41 Fla. L. Weekly D1308aTop of Form
Torts
— Evidence — Causation expert — Trial court did not abuse its discretion in
excluding plaintiff’s expert’s causation opinion — 2013 amendment of statute
on admission of expert testimony applies retroactively — Amendments to the
statute are procedural and thus apply retroactively — Summary judgment for
defendants affirmed — Costs — Award of costs for attorney travel and for
defense expert’s fees is reversed because those fees were not taxable under the
Statewide Uniform Guidelines for Taxation of Costs in Civil Actions
— Evidence — Causation expert — Trial court did not abuse its discretion in
excluding plaintiff’s expert’s causation opinion — 2013 amendment of statute
on admission of expert testimony applies retroactively — Amendments to the
statute are procedural and thus apply retroactively — Summary judgment for
defendants affirmed — Costs — Award of costs for attorney travel and for
defense expert’s fees is reversed because those fees were not taxable under the
Statewide Uniform Guidelines for Taxation of Costs in Civil Actions
SIMONA BUNIN, Appellant, v. MATRIXX INITIATIVES, INC., a
Delaware corporation f/k/a GUMTECH INTERNATIONAL, INC., a foreign corporation,
and ZICAM, LLC, a limited liability corporation f/k/a GEL TECH, LLC, an Arizona
limited liability company, and PUBLIX SUPER MARKETS, INC., a Florida
corporation, Appellees. 4th District. Case Nos. 4D14-3579 & 4D15-86. June
1, 2016. Consolidated appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No.
09-056853 (26). Counsel: Keith Chasin of the Law Office of Keith Chasin, Miami,
for appellant. Barry L. Davis and Daniel R. Lever of Thornton Davis Fein,
Miami, and Alan J. Lazarus and Jaime D. Walter of Drinker Biddle & Reath,
LLP, San Francisco, CA, for appellees.
Delaware corporation f/k/a GUMTECH INTERNATIONAL, INC., a foreign corporation,
and ZICAM, LLC, a limited liability corporation f/k/a GEL TECH, LLC, an Arizona
limited liability company, and PUBLIX SUPER MARKETS, INC., a Florida
corporation, Appellees. 4th District. Case Nos. 4D14-3579 & 4D15-86. June
1, 2016. Consolidated appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No.
09-056853 (26). Counsel: Keith Chasin of the Law Office of Keith Chasin, Miami,
for appellant. Barry L. Davis and Daniel R. Lever of Thornton Davis Fein,
Miami, and Alan J. Lazarus and Jaime D. Walter of Drinker Biddle & Reath,
LLP, San Francisco, CA, for appellees.
(TAYLOR, J.) In this products liability action, the
plaintiff alleged she lost her sense of smell, a condition known as anosmia,
after she used a Zicam nasal spray. The defendants moved to exclude the opinion
of the plaintiff’s causation expert, based on the recent change to section
90.702, Florida Statutes (2013), which now requires trial courts to apply the
standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), in ruling on the admissibility of expert testimony. The trial court
granted the defendants’ motion and entered summary judgment in favor of the
defendants. We affirm the summary judgment, concluding that the trial court did
not abuse its discretion in excluding the causation testimony under section
90.702, Florida Statutes (2013). However, we reverse the cost judgment to the
extent it awarded attorney travel expenses, and expert fees that were not for a
deposition, trial testimony, or a court-ordered report.
plaintiff alleged she lost her sense of smell, a condition known as anosmia,
after she used a Zicam nasal spray. The defendants moved to exclude the opinion
of the plaintiff’s causation expert, based on the recent change to section
90.702, Florida Statutes (2013), which now requires trial courts to apply the
standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), in ruling on the admissibility of expert testimony. The trial court
granted the defendants’ motion and entered summary judgment in favor of the
defendants. We affirm the summary judgment, concluding that the trial court did
not abuse its discretion in excluding the causation testimony under section
90.702, Florida Statutes (2013). However, we reverse the cost judgment to the
extent it awarded attorney travel expenses, and expert fees that were not for a
deposition, trial testimony, or a court-ordered report.
An order on a motion to exclude expert testimony is reviewed
for an abuse of discretion. Booker v. Sumter Cty. Sheriff’s Office, 166
So. 3d 189, 194 n.2 (Fla. 1st DCA 2015). But the issue of whether a statute
applies retroactively is a question of law reviewed de novo. Bionetics Corp.
v. Kenniasty, 69 So. 3d 943, 947 (Fla. 2011).
for an abuse of discretion. Booker v. Sumter Cty. Sheriff’s Office, 166
So. 3d 189, 194 n.2 (Fla. 1st DCA 2015). But the issue of whether a statute
applies retroactively is a question of law reviewed de novo. Bionetics Corp.
v. Kenniasty, 69 So. 3d 943, 947 (Fla. 2011).
In 2013, the Florida Legislature amended section 90.702 with
the intent to adopt the federal Daubert standard for the admission of
expert testimony. See Ch. 2013-107, § 1, Laws of Fla. (2013). On appeal,
the plaintiff’s primary argument is that the 2013 amendments to section 90.702
are substantive in nature and should not be applied retroactively to her case,
which was filed in 2009. We disagree.
the intent to adopt the federal Daubert standard for the admission of
expert testimony. See Ch. 2013-107, § 1, Laws of Fla. (2013). On appeal,
the plaintiff’s primary argument is that the 2013 amendments to section 90.702
are substantive in nature and should not be applied retroactively to her case,
which was filed in 2009. We disagree.
It is well-settled that “[p]rocedural or remedial statutes .
