40 Fla. L. Weekly D2707aTop of Form
Wrongful
death — Medical malpractice — Evidence — Expert opinion — In ruling on
motion for summary judgment, trial court erred in excluding expert testimony of
emergency room physician regarding standard of care when emergency medical
services personnel respond to a 911 call seeking help for an infant in
respiratory distress — There was adequate support for expert’s opinion that,
when EMS responded to 911 call, it did not perform adequate evaluation of
child, and that EMS breached prevailing professional standard of care by
failing to put child in ambulance and take him to hospital for evaluation —
Record makes clear that expert’s testimony was the product of reliable
principles and methods, and that those principles and methods were applied
reliably to the facts of the case
death — Medical malpractice — Evidence — Expert opinion — In ruling on
motion for summary judgment, trial court erred in excluding expert testimony of
emergency room physician regarding standard of care when emergency medical
services personnel respond to a 911 call seeking help for an infant in
respiratory distress — There was adequate support for expert’s opinion that,
when EMS responded to 911 call, it did not perform adequate evaluation of
child, and that EMS breached prevailing professional standard of care by
failing to put child in ambulance and take him to hospital for evaluation —
Record makes clear that expert’s testimony was the product of reliable
principles and methods, and that those principles and methods were applied
reliably to the facts of the case
MEGAN E. BAAN, as the Personal Representative of the Estate
of CHARLES CRAVEN MCALPIN, deceased, Appellant, v. COLUMBIA COUNTY, Appellee.
1st District. Case No. 1D15-0092. Opinion filed December 8, 2015. An appeal
from the Circuit Court for Columbia County. Paul S. Bryan, Judge. Counsel:
Gilbert J. Alba of the Law Office of Alba & Yochim, P.A., Gainesville, for
Appellant. Jesse F. Suber, E. Victoria Penny, and Miriam R. Coles of Henry
Buchanan, P.A., Tallahassee, for Appellee.
of CHARLES CRAVEN MCALPIN, deceased, Appellant, v. COLUMBIA COUNTY, Appellee.
1st District. Case No. 1D15-0092. Opinion filed December 8, 2015. An appeal
from the Circuit Court for Columbia County. Paul S. Bryan, Judge. Counsel:
Gilbert J. Alba of the Law Office of Alba & Yochim, P.A., Gainesville, for
Appellant. Jesse F. Suber, E. Victoria Penny, and Miriam R. Coles of Henry
Buchanan, P.A., Tallahassee, for Appellee.
(BENTON, J.) On appeal from final summary judgment, the
parties focus on an antecedent order granting a motion to exclude the testimony
of appellant’s expert witness. The expert testified on deposition as to, among
other things, the standard of care when emergency personnel respond to a 911
call seeking help for an infant reported to be struggling to breathe. Columbia
County concedes that, if exclusion of the expert testimony was error, entry of
summary judgment was also error. Concluding the expert testimony should have
been considered in deciding the motion for summary judgment, we reverse and
remand for further proceedings.
parties focus on an antecedent order granting a motion to exclude the testimony
of appellant’s expert witness. The expert testified on deposition as to, among
other things, the standard of care when emergency personnel respond to a 911
call seeking help for an infant reported to be struggling to breathe. Columbia
County concedes that, if exclusion of the expert testimony was error, entry of
summary judgment was also error. Concluding the expert testimony should have
been considered in deciding the motion for summary judgment, we reverse and
remand for further proceedings.
On November 17, 2007, Columbia County Emergency Medical
Services (EMS) responded to a 911 call reporting a child was in respiratory
distress. Arriving on the scene, EMS personnel found Charles Craven McAlpin
(Craven), an 11-month-old who had been left in the care of Allison McAlpin, his
aunt. The parties agree that the EMS personnel left the scene within 10 minutes
of arriving, after showing Allison McAlpin how to use a nebulizer.
Services (EMS) responded to a 911 call reporting a child was in respiratory
distress. Arriving on the scene, EMS personnel found Charles Craven McAlpin
(Craven), an 11-month-old who had been left in the care of Allison McAlpin, his
aunt. The parties agree that the EMS personnel left the scene within 10 minutes
of arriving, after showing Allison McAlpin how to use a nebulizer.
In a 2014 affidavit and again on deposition in 2014, Dorothy
Benoit, a neighbor to whom Ms. McAlpin had taken Craven because of his
difficulty breathing, maintained she held the child over her shoulder during
the entire time EMS personnel were on the scene during their first visit, and
that the first responders who arrived on the initial run “did not conduct any
examination of him and in fact did not even touch Craven.”1
Benoit, a neighbor to whom Ms. McAlpin had taken Craven because of his
difficulty breathing, maintained she held the child over her shoulder during
the entire time EMS personnel were on the scene during their first visit, and
that the first responders who arrived on the initial run “did not conduct any
examination of him and in fact did not even touch Craven.”1
On the other hand, an EMS report said Craven was examined
and found to have normal vital signs: a pulse of 120, a respiratory rate of 20,
and oxygen saturation of 98 percent. The same report indicated EMS personnel were
told the child had earlier been diagnosed with asthma, and concluded he might
have been suffering an asthma attack before EMS arrived. Finally, the EMS
report said that the child had throat congestion he cleared upon coughing, and
that his lungs sounded clear. Approximately 50 minutes after EMS personnel
left, another 911 call brought news that the child was not breathing at all.
