footnote omitted)
Timeliness of Motion
Facial Sufficiency of Motion
Pure Opinion Testimony
[T]estimony of a neurologist, based upon clinical experience alone, that the failure of physicians to perform a caesarian operation on a mother in labor caused brain damage to her child at birth, Gelsthorpe v. Weinstein, 897 So. 2d 504, 510 (Fla. 2d DCA 2005); testimony of an ophthalmologist, based on experience and training, that the exposure of an eye to polychlorinated biphenyles (PCB’s) causes cataracts, Florida Power & Light Co. v. Tursi, 729 So. 2d 995, 996-97 (Fla. 4th DCA 1999); testimony of medical experts of recognized relationship or association between trauma and the onset of fibromyalgia, based on clinical experience, State Farm Mut. Auto. Ins. Co. v. Johnson, 880 So.2d 721, 722-23 (Fla. 2d DCA 2004); see generally 24A Fla. Jur. Evidence, § 1104.
1. If it can be tested, has it?
2. Has it been subjected to peer review and/or publication?
3. If error rates can be determined, have they?
4. Are there standards controlling the technique’s operation; if so, have they been maintained?
5. Is the methodology generally accepted as reliable within the relevant scientific community?
AFFIRMED. (BENTON, CLARK, and MAKAR, JJ., CONCUR.)
* * *