Torts
— Automobile accident — Evidence — Expert — Trial court erred in granting
defendant’s motion for new trial on ground that neurosurgeon’s trial testimony
that plaintiff’s herniated disc was caused by accident was outside his area of
expertise and inadmissible under Daubert v. Merrell Dow Pharmaceuticals,
Inc. where defendant did not make Daubert objection until after
trial

ENZO ROJAS, Appellant, vs. YAGMERYS RODRIGUEZ, Appellee. 3rd
District. Case No. 3D15-277. L.T. Case No. 12-6054. Opinion filed February 17,
2016. An Appeal from the Circuit Court for Miami-Dade County, Norma S. Lindsey,
Judge. Counsel: Nancy Little Hoffman, (Fort Lauderdale), for appellant. Michael
J. Neimand, for appellee.

(Before ROTHENBERG, SALTER and LOGUE, JJ.)

(LOGUE, Judge.) Plaintiff, Enzo Rojas, seeks review of the
trial court’s order granting defendant Yagmerys Rodriguez’s motion for a new
trial. Because the defendant did not make a timely Daubert1 objection, we reverse.

The plaintiff was a passenger in an automobile that was
struck by the defendant’s vehicle. The defendant admitted liability and the
case was tried on the issue of whether the plaintiff’s herniated disc was
caused by the accident. A neurosurgeon testified that the herniated disc was
consistent with the twisting of the body that the plaintiff testified occurred
when the vehicle spun after the impact. Defense counsel objected to the
neurosurgeon’s testimony on this point on the basis that “[i]t is outside of
the scope of his expertise. He is not an accident reconstructionist, or a
biomechanical expert.” The objection was overruled. After the plaintiff rested
his case, the defense moved “for mistrial based upon [the neurosurgeon]
testifying as an accident reconstructionist expert, or biomechanical engineer,
as he didn’t have any of those qualifications.” The trial court denied the
motion. The defense renewed the motion before the jury returned.

The jury ultimately awarded the plaintiff $14,620.01 in past
medical expenses, $59,050.00 for future medical expenses, $5,000.00 for past
pain and suffering, and $15,000.00 for future pain and suffering. Following the
delivery of the verdict, the defense once again renewed its motion, but again
raised no Daubert objection. The trial court asked the defense to file a
written motion so that the plaintiff could properly respond. The defendant then
filed a “motion for mistrial/new trial and remittitur,” asserting that the
neurosurgeon’s testimony was outside his area of expertise and trial by ambush,
and for the first time, raising Daubert.

The trial court held a hearing and granted the motion with a
citation to Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492
(Fla. 3d DCA 2014) (holding that a physician’s proposed testimony was
inadmissible under the Daubert test). The plaintiff appealed, and with
the defendant’s agreement, subsequently sought and obtained a relinquishment of
jurisdiction to allow the trial court to specify the grounds for its order. The
amended order stated, in pertinent part, that the neurosurgeon’s testimony was
“outside his scope of expertise and inadmissible under Daubert,” that
the “[p]laintiff put on no other expert testimony as to causation,” and “since
the only issues in the case were causation and damages, [the neurosurgeon’s]
testimony, which should have been excluded, was clearly central to the jury’s
verdict finding in favor of [p]laintiff.”

This appeal essentially hinges on whether the defendant’s
post-trial Daubert objection was timely so as to warrant the exclusion
of the neurosurgeon’s testimony. We hold that it was not. Under Florida law,
“[e]xclusion of witness testimony . . . is a drastic remedy that should be
invoked only under the most compelling circumstances.” Clair v. Perry,
66 So. 3d 1078, 1080 (Fla. 4th DCA 2011) (citation and quotations omitted).
Although defendant argued post-trial and on appeal that the testimony was
inadmissible under Daubert, and while the trial court based its ruling
upon this alleged inadmissibility under Daubert, it is undisputed that
the defendant failed to raise a Daubert objection or request a Daubert
hearing prior to the conclusion of trial. This failure is fatal to the
defendant’s case, particularly in light of the fact that the defendant was on
notice that the neurosurgeon would be an expert witness as early as December
11, 2013, when the plaintiff filed his expert witness list, over ten months
before the October 27, 2014 start of trial. Despite this disclosure, the
defendant took no steps to discover the basis of the neurosurgeon’s opinion.

Moreover, it was incumbent upon the defendant, as the
challenging party, to timely raise a Daubert objection and request a
hearing before the trial court. See Booker v. Sumter Sheriff’s
Office/N. Am. Risk Svcs., 166 So. 3d 189, 192-93 (Fla. 4th DCA 2015). Given
the trial court’s role as “gatekeeper” in the Daubert context, it stands
to reason that such an objection must be timely raised to allow the trial court
to properly perform its role:

The
failure to timely raise a Daubert challenge may result in the court
refusing to consider the untimely motion. See Feliciano-Hill v.
Principi, 439 F.3d 18, 24 (1st Cir. 2006) (explaining “[p]arties have an
obligation to object to an expert’s testimony in a timely fashion, so that the
expert’s proposed testimony can be evaluated with care”). See also
Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001)
(explaining that “because Daubert generally contemplates a ‘gatekeeping’
function, not a ‘gotcha’ junction [sic],” untimely Daubert motions
should be considered “only in rare circumstances”); Club Car, Inc., 362
F.3d at 780 (“A Daubert objection not raised before trial may be
rejected as untimely.”).

Id. at 193.

Here, there was no timely Daubert objection, nor is
there any indication that exceptional circumstances existed to merit consideration
of the defendant’s untimely objection. As such, the trial court erred in
granting the defendant’s motion. Accordingly, we reverse the order on appeal
and remand so that the trial court may reinstitute the jury’s verdict. Because
the defendant failed to make a timely Daubert objection, we do not reach
the issue of whether the neurosurgeon’s testimony would have been admissible
under Daubert.

Reversed and remanded with instructions.

__________________

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

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