This time a different neighbor, Carl Billings, a trained emergency medical
technician whom the aunt summoned to help when he came home, “found Craven
lying on the floor face up with his face turning blue.” Mr. Billings instructed
Ms. McAlpin to call 911, before he “immediately began administering CPR.” He
stated in an affidavit (and testified to the same effect on deposition) that he
first turned the child over “to allow the copious amounts of mucus and fluid to
drain from his mouth and nose.”
and found to have normal vital signs: a pulse of 120, a respiratory rate of 20,
and oxygen saturation of 98 percent. The same report indicated EMS personnel were
told the child had earlier been diagnosed with asthma, and concluded he might
have been suffering an asthma attack before EMS arrived. Finally, the EMS
report said that the child had throat congestion he cleared upon coughing, and
that his lungs sounded clear. Approximately 50 minutes after EMS personnel
left, another 911 call brought news that the child was not breathing at all.
This time a different neighbor, Carl Billings, a trained emergency medical
technician whom the aunt summoned to help when he came home, “found Craven
lying on the floor face up with his face turning blue.” Mr. Billings instructed
Ms. McAlpin to call 911, before he “immediately began administering CPR.” He
stated in an affidavit (and testified to the same effect on deposition) that he
first turned the child over “to allow the copious amounts of mucus and fluid to
drain from his mouth and nose.”
When EMS arrived in response to the second 911 call, one EMS
employee testified, the child was “blue,” “extremely clammy,” and “cool to touch.”
EMS personnel immediately used equipment they had on the ambulance to clear his
airway by suctioning, started ventilating with a “bag valve mask,” and
intubated him. But they never detected the child’s pulse on the second run, and
soon transported him to a local hospital. After being airlifted to Shands
Hospital in Gainesville, where he was placed on a mechanical ventilator, Craven
was pronounced dead there the next day.
employee testified, the child was “blue,” “extremely clammy,” and “cool to touch.”
EMS personnel immediately used equipment they had on the ambulance to clear his
airway by suctioning, started ventilating with a “bag valve mask,” and
intubated him. But they never detected the child’s pulse on the second run, and
soon transported him to a local hospital. After being airlifted to Shands
Hospital in Gainesville, where he was placed on a mechanical ventilator, Craven
was pronounced dead there the next day.
Dr. David Tulsiak, an emergency room physician retained as
an expert by the child’s mother, executed an affidavit in 2010 in which he
offered two highly relevant opinions.2 First, he concluded EMS breached the
prevailing professional standard of care by failing to put the child in the
ambulance (which was equipped with oxygen) on their first run and take him to
the hospital for evaluation and treatment. Dr. Tulsiak also concluded that “had
the prevailing professional standard of care been met by Columbia County EMS,
more likely than not, Charles C. McAlpin would have been treated for a lack of
oxygen and he would have survived.”
an expert by the child’s mother, executed an affidavit in 2010 in which he
offered two highly relevant opinions.2 First, he concluded EMS breached the
prevailing professional standard of care by failing to put the child in the
ambulance (which was equipped with oxygen) on their first run and take him to
the hospital for evaluation and treatment. Dr. Tulsiak also concluded that “had
the prevailing professional standard of care been met by Columbia County EMS,
more likely than not, Charles C. McAlpin would have been treated for a lack of
oxygen and he would have survived.”
In his deposition taken four years later, Dr. Tulsiak said
much the same thing, stating he had reviewed all the material appellant
provided him in 2010 in forming his opinion at that time.3 Consistently with his affidavit, Dr.
Tulsiak testified that the most critical breach of the standard of care was
EMS’s failure to “transport th[e] patient to a medical facility for further
definitive care” after responding to the first 911 call. Dr. Tulsiak pointed
out that EMS violated its own protocol for “Respiratory Distress.” EMS’s
protocol called for maintenance of the airway, continuous assessment of
breathing and circulation, application of oxygen, and “[t]ransport ASAP.”4
much the same thing, stating he had reviewed all the material appellant
provided him in 2010 in forming his opinion at that time.3 Consistently with his affidavit, Dr.
