138 So.3d 492 (Fla.App. 3 Dist. 2014), 3D11-445, Perez v. Bell South Telecommunications, Inc.

Docket Nº3D11-445
Citation138 So.3d 492, 39 Fla. L. Weekly D 865
Opinion JudgeSHEPHERD, C.J.
Party NameOsmany Anthony Perez, etc., et al., Appellants, v. Bell South Telecommunications, Inc., etc., et al., Appellees
AttorneyAssouline & Berlowe and Peter E. Berlowe; The Law Offices of Anthony & Associates and Bradley A. Silverman, for appellants. Mark R. Boyd, Scott A. Markowitz, and Mary M. Schneider (Fort Lauderdale), for appellees.
Judge PanelBefore SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
Case DateApril 23, 2014
CourtCourt of Appeal of Florida (US), Third District

Page 492

138 So.3d 492 (Fla.App. 3 Dist. 2014)

39 Fla. L. Weekly D 865

Osmany Anthony Perez, etc., et al., Appellants,

v.

Bell South Telecommunications, Inc., etc., et al., Appellees

No. 3D11-445

Florida Court of Appeal, Third District

April 23, 2014

Released for Publication May 14, 2014.

Page 493

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 06-18693. Victoria S. Sigler, Judge.

Assouline & Berlowe and Peter E. Berlowe; The Law Offices of Anthony & Associates and Bradley A. Silverman, for appellants.

Mark R. Boyd, Scott A. Markowitz, and Mary M. Schneider (Fort Lauderdale), for appellees.

Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.

OPINION

Page 494

SHEPHERD, C.J.

Osmany Anthony Perez, a minor, by and through his mother and next friend, Maria Franco Perez, appeals an adverse summary judgment in a negligence case rendered after the trial court struck the only medical expert testimony linking his premature birth, resulting surgeries, and developmental deficits to workplace stress. The workplace stress arose from the alleged failure of Maria's employer, Bell South Telecommunications, Inc., to limit her work hours to forty hours a week and allow frequent bathroom breaks. The trial court found the testimony to be inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since then, the Florida Legislature has amended the Florida Evidence Code to employ the United States Supreme Court's more recently promulgated " Daubert test," 1 to gauge the admissibility of expert testimony in the stead of the older " Frye test." After obtaining supplemental briefing from the parties on the applicability of the Daubert test to the facts of this case, we find affirmance would be in order under either the former or more recently adopted statutory test.2 A brief summary of the factual and procedural background of the case is necessary to explain our decision.

Factual and Procedural History

Maria Franco Perez became pregnant with her first child, Osmany Anthony Perez, while employed as a call center operator by appellee, Bell South. She was twenty-six years old at the time, and her treating physician, Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, classified Ms. Perez's pregnancy as " high risk" at the time of her first visit to his office on May 5, 2004. The visit concluded with Dr. Cardella recommending a week of bed rest, owing to Ms. Perez's report of vaginal spotting.

Ms. Perez's prior medical history indicated several conditions and procedures which contributed to her high-risk pregnancy. In the years before, she had undergone gastric surgery due to obesity, which included the placement of gastric bands around her stomach to reduce intake. Despite the gastric surgery, Ms. Perez remained obese. Additionally, Ms. Perez had suffered two herniated discs, had back surgery, and had her gall bladder removed prior to her pregnancy with Osmany Perez.

At Ms. Perez's office visit on July 30, 2004, Ms. Perez reported being " put[] under a lot of stress" at work. Dr. Cardella gave her a note for her employer stating " Patient can only work a max of 40 hours a week due to high risk pregnancy" and " [p]lease allow frequent bathroom breaks." On August 11, 2004, Ms. Perez was fired for non-performance. Two days later, on August 13, 2004, Ms. Perez suffered a placental abruption3 and delivered her

Page 495

child, Osmany Anthony, twenty weeks early. Dr. Cardella opined in his deposition that workplace stress, exacerbated by Bell South's alleged refusal to accommodate Ms. Perez's medical condition, was the causal agent of the abruption and early delivery of her son with medical consequences.4,5 Dr. Cardella's testimony is the only testimony linking Osmany's premature birth to Bell South.

