977 So.2d 543 (Fla. 2007), SC06-118, Marsh v. Valyou

Docket NºSC06-118.
Citation977 So.2d 543, 32 Fla. L. Weekly S 750
Opinion JudgePER CURIAM.
Party NameJill MARSH, Petitioner, v. Robert Earl VALYOU, Jr., et al., Respondents.
AttorneyJohn T. Stemberger and Shannon L. Akins, Orlando, FL, for Petitioner., Joseph Currier Brock and Steven W. Igou of Igou and Smith, Elizabeth C. Wheeler, E. Peyton Hodges and Robert W. Mixson of Cameron, Hodges, Coleman, LaPointe and Wright, P.A., Orlando, FL, and Jane H. Clark, Ocoee, FL, for Resp...
Case DateNovember 21, 2007
CourtUnited States State Supreme Court of Florida

Page 543

977 So.2d 543 (Fla. 2007)

32 Fla. L. Weekly S 750

Jill MARSH, Petitioner,

v.

Robert Earl VALYOU, Jr., et al., Respondents.

No. SC06-118.

Florida Supreme Court

November 21, 2007

Rehearing Denied March 10, 2008.

Application for Review of the Decision of the District Court of Appeal - Certified Direct Conflict of Decisions, Fifth District - Case No. 5D03-188, Orange County.

Page 544

John T. Stemberger and Shannon L. Akins, Orlando, FL, for Petitioner.

Joseph Currier Brock and Steven W. Igou of Igou and Smith, Elizabeth C. Wheeler, E. Peyton Hodges and Robert W. Mixson of Cameron, Hodges, Coleman, LaPointe and Wright, P.A., Orlando, FL, and Jane H. Clark, Ocoee, FL, for Respondents.

Philip M. Burlington of Burlington and Rockenbach, P.A., West Palm Beach, FL, and Michael S. Finch, Stetson University College of Law, Gulfport, FL, on behalf of Academy of Florida Trial Lawyers; and Tracy Raffles Gunn of Fowler, White, Boggs, and Banker, P.A., Tampa, FL, on behalf of Florida Defense Lawyers Association, as Amicus Curiae.

PER CURIAM.

In this case, we decide whether Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), applies to expert testimony causally linking trauma to fibromyalgia. We review Marsh v. Valyou, 917 So.2d 313 (Fla. 5th DCA 2005), which certified conflict with State Farm Mutual Automobile Insurance Co. v. Johnson, 880 So.2d 721 (Fla. 2d DCA 2004). In Marsh, the Fifth District Court of Appeal held that Frye does apply and, applying that test, held the testimony inadmissible. See Marsh, 917 So.2d at 327, 329.

Page 545

The Second District Court of Appeal, on the other hand, concluded that Frye did not apply. Johnson, 880 So.2d at 723. We have jurisdiction to resolve the certified conflict, see art. V, § 3(b)(4), Fla. Const., and granted review. See Marsh v. Valyou, 940 So.2d 1125 (Fla. 2006) (granting review). We conclude that Frye does not apply to expert testimony causally linking trauma to fibromyalgia and that, even if it did, such testimony satisfies it. Therefore, we quash Marsh and approve the conflicting opinion in Johnson.

I. FACTS AND PROCEDURAL HISTORY

After sustaining injuries in four separate car accidents between August 1995 and January 1998, the petitioner, Jill Marsh, filed a negligence action against a series of four defendants--the Valyous; the Burkes; PVC Holding Corp., d/b/a Avis Rent-a-Car ("Avis"); and Scott David Chilcut (no longer a party). Marsh, 917 So.2d at 315. She claimed the accidents caused fibromyalgia, which is a "syndrome of widespread pain, a decreased pain threshold, and characteristic symptoms including non-restorative sleep, fatigue, stiffness, mood disturbance, irritable bowel syndrome, headache, paresthesias, and other less common features." Id. (quoting Frederick Wolfe, et al., The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability, 23 J. Rheumatology 534, 534 (1996) [hereinafter Consensus Report]).