Tulsiak testified that the most critical breach of the standard of care was
EMS’s failure to “transport th[e] patient to a medical facility for further
definitive care” after responding to the first 911 call. Dr. Tulsiak pointed
out that EMS violated its own protocol for “Respiratory Distress.” EMS’s
protocol called for maintenance of the airway, continuous assessment of
breathing and circulation, application of oxygen, and “[t]ransport ASAP.”4
Dr. Tulsiak concluded the child’s respiratory condition had
deteriorated — after EMS failed to transport him — until his airway was
obstructed by mucus, congestion, and “[m]ore likely than not” bronchospasm,
that is, “narrowing of the airways from smooth muscle constriction.” Although
he conceded that something like “a peanut in his upper airway” or severe blunt
force trauma to the head could theoretically cause respiratory arrest, Dr.
Tulsiak stated there was no physical evidence of either5 and that it “would not be consistent
with [the child’s] presentation on either the first or the second run.”
deteriorated — after EMS failed to transport him — until his airway was
obstructed by mucus, congestion, and “[m]ore likely than not” bronchospasm,
that is, “narrowing of the airways from smooth muscle constriction.” Although
he conceded that something like “a peanut in his upper airway” or severe blunt
force trauma to the head could theoretically cause respiratory arrest, Dr.
Tulsiak stated there was no physical evidence of either5 and that it “would not be consistent
with [the child’s] presentation on either the first or the second run.”
Even assuming EMS recorded the child’s vital signs
accurately,6 Dr. Tulsiak testified, a more
detailed assessment of the child should have been performed; to that end, EMS
should have spent more time observing the child, and should have taken him to a
hospital to be examined by a physician. Since the child was reported in
respiratory distress when the first 911 call was placed, he required transport
to a hospital, according to Dr. Tulsiak, given the historical diagnosis of
asthma7 and considering an 11-month-old
child’s inability to “verbalize [his] need for help.”
accurately,6 Dr. Tulsiak testified, a more
detailed assessment of the child should have been performed; to that end, EMS
should have spent more time observing the child, and should have taken him to a
hospital to be examined by a physician. Since the child was reported in
respiratory distress when the first 911 call was placed, he required transport
to a hospital, according to Dr. Tulsiak, given the historical diagnosis of
asthma7 and considering an 11-month-old
child’s inability to “verbalize [his] need for help.”
Some months after Dr. Tulsiak’s deposition, EMS moved to
exclude his expert testimony, arguing primarily that his testimony was
insufficiently reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), because “[a]ll of Dr. Tulsiak’s opinions . . . [we]re
rooted in one assumption: that because [the child] experienced a respiratory
arrest within one hour of [i.e., after] the first EMS call, he must have been
experiencing a detectable respiratory problem at the time of that first call.”
(This overlooks, of course, the fact that the aunt and the neighbor both
actually observed the “detectable respiratory problem” that led to the first
call, and so informed EMS personnel upon their arrival.)
exclude his expert testimony, arguing primarily that his testimony was
insufficiently reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), because “[a]ll of Dr. Tulsiak’s opinions . . . [we]re
rooted in one assumption: that because [the child] experienced a respiratory
arrest within one hour of [i.e., after] the first EMS call, he must have been
experiencing a detectable respiratory problem at the time of that first call.”
(This overlooks, of course, the fact that the aunt and the neighbor both
actually observed the “detectable respiratory problem” that led to the first
call, and so informed EMS personnel upon their arrival.)
Following a hearing on EMS’s motion, the trial court
concluded that Dr. Tulsiak had rejected evidence he should have accepted as
true (the EMS report) and that “the only evidence as to the child’s true
respiratory status was recorded by the paramedics,” so that Dr. Tulsiak’s
opinions were “premised on speculation based on an ultimate injury and
manufactured facts.” On this rationale, the trial court ruled Dr. Tulsiak’s
testimony inadmissible under Daubert and granted EMS’s motion to exclude
his testimony. Shortly thereafter, EMS moved for summary judgment on grounds
there was no evidence of any negligence without Dr. Tulsiak’s testimony, and
appellant filed a motion for reconsideration of the trial court’s evidentiary
ruling. After the trial court denied the motion for reconsideration and granted
final summary judgment in favor of EMS, the present appeal ensued.
concluded that Dr. Tulsiak had rejected evidence he should have accepted as
true (the EMS report) and that “the only evidence as to the child’s true
respiratory status was recorded by the paramedics,” so that Dr. Tulsiak’s
opinions were “premised on speculation based on an ultimate injury and
manufactured facts.” On this rationale, the trial court ruled Dr. Tulsiak’s
testimony inadmissible under Daubert and granted EMS’s motion to exclude
his testimony. Shortly thereafter, EMS moved for summary judgment on grounds
there was no evidence of any negligence without Dr. Tulsiak’s testimony, and
appellant filed a motion for reconsideration of the trial court’s evidentiary
ruling. After the trial court denied the motion for reconsideration and granted
final summary judgment in favor of EMS, the present appeal ensued.
A trial court’s exclusion of expert testimony is reviewed
for an abuse of discretion. See Booker v. Sumter Cty. Sheriff’s
Office/N. Am. Risk Servs., 166 So. 3d 189, 194 n.2 (Fla. 1st DCA 2015)
(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142 (1999)); see
also Adams v. Lab. Corp. of Am., 760 F. 3d 1322, 1327 (11th Cir.