However, Dr. Cardella testified there was no way of ever knowing for sure what caused Maria's placental abruption.6 In fact, Dr. Cardella testified that his conclusions were purely his own personal opinion, not supported by any credible scientific research:

Q. Have there been any studies that you're aware of that have shown stress to be a factor in determining the likelihood of a placental abruption?

A. Studies, no, but I have my opinion about that. Q. All right, and we've talked about that. A. Correct. Q. My question is have there been any, do you know of any studies that have shown a connection between stress and placental abruption? A. No, sir. Q. Do you know of any medical literature that shows a correlation between stress and placental abruption? A. No, sir. Q. Do you know of any individual in your field that has spoken at a medical meeting or society or convention and has stated that stress causes placental abruption? A. No, sir. Q. You taught at the University of Miami? A. Yes, sir. I did. Q. Medical school? A. During the residency program I was an attending physician and I taught the residents. Once in awhile [sic] we'd give a lecture to the medical students. Q. Okay. So the teaching you did was to? A. Residents. Q. Fellow residents? A. No, no, no. I had already graduated and I was the attending physician. Q. When you were giving those talks, did you ever give a talk where you said there's a correlation between stress and placental abruption? A. No, sir. Q. Have you ever heard of anybody making that statement? A. I don't recall. Page 496

Q. Okay. You said you have an opinion?

A. Yes, sir. Q. What is your opinion? This is your personal opinion? A. Yes, sir. It is; after 21 years of practice, absolutely. If stress can cause a cardiac arrest, causing your blood pressure to go up, to go high, I'm sure there may very well be a correlation between placental abruption and stress.

(emphasis added).7

When asked to explain the basis of his opinion in this case, the only rationale Dr. Cardella could muster was that Ms. Perez worked during her first pregnancy, but did not work during the pregnancy leading to the birth of her second child on October 26, 2007.8 This analysis, argue the appellants, comprises an admissible differential diagnosis supporting Dr. Cardella's workplace stress theory of placental abruption.

The trial court disagreed. It struck Dr. Cardella's opinion as inadmissible under Frye . A few months thereafter, the trial court granted Bell South's motion for summary judgment for failure of the plaintiff to proffer admissible evidence to prove causation. Ms. Perez asserts on appeal that the testimony is admissible as " pure opinion" testimony under Marsh v. Valyou, 977 So.2d 543 (Fla. 2007).

Analysis

The admissibility of expert testimony in this state is governed by section 90.702 of the Florida Evidence Code. Until recently, there were two avenues under this rule to the admissibility of expert testimony under Florida law. First, if the proposed expert testimony espoused a " new or novel" scientific theory, principle or discovery, then " the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs." See Marsh, 977 So.2d at 546 (quoting Frye, 293 F. at 1014) (emphasis added). This path to admissibility is commonly known as the " Frye test." In Frye, the " thing" the D.C. Circuit found to lack " general acceptance" in its field was the result of a " systolic blood pressure deception test," an early polygraph. Id.

The second path to admissibility of expert testimony until recently was the " pure opinion" path. Under this path, if the proposed testimony is not " new or novel," but instead is based upon the expert's personal experience, observation, and training, the Frye test does not apply to the ultimate opinion of an expert, so long as the methods used to reach the opinion were generally accepted scientific methods under Frye . See Marsh, 977 So.2d at 548-49. Examples of expert testimony found admissible as " pure opinion" include: testimony of a neurologist, based upon clinical experience alone, that the failure of physicians to perform a caesarian operation on a mother in labor caused brain damage to her child at birth, Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005); testimony of an

Page 497

ophthalmologist, based on experience and training, that the exposure of an eye to polychlorinated biphenyles (PCB's) causes cataracts, Florida Power & Light Co. v. Tursi, 729 So.2d 995, 996-97 (Fla. 4th DCA 1999); testimony of medical experts of recognized relationship or association between trauma and the onset of fibromyalgia, based on clinical experience, State Farm Mut. Auto. Ins. Co. v. Johnson, 880 So.2d 721, 722-23 (Fla. 2d DCA 2004); see generally 24A Fla. Jur. Evidence, § 1104.9

In 2013, the Florida legislature amended section 90.702 of the Florida Evidence Code " to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)" and as " reaffirmed and refined" by both General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (199...