Avis moved to preclude Marsh from presenting expert testimony that the accidents caused her fibromyalgia, arguing that the testimony did not meet the Frye standard for admissibility because the premise that trauma can cause fibromyalgia had not been generally accepted in the scientific community. Id. The trial court held a Frye hearing and, after reviewing numerous documents related to fibromyalgia and hearing arguments of counsel, granted the motion. Id. at 315-17. It later became apparent that Marsh intended to introduce evidence that the accidents caused "myofascial pain syndrome" (MPS). Id. at 318. Again, Avis challenged the testimony under Frye and the trial court precluded evidence of a causal link between trauma and MPS. Id. Marsh then announced she had no claims apart from fibromyalgia and MPS, and the trial court entered summary judgment. Id. at 319.

Petitioner appealed, arguing: (1) the evidence is "pure opinion testimony" not subject to Frye; and (2) only the basis for an expert's opinions is subject to Frye, not the opinions and deductions drawn from those principles. Id. The Fifth District rejected these arguments and affirmed. Id. at 329. The district court likewise affirmed the order related to MPS.1 During the pendency of the appeal, the Second District decided Johnson, holding that testimony that trauma from an automobile accident caused fibromyalgia is admissible as " 'pure opinion testimony' based solely on the expert's personal experience and training." 880 So.2d at 723 (quoting U.S. Sugar Corp. v. Henson, 787 So.2d 3, 14 n.10 (Fla. 1st DCA 2000), approved, 823 So.2d 104 (Fla. 2002)). The Fifth District disagreed, concluding that testimony that trauma caused the plaintiff's fibromyalgia requires "an underlying

Page 546

scientific assumption--that trauma can cause fibromyalgia--which is not involved in pure opinion testimony cases," and certified conflict with Johnson. Marsh, 917 So.2d at 327, 329.

II. ANALYSIS

For purposes of our review, the parties do not dispute Marsh's diagnosis of fibromyalgia, or that fibromyalgia is a legitimate condition. Instead, the issue is whether expert testimony causally linking trauma (the car accidents) to the onset of fibromyalgia is subject to the Frye test. Below we first explain why the testimony is not subject to Frye; and then explain that, even if the testimony had to satisfy Frye, it does.

A. Frye Does Not Apply

Many years ago, the United States Court of Appeals for the District of Columbia Circuit established a test for admitting expert testimony that espoused new or novel theories. In Frye, 293 F. at 1013, the court considered the admissibility of expert testimony as to the result of a "systolic blood pressure deception test," an early polygraph. The D.C. Circuit held:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

Id. at 1014.

Many state courts, as well as other federal courts, adopted the Frye test. See, e.g., 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6266 (1997) (recognizing that Frye was the "dominate [sic] standard for decades"); Alice B. Lustre, Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5th 453, § 2 (2001) ("[Frye] was quickly adopted by most states as well as the other federal courts."). We expressly adopted Frye in Bundy v. State, 471 So.2d 9, 18 (Fla. 1985), and Stokes v. State, 548 So.2d 188, 195 (Fla. 1989).

Seventy years after Frye, the United States Supreme Court held that the adoption of the Federal Rules of Evidence superseded the Frye test. See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert adopted a different test for admissibility under which the Frye test--general acceptance in the scientific community--is simply one factor among several. Id. at 594, 113 S.Ct. 2786. Courts and commentators have since debated whether the Daubert standard is more lenient or more strict. See, e.g., Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) ("While Allison argues that the thrust of the Rules and of the Eleventh Circuit has been for liberal admissibility of evidence, she fails to appreciate the tempering qualities of Rules 403, 702 and 703 under Daubert and the fact that this Circuit has been twice overruled on Daubert decisions in precedent setting Supreme Court decisions in [General Electric Co. v.] Joiner[, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)] and Kumho Tire [Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)],

Page 547

both of which imposed stricter admissibility standards than the Eleventh Circuit had deemed appropriate."); Berry v. CSX Transp., Inc., 709 So.2d 552, 570 n.16 (Fla. 1st DCA 1998) ("It is yet a matter of debate whether the Daubert test . . . will be more liberal and allow more expert testimony than the Frye requirement .... "); David E. Bernstein & Jeffrey D. Jackson, The Daubert Trilogy in the States, 44 Jurimetrics J. 351, 352 (2004) ("Courts and commentators disagreed, however, regarding whether this 'revolution' in how judges were to go about deciding whether to admit scientific evidence would lead to more permissive or more restrictive admissibility rulings.") (footnote omitted); Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471, 471, 510 (2005) (questioning whether a state's adoption of Frye or Daubert makes any practical difference, but noting that "commentators have extensively debated which is the stricter standard"). Some commentators have suggested that, in practice, it makes no difference which test is used. See, e.g., Cheng & Yoon, supra, at 510.