2014) (“Even where a ruling excluding expert testimony is ‘outcome
determinative’ and the basis for a grant of summary judgment, our review is not
more searching than it would otherwise be.”). The proponent of expert testimony
must, when properly challenged, establish the basis for its admissibility by a
preponderance of the evidence. See Booker, 166 So. 3d at 193 n.1
(citing Daubert, 509 U.S. at 592 n.10).
for an abuse of discretion. See Booker v. Sumter Cty. Sheriff’s
Office/N. Am. Risk Servs., 166 So. 3d 189, 194 n.2 (Fla. 1st DCA 2015)
(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 142 (1999)); see
also Adams v. Lab. Corp. of Am., 760 F. 3d 1322, 1327 (11th Cir.
2014) (“Even where a ruling excluding expert testimony is ‘outcome
determinative’ and the basis for a grant of summary judgment, our review is not
more searching than it would otherwise be.”). The proponent of expert testimony
must, when properly challenged, establish the basis for its admissibility by a
preponderance of the evidence. See Booker, 166 So. 3d at 193 n.1
(citing Daubert, 509 U.S. at 592 n.10).
In forming opinions, an expert is entitled to rely on any
view of disputed facts the evidence will support. See Fed. R. Evid. 702
advisory committee’s note (“When facts are in dispute, experts sometimes reach
different conclusions based on competing versions of the facts. The emphasis in
the amendment on ‘sufficient facts or data’ is not intended to authorize a
trial court to exclude an expert’s testimony on the ground that the court
believes one version of the facts and not the other.”). Drawing all factual
inferences in favor of appellant (the non-movant), the record — in particular
Ms. Benoit’s deposition testimony — provides adequate support for Dr.
Tulsiak’s opinion that, when EMS responded to the first 911 call, it did not
perform an adequate evaluation of the child. The trial court made a factual
determination that should have been left to the jury in deeming the EMS report
accurate, contrary evidence notwithstanding.
view of disputed facts the evidence will support. See Fed. R. Evid. 702
advisory committee’s note (“When facts are in dispute, experts sometimes reach
different conclusions based on competing versions of the facts. The emphasis in
the amendment on ‘sufficient facts or data’ is not intended to authorize a
trial court to exclude an expert’s testimony on the ground that the court
believes one version of the facts and not the other.”). Drawing all factual
inferences in favor of appellant (the non-movant), the record — in particular
Ms. Benoit’s deposition testimony — provides adequate support for Dr.
Tulsiak’s opinion that, when EMS responded to the first 911 call, it did not
perform an adequate evaluation of the child. The trial court made a factual
determination that should have been left to the jury in deeming the EMS report
accurate, contrary evidence notwithstanding.
Ms. Benoit testified that she observed the child’s
difficulty breathing prior to the first EMS visit, and Mr. Billings testified
that the child was not breathing and had “copious amounts of mucus and fluid”
coming from his mouth and nose prior to the second EMS visit. Their testimony,
together with the child’s history of breathing problems (thought to be asthma)
and the undisputed fact the child stopped breathing altogether within minutes
of EMS’s initial departure, all support Dr. Tulsiak’s opinions the child should
have been taken to the hospital and would have survived but for EMS’s failure
to transport him.
difficulty breathing prior to the first EMS visit, and Mr. Billings testified
that the child was not breathing and had “copious amounts of mucus and fluid”
coming from his mouth and nose prior to the second EMS visit. Their testimony,
together with the child’s history of breathing problems (thought to be asthma)
and the undisputed fact the child stopped breathing altogether within minutes
of EMS’s initial departure, all support Dr. Tulsiak’s opinions the child should
have been taken to the hospital and would have survived but for EMS’s failure
to transport him.
Under Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), expert opinion testimony is admissible if the expert is qualified and
the opinion falls within the witness’s expertise. See Marsh v. Valyou,
977 So. 2d 543, 548-49 (Fla. 2007) (“ ‘While cloaked with the credibility of
the expert, [pure opinion] testimony is analyzed by the jury as it analyzes any
other personal opinion or factual testimony by a witness.’ ” (citation
omitted)); see also Booker, 166 So. 3d at 193 (“ ‘Pure opinion
testimony’ is testimony based only on the personal experience and training of
the expert.”).
1923), expert opinion testimony is admissible if the expert is qualified and
the opinion falls within the witness’s expertise. See Marsh v. Valyou,
977 So. 2d 543, 548-49 (Fla. 2007) (“ ‘While cloaked with the credibility of
the expert, [pure opinion] testimony is analyzed by the jury as it analyzes any
other personal opinion or factual testimony by a witness.’ ” (citation
omitted)); see also Booker, 166 So. 3d at 193 (“ ‘Pure opinion
testimony’ is testimony based only on the personal experience and training of
the expert.”).
