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From Products Liability Law Daily, October 16, 2018

Frye standard still applies to expert testimony in Florida state courts; asbestos verdict reinstated

By David Yucht, J.D.

The Florida Supreme Court reversed an appellate court order that threw out an $8 million jury verdict in favor of a mesothelioma victim who had sued a valve and pump manufacturer and several cigarette companies. The state high court determined that the lower court had used an incorrect test for assessing expert testimony. Florida courts should apply the law as set forth in Frye v. United States (293 F. 1013 (D.C. Cir. 1923)) rather than Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)) despite a Florida statute to the contrary (DeLisle v. Crane Co., October 15, 2018, Quince, P.).

A mesothelioma victim filed a personal injury action against several companies, including a valve and pump manufacturer that used gaskets containing chrysotile asbestos fibers and a number of cigarette companies that had previously included asbestos in their filters. Following a preliminary evidentiary hearing, the victim called several expert witnesses to testify in front of the jury about causation. A toxicologist, for example, testified as to causation, and an environmental scientist tested asbestos-containing products for fiber release. A pulmonologist reviewed studies by both the toxicologist and the environmental scientist to determine that asbestos-containing cigarettes were a substantial contributing factor to mesothelioma. In addition, an industrial hygienist relied on the toxicologist’s testing to opine on the victim’s exposure. Following trial, the jury found in favor of the victim and awarded him $8 million. An intermediate appellate court reviewed the proceedings and, based on Daubert, found that the trial court failed to properly exercise its "gate keeping function" as to the testimony of the victim’s expert witnesses [see Products Liability Law Daily’s September 15, 2016 analysis]. The appellate court ordered a new trial as to the cigarette companies and ordered a directed verdict, dismissing the case as to the valve and pump manufacturer. The victim appealed to the Florida Supreme Court.

Frye standard. The state high court reversed the appellate court because the medical causation testimony was not new or novel and was not subject to analysis under Frye, which was the law that should have been applied here rather than Daubert. Furthermore, because the causation of mesothelioma was neither new nor novel, the trial court’s acceptance of the expert testimony was proper.

Generally, the Florida Legislature has the power to enact substantive evidence laws, whereas the Florida Supreme Court has the power to enact procedural evidence rules. Through the statute in question here, the Legislature attempted to adopt the federal rule established in Daubert and cease the application of the Frye test that had repeatedly been approved by the Florida Supreme Court.

In Daubert, the U.S. Supreme Court found that otherwise probative and scientifically valid evidence was being excluded under the Frye standard and that a change was necessary in federal courts to permit additional relevant evidence to be considered. However, the Florida Supreme Court had continued to apply Frye to guarantee the reliability of new or novel scientific evidence. According to the Florida high court, Frye relies on the scientific community to determine reliability, whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. Despite the Florida high court’s rulings, the Florida Legislature amended the law to incorporate Daubert into the Florida Rules of Evidence. This amendment to the evidence rules was not substantive because it did not create, define, or regulate a right. Rather, it was procedural because it solely regulated the action of litigants in court proceedings. As such, the state high court ruled that this statute unconstitutionally infringed on its authority. The Florida Supreme Court re-affirmed that Frye, not Daubert, was the appropriate test in Florida courts.

The case is No. SC 16-2182.

Attorneys: James L. Ferraro (The Ferraro Law Firm, PA) for Richard Delisle. Paul F. Hancock (K & L Gates, LLP) for Crane Co. Elliot H. Scherker (Greenberg Traurig, PA) for R.J. Reynolds Tobacco Co.

Companies: Crane Co.; R.J. Reynolds Tobacco Co.

MainStory: TopStory ExpertEvidenceNews AsbestosNews CausationNews DamagesNews SCLIssuesNews TobaccoProductsNews FloridaNews

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