Despite the Supreme Court's decision in Daubert, we have since repeatedly reaffirmed our adherence to the Frye standard for admissibility of evidence. See, e.g., Ibar v. State, 938 So.2d 451, 467 (Fla. 2006) ("Florida courts do not follow Daubert, but instead follow the test set out in Frye."), cert. denied, --- U.S. ----, 127 S.Ct. 1326, 167 L.Ed.2d 79 (2007); Brim v. State, 695 So.2d 268, 271-72 (Fla. 1997) ("Despite the federal adoption of a more lenient standard in [Daubert], we have...

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64 practice notes
  • The emerging battlefield: should the use of a nonmonotonic, non-threshold dose-response curve for alleged endocrine-disrupting chemicals survive a Daubert/Frye challenge?
    • United States
    • Defense Counsel Journal Vol. 80 Nbr. 1, January - January 2013
    • 1 Enero 2013
    ...defendants' experts to testify because their clinical observations were supported by specific scientific literature); Marsh v. Valyou, 977 So.2d 543, 550 (Fla. 2007) (admitting expert testimony supported by numerous published articles and studies recognizing an association between trauma an......
  • No ideas but in things: a practitioner's look at demonstrative evidence.
    • United States
    • Florida Bar Journal Vol. 89 Nbr. 10, December 2015
    • 1 Diciembre 2015
    ...the legislature expressed its intent to "prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)." Perez v. Bell S. Telecommunications, Inc., 138 So. 3d 492, 497 (Fla. 3d DCA 2014), rev. den. sub nom. Perez v. Bell S. ......
  • Myofascial Pain and Trigger Points
    • United States
    • ABA Medical-Legal Guides. The Spine for Lawyers Part 2. The Spine
    • 1 Marzo 2013
    ...U.S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 223 917 So. 2d 313, 319 (Fla. Dist. Ct. App. 2005), quashed by 977 So. 2d 543 (Fla. 224 917 So. 2d at 315, 317. 225 Id. at 315, 318. 226 Id. at 319. 227 Id. 228 Id. 229 Id. 230 Id. 231 Id. at 327. 232 977 So. 2d 543. 2......
  • Pain
    • United States
    • ABA Medical-Legal Guides. The Spine for Lawyers Part 1. The Building Blocks of Human Anatomy
    • 1 Marzo 2013
    ...U.S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 190 917 So. 2d 313, 319 (Fla. Dist. Ct. App. 2005), quashed by 977 So. 2d 543 (Fla. 191 917 So. 2d at 315, 317. 192 Id. at 315, 318. 193 Id. at 319. 194 Id. 195 Id. 196 Id. 400 ◆ CHAPTER 6 197 Id. 198 Id. at 327. 199 9......
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42 cases
  • 110 So.3d 66 (Fla.App. 2 Dist. 2013), 2D11-3314, State Farm Mut. Auto. Ins. Co. v. Thorne
    • United States
    • Florida Court of Appeal of Florida (US) Second District
    • 8 Marzo 2013
    ...of the Testimony of Dr. Bain re: Seatbelt and Causation Although this is an evidentiary issue, we review it de novo. Marsh v. Valyou, 977 So.2d 543, 547 (Fla.2007) (" We review Frye issues de novo, with general acceptance considered as of the time of the appeal." (citing Castillo ......
  • Royal Caribbean Cruises, Ltd. v. Spearman, 042821 FLCA3, 3D18-2188
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • 28 Abril 2021
    ...Tire, and to no longer apply the standard in Frye, and to prohibit "pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007)[.]" Ch. 2013-107, Laws of Fla.; see also In re: Amendments to Fla. Evid. Code, 278 So.3d 551, 552-54 (Fla. ......
  • 89 So.3d 937 (Fla.App. 3 Dist. 2012), 3D11-580, Frazier v. Philip Morris USA Inc.
    • United States
    • Florida Court of Appeal of Florida (US) Third District
    • 11 Abril 2012
    ...motion, insofar as it purported to opine on what " would have been apparent to the patient herself." In Marsh v. Valyou, 977 So.2d 543 (Fla.2007), the Supreme Court of Florida addressed the boundaries of expert testimony under the Florida Evidence Code. In the present case, Dr. Sc......
  • 92 So.3d 244 (Fla.App. 1 Dist. 2012), 1D11-2448, R.J. Reynolds Tobacco Co. v. Mack
    • United States
    • Florida Court of Appeal of Florida (US) First District