Columbia County does not dispute that Dr. Tulsiak was, based
on his training and experience, well qualified as an expert in emergency
medical care. There is little question that his testimony would be admissible
under Frye: Dr. Tulsiak testified he had been board certified in
emergency medicine for approximately 30 years and had served as an emergency
medical service medical advisor for over 25 years at two EMS departments in
Florida. He said he dedicated 98 or 99 percent of his time to active clinical
(emergency) practice and worked regularly at two Florida hospitals. In his 30
years of practicing emergency medicine, Dr. Tulsiak said he treated numerous
children with a range of respiratory problems, including among other things: asthma,
hyperactive airway disease, bronchiolitis, congestion, pneumonia, and upper
respiratory tract infections with bronchospasm.
on his training and experience, well qualified as an expert in emergency
medical care. There is little question that his testimony would be admissible
under Frye: Dr. Tulsiak testified he had been board certified in
emergency medicine for approximately 30 years and had served as an emergency
medical service medical advisor for over 25 years at two EMS departments in
Florida. He said he dedicated 98 or 99 percent of his time to active clinical
(emergency) practice and worked regularly at two Florida hospitals. In his 30
years of practicing emergency medicine, Dr. Tulsiak said he treated numerous
children with a range of respiratory problems, including among other things: asthma,
hyperactive airway disease, bronchiolitis, congestion, pneumonia, and upper
respiratory tract infections with bronchospasm.
But the Legislature has adopted8 the Daubert standard for the
admissibility of expert testimony. See Giaimo v. Fla. Autosport, Inc.,
154 So. 3d 385, 387-88 (Fla. 1st DCA 2014). As amended, section 90.702
provides:
admissibility of expert testimony. See Giaimo v. Fla. Autosport, Inc.,
154 So. 3d 385, 387-88 (Fla. 1st DCA 2014). As amended, section 90.702
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:
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;
The testimony is based upon sufficient facts or data;
(2)
The testimony is the product of reliable principles and methods; and
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.
The witness has applied the principles and methods reliably to the facts of the
case.
§ 90.702, Fla. Stat. (2014). By amending section 90.702, the
Legislature signaled its intent “to tighten the rules for admissibility of
expert testimony,” Perez v. Bell South Telecommunications, Inc., 138 So.
3d 492, 497 (Fla. 3d DCA 2014), and “to prohibit ‘pure opinion testimony.’ ” Giaimo,
154 So. 3d at 388 (citing Ch. 13-107, Laws of Fla.).
Legislature signaled its intent “to tighten the rules for admissibility of
expert testimony,” Perez v. Bell South Telecommunications, Inc., 138 So.
3d 492, 497 (Fla. 3d DCA 2014), and “to prohibit ‘pure opinion testimony.’ ” Giaimo,
154 So. 3d at 388 (citing Ch. 13-107, Laws of Fla.).
Under Daubert, the trial court not only evaluates a
putative expert’s credentials, but also serves as a gatekeeper in “ensuring
that an expert’s testimony both rests on a reliable foundation and is relevant
to the task at hand.” Daubert, 509 U.S. at 597. When expert scientific
testimony is proffered, the trial court must, under Daubert, assess
“whether the reasoning or methodology underlying the testimony is
scientifically valid and . . . whether that reasoning or methodology properly
can be applied to the facts in issue.” Id. at 592-94 (listing
non-exclusive factors to consider in assessing the reliability of an expert’s
opinion).
putative expert’s credentials, but also serves as a gatekeeper in “ensuring
that an expert’s testimony both rests on a reliable foundation and is relevant
to the task at hand.” Daubert, 509 U.S. at 597. When expert scientific
testimony is proffered, the trial court must, under Daubert, assess
“whether the reasoning or methodology underlying the testimony is
scientifically valid and . . . whether that reasoning or methodology properly
can be applied to the facts in issue.” Id. at 592-94 (listing
non-exclusive factors to consider in assessing the reliability of an expert’s
opinion).
Under Daubert, although “an expert may be qualified
by experience,” it does not follow “that experience, standing alone, is a
sufficient foundation rendering reliable any conceivable opinion the
expert may express.” United States v. Frazier, 387 F.3d 1244, 1261 (11th
Cir. 2004) (“If admissibility could be established merely by the ipse dixit
of an admittedly qualified expert, the reliability prong would be, for all
practical purposes, subsumed by the qualification prong.”); see also
Charles W. Ehrhardt, 1 Fla. Prac., Florida Evidence § 702.3 (2015 ed.)
(“When an expert is relying primarily on experience, the witness must explain
how that experience leads to the opinion, why the experience is a sufficient
basis for the opinion and how that experience is reliably applied to the
facts.” (citing Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555
F.3d 1331 (11th Cir. 2009), and Primiano v. Cook, 598 F.3d 558 (9th Cir.
