Florida Top Court to Weigh Proper Evidence Rule in Complex Cases

By Bruce Kaufman

The Florida Supreme Court will hear oral argument March 6 on whether state courts or the legislature have the final say on the appropriate standard for scientific evidence in Florida courtrooms.

The dispute is nominally over whether reliable expert testimony backed an $8 million verdict for plaintiff Richard DeLisle, who linked his mesothelioma to exposure to asbestos filters in the Kent cigarettes he smoked in the 1950s and to Cranite gaskets at a paper mill where he worked in the 1960s.

But the real high-stakes battle is over whether the state legislature could unilaterally supplant the state supreme court’s long-time Frye standard for assessing scientific testimony with a new, ostensibly more stringent, rule mirroring the federal Daubert standard.

The case has drawn substantial attention from business-backed groups that stand to gain if the new standards are adopted and product liability cases like this one, based on complex theories of medical causation, become harder to prove.

Plaintiffs’ groups, which seemed to have lost the battle against Daubert years ago, may now have a second chance.

The attempt to impose the Daubert standard infringes on the Florida Supreme Court’s “exclusive authority over the rules of practice and procedure,” the pro-plaintiff Florida Association for Justice said in a brief supporting the plaintiff.

Florida Attorney General Pamela Jo Bondi (R) defended the 2013 statute. She urged the court not to break new ground on the sometimes-elusive distinction between substance and procedure governing the admissibility of evidence.

The state supreme court, however, denied the attorney’s general request for 10 minutes of argument time. The parties will split 40 minutes.

Controversial Asbestos Causation Theory

The defendants contend the jury was swayed by the plaintiff’s chief causation expert. Toxicologist Dr. James G. Dahlgren relied on a disputed “cumulative exposure” theory suggesting every exposure to asbestos was a “substantial contributing cause” of DeLisle’s illness, they say.

The defendants—gasket maker Crane Co., R.J. Reynolds Corp., and former cigarette filter maker Hollingsworth & Vose Co.— said an appeals court correctly threw out the verdict because the expert testimony ran afoul of Daubert.

That standard, established for federal cases by the U.S. Supreme Court in Daubertv. Merrell Dow Pharmaceuticals, requires trial judges to ensure expert testimony is the product of a sound methodology before admitting it at trial.

But the Florida Supreme Court never agreed to the legislative changes. It administratively rejected the rules change in February 2017 citing “grave constitutional concerns” that the Daubert standard would restrict access to courts and compromise the right to a jury trial.

This rejection left in place the Frye standard, adopted by the Florida Supreme Court in 1985, DeLisle said.

The century-old Frye test, from Frye v. United States, was developed to evaluate then-novel polygraph testimony. It examines whether novel scientific testimony is based on generally accepted theories in the relevant scientific community.

Under that test, the verdict should stand, DeLisle said. The defendants argue the evidence was so scientifically flawed that it fails under either test.

The top court must decide whether the law embracing the federal Daubert rule was “solely procedural,” or a change to the “substantive law” of Florida. If the former, it’s invalid; if the latter, the stricter standard must be applied.

Although most states have embraced the federal standard, California, New York, Pennsylvania, and Illinois are prominent holdouts.

New Jersey embraces aspects of both standards and is set to decide whether to fully adopt the Daubert standard.

Defense-oriented Florida Justice Reform Institute thinks the supreme court shouldn’t resolve the constitutional question. No lower tribunal has examined the issue, the group said.

This result would still aid the defendants as it would leave the intermediate court ruling rejecting the evidence in place.

Defense Groups’ Worries

The Florida Defense Lawyers Association argued the change was substantive because the intent was to ensure the reliability of expert testimony, correct prior law, and safeguard Florida courts against “forum shopping.”

The amendment sought to ensure and protect the substantive right to reliable expert testimony and to discourage frivolous lawsuits, it said.

Washington Legal Foundation also urged Florida to abandon Frye.

Daubert requires judges to scrutinize both the methodology used and the expert’s application of it. Frye evaluates only whether the scientific technique on which expert evidence purportedly relies is generally accepted. It thus permits expert evidence derived from an improper application of a “generally accepted” technique to be admitted to the jury, Washington Legal Foundation said.

Daubert provides a more robust and consistent framework for excluding unreliable scientific evidence from the jury’s consideration,” itsaid.

Existing Rule Repeatedly Reaffirmed

Backing the plaintiff are the Florida Justice Association and a group of 44 scientists.

The Frye standard has been repeatedly reaffirmed by the state supreme court, FJA said.

“The Daubert Amendment has not created a more effective screen; rather, it has served to do nothing more than increase procedural hurdles, delays, and costs in the justice system,” it said.

Each Side Boasts Scientific Backing

Each side has backing from distinguished scientists.

Six scientists supporting the defendants said the plaintiffs’ expert evidence on medical causation should have been inadmissible under Daubert or Frye.

The plaintiffs’ theory of exposure is not testable or verifiable, and thus is “inconsistent with the scientific method itself.”

Scientists supporting DeLisle didn’t weigh in on evidentiary standards, but strongly backed the scientific legitimacy of the plaintiffs’ expert’s challenged opinions.

The “narrative advanced by the asbestos industry” here, that an “expert who embraces this evidence is, in reality, stating that ‘each and every exposure,’” could cause mesothelioma, was at best a misstatement of the actual testimony, they said.“At worst, it is intellectual dishonesty and an attempt to deceive the court. The consensus that lifetime cumulative exposure to asbestos is the cause of mesothelioma is a cornerstone of medicine and science; what makes for a significant or ‘substantial’ exposure under the law is a different topic altogether,” the group said.

Plaintiffs’ attorneys include Ferraro Law Firm and Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman.

The Florida Justice Association brief was filed by Creed & Gowdy and others. The scientists’ brief backing the plaintiff was filed by Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor.

R.J. Reynolds and Hollingsworth & Vose are represented by Greenberg Traurig. Crane is represented by K&L Gates.

The Florida Justice Reform Institute brief was filed by GrayRobinson. The Florida Defense Lawyers Association brief was filed by Boyd & Jenerette. The scientists’ brief backing the defendants was field by Holland & Knight.

The case is DeLisle v. Crane Co. , Fla., No. SC16-2182, oral argument 3/6/18 .

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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