Last month’s divided ruling of In re: Amendments to the Florida Evidence Code, came as something of a shock to courts and South Florida injury attorneys, given that the state high court had ruled on this very matter in October – and came down firmly on the other side. Justices in the majority cited serious constitutional concerns and procedural issues.

Now, the majority has ruled those “grave concerns” for constitutional rights and procedure were “unfounded.”

Give that legal precedent is inherently slow by design and this was an abrupt reversal of the court’s own ruling took many by surprise. Although these evidence standards are applicable to expert witnesses for both sides, the truth is that because prosecutors/plaintiffs bear the proof burden, it is the defense that benefits most from Daubert.

Why Did Florida Flip-Flop on Frye?

For 70 years starting in 1923, the Frye test was considered the national standard for filtering “junk science” from submitted evidence. Precedent began with the U.S. Supreme Court’s ruling in Frye v. U.S, and was pretty much universal by the 1970s.

The Frye precedent was set with the U.S. Supreme Court’s ruling in Frye v. U.S. as a means to prevent the admission of “junk science.” (At issue in that criminal case was the lower court’s refusal to allow the defendant to help prove his innocence through what was basically an early version of the lie detector test.) The court held that in order for scientific evidence/expert witness testimony to be admitted, it had to be sufficiently based on established science and generally accepted among relevant scientific communities.

But in the ensuing decades, as technology, medicine and other sciences advanced, many began to argue the Frye test was far too simplistic.

In 1993, the U.S. Supreme Court weighed a case of alleged product liability against a drug company whose medication reportedly caused severe birth defects in two siblings. That case was Daubert v. Merrell Dow Pharmaceuticals, Inc.. The high court offered a more intensive, three-part analysis for determining admissibility of scientific evidence, establishing the judge as the gatekeeper and asking whether the evidence/testimony is backed by a breadth of objective fact, whether it’s relevant and uses scientific methods and principles and whether these recognized methods were appropriately applied to the facts of the case.

Soon after, the court approved Rule 702 of the Federal Rules of Evidence, which made Daubert the new standard in both criminal and injury litigation, and many (but not all) states fell in line soon thereafter. Florida, along with about a dozen others, stuck with the more lenient standard.

Twenty years after Daubert was established, state lawmakers in Florida passed (and then-governor signed) a bill amending the Florida Evidence Code used by state courts to adopt Daubert. This caused confusion when the Florida Supreme court deemed this an overreach by the executive and legislative branches. Citing constitutional concerns, they affirmed Frye as the standard for expert witness vetting in Florida and did so again just last year.

The change comes about almost certainly because the political makeup of the court appointments by Gov. Ron DeSantis, tipping the court’s ideology conservative and prompting a second look at their most recent case, DeLisle v. Crane Co., wherein the court held the previous “grave constitutional constitutional concerns” cited by the now-retired justices were “unfounded.”

DeLisle v. Crane Co., holding in October the case didn’t present proper controversy for them to consider Daubert’s constitutionality and Frye was the appropriate evidence standard in Florida.

Why Civil Injury Case Lawyers Loathe Daubert

Important to note: More lenient doesn’t mean less effective. In fact, there are many Fort Lauderdale personal injury lawyers – especially those practicing medical malpractice, product liability and wrongful death – who argue Daubert is the least effective of the two. It is time-consuming, requires a mini-trial before the trial – sometimes immediately preceding the trial.

Daubert cases tend to experience more delays, consume more resources and are harder to win. If the defense raises a Daubert challenge, most plaintiff attorneys won’t try to wing it with an expert on a conference call during the evidentiary hearing. They’ll want them present. These challenges also require additional preparation time for the witness, an expenses passed on the client.

Even when a case isn’t likely to go to trial, concern of a successful Daubert defense challenge might compel some lawyers into settling a case for less than it’s worth.

If you are seriously injured in Florida, it is imperative now more than ever to carefully choose an attorney with the experience and resources to successfully fight for your rights.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

In re: Amendments to the Florida Evidence Code, May 15, 2019, U.S. Supreme Court

Recently, Florida’s Third District Court of Appeal sided with a plaintiff in a Florida injury lawsuit, finding the hospital’s alleged liability for injuries sustained when another patient beat him up were not rooted in failure to abide medical standards, but rather those set forth in general negligence. In so ruling, the court reversed the trial court’s dismissal of the case, reviving the claim and giving the injury plaintiff another shot at recovering damages.

