          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED

RANDY LANE RHOADES, III,

              Petitioner,

 v.                                                     Case No. 5D16-4285

LILMISSETTE RODRIGUEZ,

              Respondent.

________________________________/

Opinion filed March 17, 2017

Petition for Certiorari Review of Order
from the Circuit Court for Brevard County,
John M. Harris, Judge.

Dale T. Gobel, of Gobel Flakes, LLC,
Orlando, for Petitioner.

Jeffrey M. Byrd, P.A., of Jeffrey M. Byrd,
P.A., Orlando, for Respondent.

LAMBERT, J.

       Randy Rhoades petitions for a writ of certiorari, requesting that this court quash

the trial court’s order that limits the trial testimony of one of his expert witnesses, Dr.

Steven Rundell, a biomechanical engineer. We deny the petition.

       This case arises from a motor vehicle accident.           Respondent, Lilmissette

Rodriguez, sued Rhoades, alleging that Rhoades negligently operated his vehicle,

resulting in a rear-end accident that proximately caused Rodriguez to suffer injury and

damages. Rhoades listed Dr. Rundell as an expert witness, anticipating that Dr. Rundell
would provide opinion testimony as to: (1) the accelerations and forces that are applied

to the human body as a result of this collision, (2) the effects of such force on the human

body, (3) the likelihood of damage to human bone and tissue by the application of such

forces, and (4) a comparison of the forces caused by the instant motor vehicle collision

with those forces that are experienced by individuals in other common daily events.

Rodriguez filed a Daubert1 motion, seeking to limit Dr. Rundell from providing this

testimony and to further preclude him from providing opinion testimony as to whether she

sustained any injury that was causally related to the accident. Following a hearing at

which Dr. Rundell testified, the trial court entered the challenged order, permitting Dr.

Rundell to testify as to the forces generated by the collision of the vehicles but precluding

him from testifying as to the effect of such forces as applied to the human body, the

likelihood of any damage to tissue and bone resulting from such forces, a comparison of

the forces caused by the collision with those forces associated with other common daily

events, and whether Rodriguez was injured as a result of the accident.

       Rhoades argues that as a result of Florida’s adoption of the Daubert2 standards as

to the admissibility of scientific evidence, Florida’s trial courts have now been provided



       1   Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

       2Effective July 1, 2013, the Florida Legislature amended section 90.702, Florida
Statutes, replacing the previously adopted “general acceptance test” for admitting expert
opinion evidence described in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), with
the standards set forth in Daubert for the admissibility of scientific evidence. Section
90.702 provides that:

                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 or otherwise, if:

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with a “broader ability to strike an expert witness,” thus necessitating a “modification in

the ability for certiorari review” and the implementation of “a new appellate standard for

evaluating the propriety of the trial courts’ [pretrial orders]” that strike expert witnesses or

limit their testimony. Rhoades contends that due to what he sees as an increase by the

trial courts, post-Daubert, to strike expert witnesses prior to trial, this court should recede

from our nearly unanimous en banc decision in Bill Kasper Construction Co. v. Morrison,

93 So. 3d 1061, 1062 (Fla. 5th DCA 2012), where we held that certiorari review of a trial

court’s pretrial order striking a defendant’s expert witnesses was unwarranted due to the

availability of postjudgment appellate relief. Rhoades disagrees, arguing that immediate

interlocutory review of such pretrial orders is now necessary “as the only way to ensure

the legal correctness of the trial court’s rulings and to assure faith in the fairness of our

legal system.”

       “To be entitled to certiorari review, [Rhoades] must demonstrate that the [trial

court’s] order constitutes a departure from the essential requirements of law and results




              (1) The testimony is based upon sufficient facts or data;

              (2) The testimony is the product of reliable principles and
              methods; and

              (3) The witness has applied the principles and methods
              reliably to the facts of the case.

§ 90.702, Fla. Stat. (2016).

       The Frye test applied to expert testimony based upon new or novel scientific
evidence. “Under Frye, in order to introduce expert testimony deduced from a scientific
principle or discovery, the principle or discovery ‘must be sufficiently established to have
gained general acceptance in the particular field in which it belongs.’” Flanagan v. State,
625 So. 2d 827, 828 (Fla. 1993) (quoting Frye, 293 F. at 1014).


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in material injury for the remainder of the case that cannot be corrected on appeal.” See

Paton v. GEICO Gen. Ins. Co., 190 So. 3d 1047, 1052 (Fla. 2016) (citing Bd. of Trs. of

the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454 (Fla.

2012)). “Simple disagreement with the decision of the trial court is an insufficient basis

for certiorari jurisdiction.” Id. (citing Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla.

2000)). Furthermore, the alleged gravity of the trial court’s error does not justify the

relaxation of the irreparable harm prerequisite to certiorari relief. Bill Kasper, 93 So. 3d

at 1063 (Torpy, J., concurring) (citing Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla.

1998)).

       We decline Rhoades’s invitation to recede from Bill Kasper. Moreover, subsequent

to Rhoades filing his petition, the Florida Supreme Court has declined to adopt the

“Daubert amendment” to section 90.702, to the extent that it is procedural, due to

constitutional concerns that the court determined must be addressed in the context of a

proper case or controversy (as opposed to a “rules case”). See In re: Amendments to the

Fla. Evidence Code, 42 Fla. L. Weekly S179 (Fla. Feb. 16, 2017). As the supreme court’s

opinion could very well result in the trial court reconsidering or vacating the instant

interlocutory order prior to trial, the issues we are being asked to consider may become

moot. See Bill Kasper, 93 So. 2d at 1065 (Torpy J., concurring) (noting the possibility of

a change in the trial court’s ruling rendering moot the issues before the appellate court as

an additional factor in denying certiorari review).

       PETITION for WRIT OF CERTIORARI DENIED.

PALMER and EDWARDS JJ., concur.




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