Berry v. CSX Transp., Inc.

• Decision Date: 03 March 1998
• Docket Number: Nos. 95-3131,95-3618,s. 95-3131
• Parties: 23 Fla. L. Weekly D686 Carol BERRY, as personal representative of the Estate of Roy Lee Berry, Jr., deceased, Appellant, v. CSX TRANSPORTATION, INC., Appellee. James CHRISCO, Appellant, v. CSX TRANSPORTATION, INC., Appellee.
• Court: Florida District Court of Appeals

Page 552

709 So.2d 552

23 Fla. L. Weekly D686

Carol BERRY, as personal representative of the Estate of Roy Lee Berry, Jr., deceased, Appellant, v. CSX TRANSPORTATION, INC., Appellee.

James CHRISCO, Appellant, v. CSX TRANSPORTATION, INC., Appellee.

Nos. 95-3131, 95-3618.

District Court of Appeal of Florida,

First District.

March 3, 1998.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami; Korn, Zehmer & Gellatly, P.A., Jacksonville (Berry); Lane & Gossett, P.C., Brunswick, Georgia (Berry); The Beckham Firm, Jacksonville (Chrisco); Gary F. Easom of Easom & Pierce, Jacksonville (Chrisco), for Appellants.

Joseph P. Milton and Eric L. Leach of Milton, Leach & D'Andrea, P.A., Jacksonville; Robert P. Smith and James C. Goodlett of Hopping Green Sams & Smith, Tallahassee, for Appellee.

VAN NORTWICK, Judge.

In these consolidated appeals, James Chrisco and Carol Berry, as personal representatives of the Estate of Roy Lee Berry, Jr., deceased, appeal from a final judgment and a partial final summary judgment, ¹ respectively, which were entered after the trial court excluded the testimony of appellants' expert witnesses. In their actions brought pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. (FELA), appellants allege that appellee, CSX Transportation, Inc., exposed Berry and Chrisco, railroad employees of CSX, to excessive levels of organic solvents causing them to suffer from toxic encephalopathy. ² In both cases, asserting that the expert opinions were not generally accepted in the scientific community and relying upon Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and its Florida progeny, CSX objected to the proposed expert testimony that long-term exposure to excessive levels of organic solvents can and did cause appellants' toxic encephalopathy. The record reflects that appellants' proposed expert testimony was grounded upon numerous peer-reviewed and published epidemiological studies demonstrating an association between exposure to organic solvents and toxic encephalopathy. ³ The trial court nevertheless found that the proposed expert opinions were not based on a "scientific principle or discovery" that has been sufficiently established to have gained general acceptance in the particular field to which it belongs. Accordingly, by separate orders, the trial court disqualified all of the appellants' experts.

This is the first time a Florida appellate court has been asked to decide the issue of what evidence must be Frye tested in the context of toxic tort litigation. We commend the trial court for its thorough and exhaustive review of the proposed expert testimony. We believe, however, that the trial court went beyond addressing the threshold question of admissibility of expert testimony under Frye, which was the issue before it, and in effect engaged in an analysis of the weight to be assigned to the expert testimony or the sufficiency of the evidence. As a result, even though appellants adequately demonstrated the reliability of their experts' proposed testimony, the trial court erroneously ruled that testimony inadmissible. Thus, we reverse the final judgment and partial final judgment

and remand these actions for proceedings consistent with this opinion.

Procedural Background

Roy Lee Berry, Jr., deceased, worked as an electrician for CSX for over 20 years. James Chrisco worked as a machinist for CSX for over 10 years. Their suits alleged exposure to unreasonably hazardous levels of organic solvents in their workplace at CSX. The four organic solvents at issue in this case are trichloroethane (TCA), trichloroethylene (TCE), perchloroethylene (PCE), and mineral spirits. The trial court conducted a lengthy evidentiary hearing in Berry's suit in connection with CSX's motion to disqualify the opinion testimony of Berry's treating physician, Michael Kelly, M.D. In support of Dr. Kelly's proposed testimony, Berry proffered the supporting testimony of several other expert witnesses. CSX also filed a similar motion in the Chrisco suit. Although the trial court entered separate orders disqualifying the expert testimony in each case, the court considered essentially the same evidence in both cases. Thus, for purposes of this appeal, the evidence and cases will be considered together.