2010))). Under section 90.702, as amended, while the expert’s qualifications
may well remain germane, an expert witness must explain the logic and relevance
of the expert opinion.
by experience,” it does not follow “that experience, standing alone, is a
sufficient foundation rendering reliable any conceivable opinion the
expert may express.” United States v. Frazier, 387 F.3d 1244, 1261 (11th
Cir. 2004) (“If admissibility could be established merely by the ipse dixit
of an admittedly qualified expert, the reliability prong would be, for all
practical purposes, subsumed by the qualification prong.”); see also
Charles W. Ehrhardt, 1 Fla. Prac., Florida Evidence § 702.3 (2015 ed.)
(“When an expert is relying primarily on experience, the witness must explain
how that experience leads to the opinion, why the experience is a sufficient
basis for the opinion and how that experience is reliably applied to the
facts.” (citing Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555
F.3d 1331 (11th Cir. 2009), and Primiano v. Cook, 598 F.3d 558 (9th Cir.
2010))). Under section 90.702, as amended, while the expert’s qualifications
may well remain germane, an expert witness must explain the logic and relevance
of the expert opinion.
In the present case, Dr. Tulsiak’s opinions amounted to much
more than ipse dixit. See Booker, 166 So. 3d at 194-95. Cf.
Giaimo, 154 So. 3d at 388 (concluding expert’s testimony was not the
product of reliable principles and methods where the expert was asked how he
arrived at his opinion and stated “ ‘when I was asked and thought about it,
that is the answer that I came up with’ ”). Dr. Tulsiak reviewed the child’s
medical records, the autopsy report, EMS records, and statements from witnesses
who observed Craven’s medical condition in the last hours and minutes of his
life.
more than ipse dixit. See Booker, 166 So. 3d at 194-95. Cf.
Giaimo, 154 So. 3d at 388 (concluding expert’s testimony was not the
product of reliable principles and methods where the expert was asked how he
arrived at his opinion and stated “ ‘when I was asked and thought about it,
that is the answer that I came up with’ ”). Dr. Tulsiak reviewed the child’s
medical records, the autopsy report, EMS records, and statements from witnesses
who observed Craven’s medical condition in the last hours and minutes of his
life.
In support of his opinion that the ambulance should not have
left Craven behind on its first run, Dr. Tulsiak invoked (in addition to his
first-hand knowledge of children’s respiratory problems, his 30 years’
experience as an emergency room physician, and his 25 years as an advisor,
first to Hillsborough County Fire Rescue, and then to Tampa Fire Department,
Rescue Division9), as one salient “reliable principle[
]” EMS’s own protocol requiring transport to a hospital in the event an infant
was experiencing respiratory distress. § 90.702(2), Fla. Stat. Whatever the
precise nature of Craven’s respiratory problems, he stopped breathing,
depriving his brain of oxygen, as explained by Dr. Tulsiak. We reject EMS’s
contention that Dr. Tulsiak’s opinion is unfounded speculation or amounts to no
more than reasoning post hoc, ergo propter hoc. Cf. Perez,
138 So. 3d at 499.
left Craven behind on its first run, Dr. Tulsiak invoked (in addition to his
first-hand knowledge of children’s respiratory problems, his 30 years’
experience as an emergency room physician, and his 25 years as an advisor,
first to Hillsborough County Fire Rescue, and then to Tampa Fire Department,
Rescue Division9), as one salient “reliable principle[
]” EMS’s own protocol requiring transport to a hospital in the event an infant
was experiencing respiratory distress. § 90.702(2), Fla. Stat. Whatever the
precise nature of Craven’s respiratory problems, he stopped breathing,
depriving his brain of oxygen, as explained by Dr. Tulsiak. We reject EMS’s
contention that Dr. Tulsiak’s opinion is unfounded speculation or amounts to no
more than reasoning post hoc, ergo propter hoc. Cf. Perez,
138 So. 3d at 499.
On the contrary, the record makes clear that Dr. Tulsiak’s
testimony was “the product of reliable principles and methods,” and that those
principles and methods were applied “reliably to the facts of the case.” §
90.702, Fla. Stat. His opinions on the standard of care and the consequences of
failing to adhere to that standard are therefore admissible even under Daubert,
whose gatekeeping function was “ ‘not intended to supplant the adversary system
or the role of the jury: “vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.” ‘ ” Adams,
760 F.3d at 1334 (quoting United States v. Ala. Power Co., 730 F.3d
1278, 1282 (11th Cir. 2013)). Accordingly, we reverse the trial court’s
exclusion of Dr. Tulsiak’s testimony and the summary judgment the exclusion
gave rise to, and remand for further proceedings.
testimony was “the product of reliable principles and methods,” and that those
principles and methods were applied “reliably to the facts of the case.” §
90.702, Fla. Stat. His opinions on the standard of care and the consequences of
failing to adhere to that standard are therefore admissible even under Daubert,
whose gatekeeping function was “ ‘not intended to supplant the adversary system
or the role of the jury: “vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.” ‘ ” Adams,
760 F.3d at 1334 (quoting United States v. Ala. Power Co., 730 F.3d
1278, 1282 (11th Cir. 2013)). Accordingly, we reverse the trial court’s
exclusion of Dr. Tulsiak’s testimony and the summary judgment the exclusion
gave rise to, and remand for further proceedings.
