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March 24, 2017 by Tom

Appeals — Certiorari — Exclusion of scientific evidence — Defendant in case arising out of automobile accident not entitled to certiorari review of pretrial order precluding defendant’s expert witness from offering certain scientific opinions regarding effects on human body of various forces generated by collision

42
Fla. L. Weekly D644c
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Appeals
— Certiorari — Exclusion of scientific evidence — Defendant in case arising
out of automobile accident not entitled to certiorari review of pretrial order
precluding defendant’s expert witness from offering certain scientific opinions
regarding effects on human body of various forces generated by collision —
Legislature’s adoption of Daubert standards as to admissibility of
scientific evidence not basis for receding from court’s prior en banc opinion
holding that certiorari review of trial court’s pretrial order striking expert
witnesses was unwarranted due to availability of postjudgment appellate relief

RANDY
LANE RHOADES, III, Petitioner, v. LILMISSETTE RODRIGUEZ, Respondent. 5th
District. Case No. 5D16-4285. Opinion filed March 17, 2017. Petition for
Certiorari Review of Order from the Circuit Court for Brevard County, John M.
Harris, Judge. Counsel: Dale T. Gobel, of Gobel Flakes, LLC, Orlando, for
Petitioner. Jeffrey M. Byrd, P.A., of Jeffrey M. Byrd, P.A., Orlando, for
Respondent.

(LAMBERT,
J.) Randy Rhoades petitions for a writ of certiorari, requesting that this court
quash the trial court’s order that limits the trial testimony of one of his
expert witnesses, Dr. Steven Rundell, a biomechanical engineer. We deny the
petition.

This
case arises from a motor vehicle accident. Respondent, Lilmissette Rodriguez,
sued Rhoades, alleging that Rhoades negligently operated his vehicle, resulting
in a rear-end accident that proximately caused Rodriguez to suffer injury and
damages. Rhoades listed Dr. Rundell as an expert witness, anticipating that Dr.
Rundell would provide opinion testimony as to: (1) the accelerations and forces
that are applied to the human body as a result of this collision, (2) the
effects of such force on the human body, (3) the likelihood of damage to human
bone and tissue by the application of such forces, and (4) a comparison of the
forces caused by the instant motor vehicle collision with those forces that are
experienced by individuals in other common daily events. Rodriguez filed a Daubert1 motion, seeking to limit Dr. Rundell
from providing this testimony and to further preclude him from providing
opinion testimony as to whether she sustained any injury that was causally
related to the accident. Following a hearing at which Dr. Rundell testified,
the trial court entered the challenged order, permitting Dr. Rundell to testify
as to the forces generated by the collision of the vehicles but precluding him
from testifying as to the effect of such forces as applied to the human body,
the likelihood of any damage to tissue and bone resulting from such forces, a
comparison of the forces caused by the collision with those forces associated
with other common daily events, and whether Rodriguez was injured as a result
of the accident.

Rhoades
argues that as a result of Florida’s adoption of the Daubert2 standards as to the admissibility of
scientific evidence, Florida’s trial courts have now been provided with a
“broader ability to strike an expert witness,” thus necessitating a
“modification in the ability for certiorari review” and the implementation of
“a new appellate standard for evaluating the propriety of the trial courts’
[pretrial orders]” that strike expert witnesses or limit their testimony.
Rhoades contends that due to what he sees as an increase by the trial courts,
post-Daubert, to strike expert witnesses prior to trial, this court
should recede from our nearly unanimous en banc decision in Bill Kasper
Construction Co. v. Morrison
, 93 So. 3d 1061, 1062 (Fla. 5th DCA 2012),
where we held that certiorari review of a trial court’s pretrial order striking
a defendant’s expert witnesses was unwarranted due to the availability of
postjudgment appellate relief. Rhoades disagrees, arguing that immediate
interlocutory review of such pretrial orders is now necessary “as the only way
to ensure the legal correctness of the trial court’s rulings and to assure
faith in the fairness of our legal system.”

“To
be entitled to certiorari review, [Rhoades] must demonstrate that the [trial
court’s] order constitutes a departure from the essential requirements of law
and results in material injury for the remainder of the case that cannot be
corrected on appeal.” See Paton v. GEICO Gen. Ins. Co., 190 So. 3d 1047,
1052 (Fla. 2016) (citing Bd. of Trs. of the Internal Improvement Tr. Fund v.
Am. Educ. Enters., LLC
, 99 So. 3d 450, 454 (Fla. 2012)). “Simple
disagreement with the decision of the trial court is an insufficient basis for
certiorari jurisdiction.” Id. (citing Ivey v. Allstate Ins. Co.,
774 So. 2d 679, 683 (Fla. 2000)). Furthermore, the alleged gravity of the trial
court’s error does not justify the relaxation of the irreparable harm
prerequisite to certiorari relief. Bill Kasper, 93 So. 3d at 1063
(Torpy, J., concurring) (citing Jaye v. Royal Saxon, Inc., 720 So. 2d
214, 215 (Fla. 1998)).

We
decline Rhoades’s invitation to recede from Bill Kasper. Moreover,
subsequent to Rhoades filing his petition, the Florida Supreme Court has
declined to adopt the “Daubert amendment” to section 90.702, to the
extent that it is procedural, due to constitutional concerns that the court
determined must be addressed in the context of a proper case or controversy (as
opposed to a “rules case”). See In re: Amendments to the Fla. Evidence Code,
42 Fla. L. Weekly S179 (Fla. Feb. 16, 2017). As the supreme court’s opinion
could very well result in the trial court reconsidering or vacating the instant
interlocutory order prior to trial, the issues we are being asked to consider
may become moot. See Bill Kasper, 93 So. 2d at 1065 (Torpy J.,
concurring) (noting the possibility of a change in the trial court’s ruling
rendering moot the issues before the appellate court as an additional factor in
denying certiorari review).

PETITION
for WRIT OF CERTIORARI DENIED. (PALMER and EDWARDS JJ., concur.)

__________________

1Daubert
v. Merrell Dow Pharm., Inc.
, 509 U.S. 579 (1993).

2Effective
July 1, 2013, the Florida Legislature amended section 90.702, Florida Statutes,
replacing the previously adopted “general acceptance test” for admitting expert
opinion evidence described in Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923), with the standards set forth in Daubert for the
admissibility of scientific evidence. Section 90.702 provides that:

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. (2016).

The
Frye test applied to expert testimony based upon new or novel scientific
evidence. “Under Frye, in order to introduce expert testimony deduced
from a scientific principle or discovery, the principle or discovery ‘must be
sufficiently established to have gained general acceptance in the particular
field in which it belongs.’ ” Flanagan v. State, 625 So. 2d 827, 828
(Fla. 1993) (quoting Frye, 293 F. at 1014).

* *
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