David v. National Railroad Passenger Corp., No. 2D00-815.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: NORTHCUTT.
• Citation: 801 So.2d 223
• Decision Date: 07 December 2001
• Docket Number: No. 2D00-815.
• Parties: George F. DAVID, Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Appellee.

801 So.2d 223

George F. DAVID, Appellant,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Appellee

No. 2D00-815.

District Court of Appeal of Florida, Second District.

December 7, 2001.

801 So.2d 224

Gary F. Easom of Easom & Peirce, Jacksonville, and Joel D. Eaton, of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Appellant

Daniel J. Fleming and Jose A Gutierrez of Melkus & Fleming, Tampa, for Appellee.

NORTHCUTT, Judge.

George David sued his employer, National Railroad Passenger Corporation, under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. (FELA). David claimed that his work at the railroad exposed him to excessive repetitive trauma to his upper extremities and that he developed carpal tunnel syndrome and other maladies as a result. During the course of discovery, he identified four expert witnesses who would connect his injuries to his job. On the railroad's motions, the circuit court struck all David's experts. It then granted summary judgment in favor of the railroad because David could not prove causation, a necessary element of a FELA cause of action. See Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). We reverse.

David initially identified three experts: Dr. Robert Andres, an ergonomist; Dr. William Greenburg, a neurologist; and Dr. John Baker, an orthopedic surgeon. The court struck them because it found there was a lack of general acceptance in the scientific community for their opinions that repetitive trauma from occupational hand use can cause carpal tunnel syndrome, citing Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).¹ After David moved for rehearing,

801 So.2d 225

the court entered a second order striking the witnesses. Some language in that order might imply the court believed Greenberg's and Baker's opinions were based on insufficient information, but this belief seems inextricably intertwined with the court's rejection of the underlying scientific theory.² David subsequently identified a fourth causation expert, Dr. Jacob Green. The railroad moved in limine to exclude his testimony and again the circuit court granted the motion, finding that Green's opinion was "based on ... junk science."

When determining whether to admit expert testimony about a new scientific theory, courts in Florida employ a four step process. Once a court discerns that expert testimony would assist the jury, a point not contested in this appeal, it must then conduct a Frye hearing to "decide whether the expert's testimony is based on a scientific principle or discovery that is `sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) (quoting Frye). In order to make this determination, the court should generally conduct an evidentiary hearing. As the Ramirez court noted, "a hearing on the admissibility of novel scientific evidence is an adversarial proceeding in which conflicting evidence is presented to the trial judge as the trier of fact." Id. at 1168; see also Brim v. State, 779 So.2d 427, 434 (Fla. 2d DCA 2000) ("Brim II") ("[A] trial judge involved in a Frye hearing must listen to the scientific evidence and resolve any disputed question of fact using the same method employed in any other nonjury hearing."); but see United States Sugar Corp. v. Henson, 787 So.2d 3 (Fla. 1st DCA 2001) (remarking that Ramirez does not mandate an evidentiary hearing on Frye issues).

In this case, the circuit court did not conduct an evidentiary hearing on the disputed scientific issues, an omission which has a direct bearing on our review of the matter. District courts review a circuit court's order on Frye issues de novo. Brim v. State, 695 So.2d 268 (Fla. 1997) ("Brim I"). To conduct such a de novo review, we must examine "expert testimony, scientific and legal writings, and judicial opinions" to determine whether the scientific principles at issue are generally accepted in the relevant scientific community. Hadden v. State, 690 So.2d 573, 578 (Fla.1997); Brim II, 779 So.2d at 428.

In Brim II, this court reviewed numerous judicial opinions in which DNA evidence, the scientific principal at issue in that case, was routinely admitted in trial courts in many states. But the Brim II court noted its extreme difficulty with the process of reviewing scientific literature on the subject. Id. at 429. The parties in that case had not included any literature in the record and had not supplemented the record with any recent writings on the subject of DNA evidence. Cf. Kaelbel Wholesale, Inc. v. Soderstrom, 785 So.2d 539, 548 n. 3 (Fla. 4th DCA 2001) (noting it was extremely helpful to the court's review that the relevant scientific publications were filed in the circuit court record). The Brim II court concluded it would be improper to undertake an examination of extra-record, nonlegal matters in order to determine the scientific acceptability of DNA principles. As such, the record in

801 So.2d 226

Brim II was inadequate for the court to determine the Frye...