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22 practice notes
  • No ideas but in things: a practitioner's look at demonstrative evidence.
    • United States
    • Florida Bar Journal Vol. 89 Nbr. 10, December 2015
    • December 1, 2015
    ...Ltd. v. Carmichael, 522 U.S. 136, 143 (1997); Ch. 2013-107, [section]1, LAWS OF FLA. (2013); Perez v. Bell S. Telecommunications, Inc., 138 So. 3d 492, 497 (Fla. 3d DCA 2014). (63) Booker v. Sumter County Sheriff's Office/N. Am. Risk Services, 166 So. 3d 189, 193 (Fla. 1st DCA 2015). Specif......
  • Adoption of Daubert in the amendment to F.S. [section] 90.702 tightens the rules for admissibility of expert witness testimony.
    • United States
    • Florida Bar Journal Vol. 88 Nbr. 8, September 2014
    • September 1, 2014
    ...Frye Standard. 86 Fla. B. J. 41 (Feb. 2012). (3) Fla. Stat. [section] 90.702 (2013). (4) Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 498 (Fla. 3d DCA 2014). (5) Frye, 293 F. at 1014. (6) Id. (7) Hood v. Matrixx Initiatives, Inc., 50 So. 3d 1166 (Fla. 4th DCA 2011); Marsh v......
  • 294 So.3d 390 (Fla.App. 4 Dist. 2020), 4D18-1277, Torrez v. State
    • United States
    • Florida Court of Appeal of Florida (US) Fourth District
    • April 22, 2020
    ...Kemp v. State, 280 So.3d 81, 88 (Fla. 4th DCA 2019) (citation omitted); see also Perez v. Bell S. Telecomms., Inc., 138 So.3d 492, 494 (Fla. 3d DCA 2014) (applying Daubert retrospectively and concluding that affirmance was warranted under either Frye, the standard c......
  • Royal Caribbean Cruises, Ltd. v. Spearman, 042821 FLCA3, 3D18-2188
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • April 28, 2021
    ...Iderstine's unsupported speculation is not sufficient to pass muster under Daubert. See Perez v. Bell S. Telecomms., Inc., 138 So.3d 492, 499 (Fla. 3d DCA 2014) (holding that "[s]ubjective belief and unsupported speculation are henceforth inadmissible"). V......
  • Request a trial to view additional results
20 cases
  • 294 So.3d 390 (Fla.App. 4 Dist. 2020), 4D18-1277, Torrez v. State
    • United States
    • Florida Court of Appeal of Florida (US) Fourth District
    • April 22, 2020
    ...Kemp v. State, 280 So.3d 81, 88 (Fla. 4th DCA 2019) (citation omitted); see also Perez v. Bell S. Telecomms., Inc., 138 So.3d 492, 494 (Fla. 3d DCA 2014) (applying Daubert retrospectively and concluding that affirmance was warranted under either Frye, the standard c......
  • Royal Caribbean Cruises, Ltd. v. Spearman, 042821 FLCA3, 3D18-2188
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • April 28, 2021
    ...Iderstine's unsupported speculation is not sufficient to pass muster under Daubert. See Perez v. Bell S. Telecomms., Inc., 138 So.3d 492, 499 (Fla. 3d DCA 2014) (holding that "[s]ubjective belief and unsupported speculation are henceforth inadmissible"). V......
  • Larocca v. State, 011520 FLCA4, 4D18-1824
    • United States
    • Florida Court of Appeal of Florida (US) Fourth District
    • January 15, 2020
    ...Kemp v. State, 280 So.3d 81, 88 (Fla. 4th DCA 2019) (citation omitted); see also Perez v. Bell S. Telecomms., Inc., 138 So.3d 492 (Fla. 3d DCA 2014) (applying Daubert retrospectively and concluding that affirmance was warranted under Frye, the standard considered by......
  • Bunin v. Matrixx Initiatives, Inc., 060116 FLCA4, 4D14-3579
    • United States
    • Florida Court of Appeal of Florida (US) Fourth District
    • June 1, 2016
    ...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 excl......
  • Request a trial to view additional results
2 books & journal articles

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