    • 13 Junio 2012
    ...standard applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques. Marsh v. Valyou, 977 So.2d 543, 547 (Fla.2007). The proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of th......
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11 firm's commentaries
  • Florida Expert Evidence 2.0 - The Frye to Daubert Upgrade
    • United States
    • JD Supra United States
    • 2 Julio 2013
    ...has now followed suit, amending § 90.702 and § 90.704 in an effort to prohibit the usage of pure opinion testimony. See Marsh v. Valyou, 977 So. 2d 543 (Fla. The old Florida evidentiary rule provided that: Testimony by experts. – If scientific, technical, or other specialized knowledge will......
  • Florida Supreme Court Rejects More Rigorous Expert Testimony Standard
    • United States
    • Mondaq United States
    • 6 Marzo 2017
    ...Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997). 6 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). 7 Marsh v. Valyou, 977 So. 2d 543, 547 (Fla. 2008). 8 Id. at 548. 9 Ch. 2013-107, Laws of Fla. ("[B]y amending s. 90.702, Florida Statutes, the Florida Legislature intend......
  • Third District Applies Daubert Retroactively
    • United States
    • JD Supra United States
    • 3 Junio 2014
    ...U.S. 137 (1999). In so doing, the legislature expressed its intent to “prohibit” pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007). The appellate court noted the amendment to the statute was designed to tighten the rules for admissibility of expert testimony i......
  • Florida Adopts Daubert Standard for Expert Testimony
    • United States
    • LexBlog United States
    • 17 Junio 2013
    ...also specifies that Florida courts are no longer to allow the admission of “pure opinion testimony” as was permitted in Marsh v. Valyou, 977 So.2d 543 (2007), under the Frye standard. In Marsh, the Florida Supreme Court held that a causation expert’s proffered expert testimony that trauma c......
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8 books & journal articles
  • The emerging battlefield: should the use of a nonmonotonic, non-threshold dose-response curve for alleged endocrine-disrupting chemicals survive a Daubert/Frye challenge?
    • United States
    • Defense Counsel Journal Vol. 80 Nbr. 1, January - January 2013
    • 1 Enero 2013
    ...defendants' experts to testify because their clinical observations were supported by specific scientific literature); Marsh v. Valyou, 977 So.2d 543, 550 (Fla. 2007) (admitting expert testimony supported by numerous published articles and studies recognizing an association between trauma an......
  • Myofascial Pain and Trigger Points
    • United States
    • ABA Medical-Legal Guides. The Spine for Lawyers Part 2. The Spine
    • 1 Marzo 2013
    ...U.S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 223 917 So. 2d 313, 319 (Fla. Dist. Ct. App. 2005), quashed by 977 So. 2d 543 (Fla. 224 917 So. 2d at 315, 317. 225 Id. at 315, 318. 226 Id. at 319. 227 Id. 228 Id. 229 Id. 230 Id. 231 Id. at 327. 232 977 So. 2d 543. 2......
  • Pain
    • United States
    • ABA Medical-Legal Guides. The Spine for Lawyers Part 1. The Building Blocks of Human Anatomy
    • 1 Marzo 2013
    ...U.S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 190 917 So. 2d 313, 319 (Fla. Dist. Ct. App. 2005), quashed by 977 So. 2d 543 (Fla. 191 917 So. 2d at 315, 317. 192 Id. at 315, 318. 193 Id. at 319. 194 Id. 195 Id. 196 Id. 400 ◆ CHAPTER 6 197 Id. 198 Id. at 327. 199 9......
  • The Daubert Expert Standard: A Primer for Florida Judges and Lawyers.
    • United States
    • Florida Bar Journal Vol. 94 Nbr. 2, March 2020
    • 1 Marzo 2020
    ...(11) ... and Kumho Tire ..." and states "... [we] intend to prohibit ... pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)." (12) In May 2019, any ambiguity as to whether Florida courts apply the Daubert standard or the Frye standard was resolv......
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