Florida Injury Lawsuit Sounds in Ordinary Negligence, Not Medical Malpractice

According to court records, plaintiff was a resident patient at a psychiatric hospital operated by defendant in the fall of 2013 when a fellow resident entered plaintiff’s room and, armed with a metal handrail that had been removed form the hallway wall, beat plaintiff about the face and head. Plaintiff’s subsequent Florida injury lawsuit alleged the hospital was negligent in failing to provide him with security and for its failure to train staff to recognize and address emergency situations, such as the assault and battery that led to his injuries. Plaintiff asserted hospital breached these duties by failing to correct the situation or train its staff or control its patients prior to the assault.

Defendant hospital sought to dismiss the Florida injury lawsuit in Miami-Dade, asserting that despite how plaintiff had labeled his claims, they were actually medical negligence. Were that the case (as defense argued), plaintiff’s claim would fail because he did not provide defendant hospital with the required pre-suit notice as mandated by Florida personal injury statute, and further, he did not submit testimony from an expert witness to support the claim that the hospital had breached the prevailing professional standard of care. The hospital argued that because the alleged damages rose out of the rendering (or alleged failure to render) medical care or services, this was in turn a medical malpractice lawsuit. The trial court agreed.

In its reversal, the 3rd DCA noted that statutory restrictions on medical malpractice claims can make a plaintiff’s path to success in litigation “significantly more formidable than a claim that sounds in ordinary negligence.” There’s the shorter statute of limitations (two years for medical malpractice claims versus four years for personal injury), the pre-suit notice to defendant requirements and a number of other proof restrictions. For this reason, courts must be careful about how they weigh a defendant’s assertion that a claim sounds in medical negligence rather than ordinary negligence.

Here, although defendant argued plaintiff’s claim implicated Florida’s medical malpractice standard of care (i.e., staff training and supervision), the act that caused plaintiff’s injury was not a direct result of the hospital’s administration of medical care or services that required professional judgment or skill. Thus, this Florida injury lawsuit was not one that needed to be filed for medical malpractice. They were not based in acts directly related to medical care or treatment that would have required examination of the medical malpractice standard of care.

The case was referred back to the trial court with instructions to proceed a a claim of ordinary negligence.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Simmons v. Jackson Memorial Hospital etc. et al, Aug. 1, 2018, Florida’s Third District Court of Appeal

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As The New York Times reported, one of those measures would impose new limits on lawsuits involving care that is covered by Medicare, Medicaid or private health insurance subsidized by the Affordable Care Act, with some limits applying to product liability claims as well as medical malpractice litigation involving physicians, hospitals and nursing homes. In effect, it is lower income and older people who would find it the most difficult to win lawsuits for injuries caused by defective drugs, defective medical devices or negligent medical care. This bill is part of the plan to replace the Affordable Care Act.

Proponents of the measure say it is a necessary means to lower the number of “frivolous lawsuits” that drive up health care costs for everyone else. Of course, this assertion has been disproven time and again. Take for example the Florida Supreme Court’s decision in 2014 rejecting a 2003 medical malpractice law and lambasting the legislature for manufacturing an alleged medical malpractice crisis that didn’t exist to pass unnecessary tort reform. In a 5-2 ruling, the court suggested lawmakers created the crisis to cap damages on medical malpractice cases, which saves a modest amount of money for many at a “devastating” cost on a few – namely those who have suffered the most severe and egregious injuries due to medical negligence or defective medical products. The law was ultimately deemed unconstitutional under the state’s equal protection clause.

The new federal bill would allow doctors to decrease their use of diagnostic tests and services to combat so-called “defensive medicine,” which they allege drives up the cost of care. However, opponents of the bill note that it would deny full recovery of damages to victims of medical malpractice, including those who had suffered an egregious medical error, such as when an object is left inside a patient’s body during surgery or when surgery is conducted on the wrong body part. Even in those cases, the bill would limit damage recovery to $250,000 in non-economic damages (which includes damages for pain and suffering).

In addition, another measure coined the “Fairness in Class Action Litigation Act” would allow class-action lawsuits to continue in federal court only if every person in the class presented the same type and scope of injury.

And yet another law, called the Lawsuit Abuse Reduction Act, would mandate federal judges impose sanctions on attorneys whose lawsuits are later deemed to be frivolous. As our Fort Lauderdale personal injury attorneys can explain, the effect could be chilling. Attorneys would be reticent to bring even valid claims with the threat of sanctions looming over them.

There has been criticism that that proponents of tort reform measures (which in years past had failed to gain much traction) are now moving at lightning speed through the House – without congressional hearings. Even some Republicans have been critical of this fact, citing a lack of transparency in the process as troubling.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

House GOP quietly advances key elements of tort reform, March 9, 2017, By Kimberly Kindy, The Washington Post

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