Reversed and remanded. (BILBREY, J., CONCURS; OSTERHAUS, J.,
CONCURS IN RESULT WITH OPINION.)
CONCURS IN RESULT WITH OPINION.)
__________________
1Ms. Benoit recalled the events
somewhat differently in an earlier recorded statement in 2007, in which she
acknowledged that a first responder had held a stethoscope to the child’s back
while she was holding him.
somewhat differently in an earlier recorded statement in 2007, in which she
acknowledged that a first responder had held a stethoscope to the child’s back
while she was holding him.
2In addition, he also expressed an
opinion as to the cause of death, concluding it was an airway obstruction
attributable to mucus and bronchospasm. The autopsy revealed the child had
pneumonia but this could have been contracted at Shands on the ventilator. EMS
filed a deposition excerpt suggesting it had an expert who would testify that
traumatic brain injury caused the child’s death. The medical examiner said the
cause of the child’s death could not be determined. She could not rule out
asthma, among other things. She testified, “I think a lot of people would hang
onto the bronchopneumonia.” See also note 5, infra. The trial
court expressly declined to decide the cause of death.
opinion as to the cause of death, concluding it was an airway obstruction
attributable to mucus and bronchospasm. The autopsy revealed the child had
pneumonia but this could have been contracted at Shands on the ventilator. EMS
filed a deposition excerpt suggesting it had an expert who would testify that
traumatic brain injury caused the child’s death. The medical examiner said the
cause of the child’s death could not be determined. She could not rule out
asthma, among other things. She testified, “I think a lot of people would hang
onto the bronchopneumonia.” See also note 5, infra. The trial
court expressly declined to decide the cause of death.
3Although Dr. Tulsiak did not
specifically mention Ms. Benoit’s 2007 recorded statement, he did say he
reviewed it when appellee’s counsel asked him whether he saw one of the
“witness statements” that “said [EMS] did check [the child] with a stethoscope
twice?”
specifically mention Ms. Benoit’s 2007 recorded statement, he did say he
reviewed it when appellee’s counsel asked him whether he saw one of the
“witness statements” that “said [EMS] did check [the child] with a stethoscope
twice?”
4Dr. Tulsiak agreed the requirement
to implement the Respiratory Distress protocol presupposed a patient
experiencing respiratory distress, but he asserted EMS should have been
operating under the protocol given that the subject of the first 911 call was a
child in respiratory distress.
to implement the Respiratory Distress protocol presupposed a patient
experiencing respiratory distress, but he asserted EMS should have been
operating under the protocol given that the subject of the first 911 call was a
child in respiratory distress.
5Separately, the medical examiner
testified subdural hemorrhages discovered in the child’s autopsy “were
insignificant given the age of the child and the small nature of the
subdurals.” She unequivocally concluded: “I do not believe the subdural
hematomas contributed to his death.”
testified subdural hemorrhages discovered in the child’s autopsy “were
insignificant given the age of the child and the small nature of the
subdurals.” She unequivocally concluded: “I do not believe the subdural
hematomas contributed to his death.”
6Although Dr. Tulsiak did not
“question that there was an evaluation done” by EMS after the first 911 call,
he believed the vital signs documented on the EMS report were likely inaccurate.
For example, Dr. Tulsiak questioned the respiratory rate of 20 “[b]ecause we
factually know that the child had a respiratory arrest approximately an hour
later, if not sooner. And that respiratory rate of 20 seemed inconsistent with
a child imminent of a respiratory arrest within an hour.” At the same time, Dr.
Tulsiak conceded that it was possible for a person to have a respiratory rate
of 20 and then experience respiratory arrest within the hour. In addition, Dr.
Tulsiak doubted the child’s lung sounds were clear, as reported by EMS, partly
because the EMS report also noted the child had throat congestion.
“question that there was an evaluation done” by EMS after the first 911 call,
he believed the vital signs documented on the EMS report were likely inaccurate.
For example, Dr. Tulsiak questioned the respiratory rate of 20 “[b]ecause we
factually know that the child had a respiratory arrest approximately an hour
later, if not sooner. And that respiratory rate of 20 seemed inconsistent with
a child imminent of a respiratory arrest within an hour.” At the same time, Dr.
Tulsiak conceded that it was possible for a person to have a respiratory rate
of 20 and then experience respiratory arrest within the hour. In addition, Dr.
Tulsiak doubted the child’s lung sounds were clear, as reported by EMS, partly
because the EMS report also noted the child had throat congestion.