. . are to be applied retrospectively and are to be applied to pending cases.” Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). A statute
that merely “relates to the admission of evidence” is generally considered
procedural. Windom v. State, 656 So. 2d 432, 439 (Fla. 1995).
Accordingly, as the Third District has explained, “section 90.702 of the Florida
Evidence Code indisputably applies retrospectively.” Perez v. Bell South
Telecomms., Inc., 138 So. 3d 492, 498 (Fla. 3rd DCA 2014).1
. . are to be applied retrospectively and are to be applied to pending cases.” Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). A statute
that merely “relates to the admission of evidence” is generally considered
procedural. Windom v. State, 656 So. 2d 432, 439 (Fla. 1995).
Accordingly, as the Third District has explained, “section 90.702 of the Florida
Evidence Code indisputably applies retrospectively.” Perez v. Bell South
Telecomms., Inc., 138 So. 3d 492, 498 (Fla. 3rd DCA 2014).1
Having carefully reviewed the record, we conclude that the
trial court did not abuse its discretion in excluding the plaintiff’s expert’s
causation opinion under Daubert, even though the expert’s opinion would
have been admissible under the “pure opinion” rule of Marsh v. Valyou,
977 So. 2d 543, 548-50 (Fla. 2007). Because the plaintiff’s case depended upon
her expert’s excluded causation testimony, the summary judgment in favor of the
defendants must stand.
trial court did not abuse its discretion in excluding the plaintiff’s expert’s
causation opinion under Daubert, even though the expert’s opinion would
have been admissible under the “pure opinion” rule of Marsh v. Valyou,
977 So. 2d 543, 548-50 (Fla. 2007). Because the plaintiff’s case depended upon
her expert’s excluded causation testimony, the summary judgment in favor of the
defendants must stand.
Turning to the plaintiff’s appeal of the cost judgment, we
reverse the award of costs to the extent it awarded attorney travel expenses
and the fees of the defense expert, Dr. Brent. These costs were not costs that
“should be” or “may be” taxed under the Statewide Uniform Guidelines for
Taxation of Costs in Civil Actions, and the trial court failed to make any
specific findings in the cost judgment as to the unique and extraordinary
circumstances that would justify a deviation from the guidelines. See
Rodrigo v. State Farm Fla. Ins. Co., 166 So. 3d 933, 934 (Fla. 4th DCA
2015) (When deviating from the guidelines, the trial court is “required to make
specific findings as to the unique and extraordinary circumstances justifying
such an award.”).
reverse the award of costs to the extent it awarded attorney travel expenses
and the fees of the defense expert, Dr. Brent. These costs were not costs that
“should be” or “may be” taxed under the Statewide Uniform Guidelines for
Taxation of Costs in Civil Actions, and the trial court failed to make any
specific findings in the cost judgment as to the unique and extraordinary
circumstances that would justify a deviation from the guidelines. See
Rodrigo v. State Farm Fla. Ins. Co., 166 So. 3d 933, 934 (Fla. 4th DCA
2015) (When deviating from the guidelines, the trial court is “required to make
specific findings as to the unique and extraordinary circumstances justifying
such an award.”).
From the face of the cost judgment (including the exhibit
incorporated by reference), it is clear that the defendants’ counsel’s travel
expenses should not have been awarded. See Citizens Prop. Ins. Corp. v.
Pulloquinga, 183 So. 3d 1134, 1138 (Fla. 3d DCA 2015) (holding that the
trial court improperly awarded counsel’s travel time and travel expenses as
costs in contravention to the guidelines). Likewise, under the guidelines, Dr.
Brent’s time did not qualify as a cost that “should be taxed,” because his fees
were not for a deposition, trial testimony, or a court-ordered report. Nor did
his fees fall under the category of costs that “may be taxed” under the
guidelines. Therefore, we reverse the award of costs for attorney travel
expenses and for Dr. Brent’s fees, and remand for the trial court to eliminate
those expenses from the cost judgment.
incorporated by reference), it is clear that the defendants’ counsel’s travel
expenses should not have been awarded. See Citizens Prop. Ins. Corp. v.
Pulloquinga, 183 So. 3d 1134, 1138 (Fla. 3d DCA 2015) (holding that the
trial court improperly awarded counsel’s travel time and travel expenses as
costs in contravention to the guidelines). Likewise, under the guidelines, Dr.
Brent’s time did not qualify as a cost that “should be taxed,” because his fees
were not for a deposition, trial testimony, or a court-ordered report. Nor did
his fees fall under the category of costs that “may be taxed” under the
guidelines. Therefore, we reverse the award of costs for attorney travel
expenses and for Dr. Brent’s fees, and remand for the trial court to eliminate
those expenses from the cost judgment.
Affirmed in case no. 4D14-3579; Reversed and Remanded in
case no. 4D15-86. (CIKLIN, C.J., and MAY, J., concur.)
case no. 4D15-86. (CIKLIN, C.J., and MAY, J., concur.)
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1In deciding that the amendments
apply retrospectively, we note that the plaintiff did not raise the argument
that the 2013 amendments to section 90.702 violated the separation of powers
doctrine by encroaching upon the Florida Supreme Court’s authority to adopt
procedural rules in Florida courts. See Art. V, § 2(a), Fla. Const.
apply retrospectively, we note that the plaintiff did not raise the argument
that the 2013 amendments to section 90.702 violated the separation of powers
doctrine by encroaching upon the Florida Supreme Court’s authority to adopt
procedural rules in Florida courts. See Art. V, § 2(a), Fla. Const.
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