                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

WILLIAM BOOKER,                        NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D14-4812

SUMTER COUNTY SHERIFF'S
OFFICE/NORTH AMERICAN
RISK SERVICES,

      Appellees.


_____________________________/

Opinion filed May 29, 2015.

An appeal from an order of the Judge of Compensation Claims.
Ellen H. Lorenzen, Judge.

Date of Accident: May 23, 2013.

Bill McCabe, Longwood, and Tonya A. Oliver, Trinity, for Appellant.

R. Stephen Coonrod of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A.,
Tallahassee, and Tracey J. Hyde of McConnaughhay, Duffy, Coonrod, Pope &
Weaver, P.A., Panama City, for Appellees.



PER CURIAM.

      Appellant, William Booker, seeks reversal of the order denying him workers’

compensation benefits. Finding no error, we affirm the order in its entirety. Four of
the five issues raised by Appellant were challenges to the judge’s evidentiary rulings

grounded in section 90.702, Florida Statutes, establishing what is commonly referred

to as the Daubert test for the admissibility of expert scientific testimony. We write

to address the steps necessary for that analysis.

                                     Background

      In Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 387-88 (Fla. 1st DCA

2014), we addressed the Daubert test and outlined Florida’s adoption of that

standard:

            In 2013, the Florida Legislature modified section 90.702 “to
      adopt the standards for expert testimony in the courts of this state as
      provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
      579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), General Electric Co. v.
      Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and
      Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143
      L.Ed.2d 238 (1999), and to no longer apply the standard in Frye v.
      United States, 293 F. 1013 (D.C.Cir.1923)[.]” See Ch. 13–107, § 1,
      Laws of Fla. (2013) (Preamble to § 90.702). As amended, section
      90.702 now provides:

             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:

             (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.
                                           2
      § 90.702, Fla. Stat. The Legislature’s adoption of the Daubert standard
      reflected its intent to prohibit “pure opinion testimony, as provided in
      Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)[.]” Ch. 13–107, § 1, Laws
      of Fla; see Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 702.3 (2014
      ed.) (“In adopting the amendment to section 90.702, the legislature
      specifically stated its intent that the Daubert standard was applicable to
      all expert testimony, including that in the form of pure opinion.”)
      (footnote omitted).

                               Timeliness of Motion

      When engaging in a Daubert analysis, the judge’s role is that of the evidentiary

“gatekeeper,” that is, the one who determines whether the expert’s testimony meets

the Daubert test. See Daubert, 509 U.S. at 597. See also Kumho Tire, 526 U.S. at

152; Joiner, 522 U.S. at 142. The purpose of the gatekeeping requirement is to

ensure an expert “employs in the court room the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S.

at 152. Federal courts, which have long relied on the Daubert standard, have held

that a trial court has broad discretion in determining how to perform its gatekeeper

function when addressing the admissibility of expert opinion testimony. See Club

Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 780 (11th Cir. 2004). It

follows that a judge’s determination that an objection was not timely raised will be

reviewed for abuse of discretion. Here, Appellant argued that the judge erred in

finding his Daubert objection to the admissibility of the opinion of Appellees’

independent medical examiner untimely.

                                          3
      Even though the Daubert test is new to Florida and few Florida cases have

addressed it, Florida has long had in place a test for determining the admissibility of

expert opinion testimony, and case law addressing the relevant procedural matters

such as the necessity of raising timely objections based on the applicable test are

instructive. In Dirling v. Sarasota County Government, 871 So. 2d 303, 304 (Fla.

1st DCA 2004), this Court was asked to review a judge’s denial of the appellant’s

request for a Frye hearing. In reversing the judge’s denial of the request, the Dirling

court focused on when the appellant became aware that the appellee’s expert’s

opinion was based on specific scientific studies. Id. Because the appellant became

aware of the basis for the opinion only at the final hearing, a Frye motion raised at

that time was timely. Id. at 306.

      Here, Appellant was aware in April 2014, when Dr. Nocero’s report (the IME)

was prepared, that the doctor was relying on various studies in support of his opinion.

This was again made clear to Appellant in early May when Dr. Nocero’s deposition

was taken. Notwithstanding, Appellant first raised his Daubert objection two weeks

before the final hearing and only moved to strike the testimony by motion in limine

filed on September 24, four days before the final hearing. On these facts, the judge

determined that the objection was untimely. Using the Dirling court’s analysis,

Appellant should have raised his challenge when the report was received, or

promptly thereafter, and certainly by the time of the May deposition.

