David v. National Railroad Passenger Corp., 00-815

• Decision Date: 17 August 2001
• Docket Number: 00-815,2
• Parties: GEORGE F. DAVID, APPELLANT, v. NATIONAL RAILROAD PASSENGER CORPORATION, APPELLEE. CaseIN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
• Court: Florida District Court of Appeals

GEORGE F. DAVID, APPELLANT v NATIONAL RAILROAD PASSENGER CORPORATION, APPELLEE

Case No. 2D00-815

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

August 17, 2001

Appeal from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge.

Gary F. Easom of Easom & Pierce, 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. Mo. Pac. R.R. Co., 352 U.S. 500 (1957). We reverse.

David initially identified three experts: Dr. Robert Andres, an ergonomist; Dr. William Greenberg, 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. Merrill Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). ¹ After David moved for rehearing, 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") (explaining that "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 non-jury hearing."); but see U.S. Sugar Corp. v. Henson, 26 Fla. L. Weekly D1062 (Fla. 1st DCA Apr. 20, 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 that 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 principle 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, non-legal matters in order to determine the scientific acceptability of DNA principles. As such, the record in Brim II was inadequate for the court to determine the Frye issue, and we remanded for an additional evidentiary hearing.

As in Brim II, our record in this case is woefully inadequate. We too have reviewed cases from Florida and other jurisdictions and have found numerous examples in which experts have been permitted to testify that repetitive hand motion can lead to carpal tunnel syndrome. ³ Yet our record contains only a few articles, appended to a motion, that indicate this is a generally accepted scientific theory, and only citations to articles that dispute the theory. It appears that the evidence before the circuit court simply was insufficient to permit a reasoned assessment of whether the relevant scientific community generally accepts the theory that repetitive motion causes carpal tunnel syndrome. The record is certainly inadequate to permit our review of the orders. Therefore, we reverse the orders striking the experts and the resultant summary judgment entered in the railroad's favor and remand to the circuit court with directions to conduct an evidentiary Frye hearing on the scientific issue.

Because our record indicates there is some debate in the scientific community about whether repetitive motion can cause carpal tunnel syndrome, we point out that the circuit court's role is to determine whether the "basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." Brim I, 695 So. 2d at 272. However, as the Brim I court went on to observe, this test does not require unanimity in the scientific community.

It is clear that scientific unanimity is not a precondition to a finding of general acceptance in the scientific community. People v. Dalcollo, 282 Ill. App. 3d 944, 218 Ill. Dec. 435, 445, 669 N.E.2d 378, 387 (1996). Instead, general acceptance in the scientific community can be established "if use of the technique is supported by a clear majority of the members of that community." People v. Guerra, 37 Cal. 3d 385, 208 Cal. Rptr. 162, 183, 690 P.2d 635, 656 (1984). "Of course, the trial courts, in determining the general acceptance issue, must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique. Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value . . . ." People v. Leahy, 8 Cal. 4th 587, 34 Cal. Rptr. 2d 663, 678, 882 P.2d 321, 336-37 (1994). Therefore, while a "nose count" is not alone sufficient to establish general acceptance in the scientific community, such acceptance likewise need not be predicated upon a unanimous view. Id.

At this point we also need to address the circuit court's implication that two of David's medical experts did not have sufficient information on which to base their opinions. Baker, an orthopedic surgeon, performed endoscopic surgery on David's carpal tunnels. Baker took a history from David, performed a physical examination, and reviewed medical records from two doctors, including nerve conduction tests that are used to diagnose carpal tunnel syndrome. He...