7The parties do not dispute the
medical examiner’s findings on autopsy that a diagnosis of asthma could not be
made histologically. The historical diagnosis of asthma indicated to Dr.
Tulsiak that Craven had a history of respiratory problems, whether or not the
diagnosis was accurate. Dr. Tulsiak relied on the evidence of bronchopneumonia
and congestion found on autopsy, the child’s (perhaps mistaken) diagnosis of
asthma, his clinical presentation, and his ultimate respiratory arrest to
support his opinion that Craven had hyperactive airway disease.
medical examiner’s findings on autopsy that a diagnosis of asthma could not be
made histologically. The historical diagnosis of asthma indicated to Dr.
Tulsiak that Craven had a history of respiratory problems, whether or not the
diagnosis was accurate. Dr. Tulsiak relied on the evidence of bronchopneumonia
and congestion found on autopsy, the child’s (perhaps mistaken) diagnosis of
asthma, his clinical presentation, and his ultimate respiratory arrest to
support his opinion that Craven had hyperactive airway disease.
8Appellant does not argue that
chapter 13-107, section 1, Laws of Florida, in amending section 90.702, Florida
Statutes (2014), effected a change in procedure that must be adopted by the
Florida Supreme Court. See Art. V, § 2(a), Fla. Const. At least where,
as in the present case, the constitutional issue is not raised, First District
precedent teaches “ ‘that the Daubert standard [is] applicable to all
expert testimony.’ ” Giaimo v. Fla. Autosport, Inc., 154 So. 3d 385, 388
(Fla. 1st DCA 2014) (quoting Charles W. Ehrhardt, 1 Fla. Prac., Florida
Evidence § 702.3 (2014 ed.)).
chapter 13-107, section 1, Laws of Florida, in amending section 90.702, Florida
Statutes (2014), effected a change in procedure that must be adopted by the
Florida Supreme Court. See Art. V, § 2(a), Fla. Const. At least where,
as in the present case, the constitutional issue is not raised, First District
precedent teaches “ ‘that the Daubert standard [is] applicable to all
expert testimony.’ ” Giaimo v. Fla. Autosport, Inc., 154 So. 3d 385, 388
(Fla. 1st DCA 2014) (quoting Charles W. Ehrhardt, 1 Fla. Prac., Florida
Evidence § 702.3 (2014 ed.)).
9In applying Daubert, the court
in Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010), said:
in Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010), said:
“Despite
the importance of evidence-based medicine, much of medical decision-making
relies on judgment — a process that is difficult to quantify or even to assess
qualitatively. Especially when a relevant experience base is unavailable,
physicians must use their knowledge and experience as a basis for weighing
known factors along with the inevitable uncertainties” to “mak[e] a sound
judgment.”
the importance of evidence-based medicine, much of medical decision-making
relies on judgment — a process that is difficult to quantify or even to assess
qualitatively. Especially when a relevant experience base is unavailable,
physicians must use their knowledge and experience as a basis for weighing
known factors along with the inevitable uncertainties” to “mak[e] a sound
judgment.”
(citation omitted).
__________________
(OSTERHAUS, J., concurring in result with opinion.) I concur
with my colleagues’ conclusion that Dr. Tulsiak’s expert testimony should not
have been excluded. His testimony could be applied reliably under Daubert
to at least one competing version of the facts; if, for instance, the child was
in respiratory distress and EMS failed to evaluate his airway and transport him
for medical care as required by its published protocol.
with my colleagues’ conclusion that Dr. Tulsiak’s expert testimony should not
have been excluded. His testimony could be applied reliably under Daubert
to at least one competing version of the facts; if, for instance, the child was
in respiratory distress and EMS failed to evaluate his airway and transport him
for medical care as required by its published protocol.
I do not, however, join the majority opinion’s inapplicable Frye-based
discussion, nor its suggestion in a footnote that a constitutional challenge to
the Daubert standard in § 90.702, Florida Statutes, might have netted a Frye-based
analysis. Neither party argued that the Frye test applied here. And even
if they had, our court’s decisions have correctly required the 2013
modifications to § 90.702 to be applied to ascertain the admissibility of
expert opinion. See, e.g., Perry v. City of St. Petersburg,
171 So.3d 224, 225 (Fla. 1st DCA 2015) (remanding with directions to apply the Daubert
test as codified in the Florida Evidence Code).
discussion, nor its suggestion in a footnote that a constitutional challenge to
the Daubert standard in § 90.702, Florida Statutes, might have netted a Frye-based
analysis. Neither party argued that the Frye test applied here. And even
if they had, our court’s decisions have correctly required the 2013
modifications to § 90.702 to be applied to ascertain the admissibility of
expert opinion. See, e.g., Perry v. City of St. Petersburg,
171 So.3d 224, 225 (Fla. 1st DCA 2015) (remanding with directions to apply the Daubert
test as codified in the Florida Evidence Code).
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