The Frye Reliability Standard

The issue of the admissibility of expert testimony is governed by the Florida Evidence Code, section 90.702, Florida Statutes (1995). That section provides:

Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

Like its federal counterpart, Federal Rule of Evidence 702, section 90.702 is "silent as to any requirement that there be general acceptance of a newly developed scientific technique or principle in the particular field in which it belongs." Hawthorne v. State, 470 So.2d 770, 783 (Fla. 1st DCA 1985)(Ervin, J., concurring and dissenting). This "general acceptance" test applied to scientific evidence had been espoused decades earlier in the case of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Frye court succinctly stated the test as follows:

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 particular field in which it belongs.

Id. at 1014.

After the adoption of the Florida Evidence Code, of which section 90.702 is part, disagreement arose among the district courts of appeal as to whether (i) the relevancy test under section 90.702 combined with the so-called balancing test of section 90.403 or (ii) the Frye test was to be applied to determine the admissibility of novel scientific evidence. See Hawthorne, 470 So.2d at 783-787 (Ervin, J., concurring and dissenting; see also Ehrhardt, Florida Evidence, § 702.3 at 526 & 528 n. 18 (1997)). This debate ended when the Florida Supreme Court decided Stokes v. State, 548 So.2d 188 (Fla.1989).

In Stokes, the Florida Supreme Court held that posthypnotic testimony may not be admitted unless it meets the Frye test. Stokes, 548 So.2d at 194-95. "This test requires that the scientific principles undergirding this evidence be found by the trial court to be generally accepted by the relevant members of its particular field." Hadden v. State, 690 So.2d 573, 576 (Fla.1997). In reaching its conclusion in Stokes, the Court explained its rationale for continuing the application of the Frye test:

The underlying theory for this rule [Frye ] is that a courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then Stokes, 548 So.2d at 193-94.

the procedure must be considered less reliable for courtroom use.

Later, in Hadden, the court further amplified the reasons supporting its allegiance to the Frye reliability test:

[W]e firmly hold to the principle that it is the function of the court to not permit cases to be resolved on the basis of evidence for which a predicate of reliability has not been established. Reliability is fundamental to issues involved in the admissibility of evidence. It is this fundamental concept which similarly forms the rules dealing with the admissibility of hearsay evidence.... Novel scientific evidence must also be shown to be reliable on some basis other than simply that it is the opinion of the witness who seeks to offer the opinion.

Hadden, 690 So.2d at 578.

At the same time, a similar debate was ongoing in the federal courts concerning whether Frye or Federal Rule of Evidence 702 should govern the admissibility of scientific evidence. The United States Supreme Court answered this question in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In what has become known as the "scientific validity" test, the Daubert court set forth four non-exclusive factors that courts should consider in determining the admissibility of such evidence: "(1) testability (or falsifiability), (2) error rate, (3) peer review and publication and (4) general acceptance." David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony § 1-3.3 (1997)(herein Modern Scientific Evidence ). ⁴

As might be expected, the Florida Supreme Court was faced with the decision whether to continue following Frye or to adopt Daubert. In Flanagan v. State, 625 So.2d 827 (Fla.1993), the court noted the United States Supreme Court's decision in Daubert, but "reaffirmed the applicability of Frye." Ehrhardt, Florida Evidence § 702.4 (1997 Edition).

Flanagan was followed by the court's decision in Ramirez v. State, 651 So.2d 1164 (Fla.1995), wherein the court emphasized that

the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand ... The general acceptance under the Frye test must be established by a preponderance of the evidence.

Id. at 1168. In Ramirez, the court delineated a four-step process for applying Frye in passing on the admissibility of expert opinion testimony concerning a new or novel scientific principle:

First, the trial judge must determine...