                                          4
      This is in keeping with federal case law addressing similar situations. The

failure to timely raise a Daubert challenge may result in the court refusing to consider

the untimely motion. See Feliciano-Hill v. Principi, 439 F.3d 18, 24 (1st Cir. 2006)

(explaining “[p]arties have an obligation to object to an expert’s testimony in a

timely fashion, so that the expert’s proposed testimony can be evaluated with

care”). See also Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2003)

(explaining that “because Daubert generally contemplates a ‘gatekeeping’ function,

not a ‘gotcha’ junction [sic],” untimely Daubert motions should be considered “only

in rare circumstances”); Club Car, Inc., 362 F.3d at 780 (“A Daubert objection not

raised before trial may be rejected as untimely.”).

                            Facial Sufficiency of Motion

      Once it is determined that the objection was raised in a timely matter, the

gatekeeper must determine whether the objection was sufficient to put opposing

counsel 1 on notice so as to have the opportunity to address any perceived defect in

the expert’s testimony. Depending on the specific basis for the challenge, the

objection should include, for instance, citation to “conflicting medical literature and

expert testimony.”    Tanner v. Westbrook, 174 F.3d 542, 546 (5th Cir. 1999)



1
  The burden of proof to establish the admissibility of the expert’s testimony is on
the proponent of the testimony, and the burden must be established by a
preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10; McCorvey v.
Baxter Healthcare Corp., 298 F. 3d 1253, 1256 (11th Cir. 2002).
                                         5
(superseded in part by rule on other grounds in Mathis v. Exxon Corp., 302 F.3d

448, 459 n.16 (5th Cir. 2002)). Setting forth unsubstantiated facts, suspicions, or

theoretical   questions    regarding    the    expert’s   qualifications    are   not

sufficient. See Rushing v. Kansas City Ry., 185 F.3d 496, 506 (5th Cir. 1999)

(superseded by statute on another ground as noted in Mathis, 302 F.3d at 459 n.16).

Here, the judge below explained, correctly, that the general objection at the start of

Dr. Perloff’s deposition (the judge’s appointed expert) was insufficient, as Daubert

objections must be directed to specific opinion testimony and “state a basis for the

objection beyond just stating she was raising a Daubert objection in order to allow

opposing counsel an opportunity to have the doctor address the perceived defect in

his testimony.”    Nevertheless, the judge went on to consider the merits of

Appellant’s Daubert objections both to Dr. Nocero and Dr. Perloff.

                              Pure Opinion Testimony

      By adopting the Daubert standard, the Florida Legislature, in its codification

of the federal Daubert test, made clear that “pure opinion testimony” was no longer

admissible. “Pure opinion testimony” is testimony based only on the personal

experience and training of the expert. See Marsh, 977 So. 2d at 549. The Third

District Court of Appeal, in Perez v. Bell South Telecommunications, Inc., 138 So.

3d 492 (Fla. 3d DCA 2014), assessed the admissibility of expert testimony under

the Daubert test. In doing so, it reviewed the “pure opinion” testimony exception to

                                          6
the Frye test—the exception specifically rejected by the Legislature in 2013.

The Perez court identified examples of “pure opinion” testimony:

      [T]estimony of a neurologist, based upon clinical experience alone, that
      the failure of physicians to perform a caesarian operation on a mother
      in labor caused brain damage to her child at birth, Gelsthorpe v.
      Weinstein, 897 So. 2d 504, 510 (Fla. 2d DCA 2005); testimony of an
      ophthalmologist, based on experience and training, that the exposure of
      an eye to polychlorinated biphenyles (PCB’s) causes cataracts, Florida
      Power & Light Co. v. Tursi, 729 So. 2d 995, 996–97 (Fla. 4th DCA
      1999); testimony of medical experts of recognized relationship or
      association between trauma and the onset of fibromyalgia, based on
      clinical experience, State Farm Mut. Auto. Ins. Co. v. Johnson, 880
      So.2d 721, 722–23 (Fla. 2d DCA 2004); see generally 24A Fla. Jur.
      Evidence, § 1104.

Id. at 496-97. The common thread running through these examples is that “pure

opinion” testimony is based only on clinical experience and training; in contrast, the

cornerstone of section 90.702 is relevance and reliability based on scientific

knowledge. See Daubert, 509 U.S. at 590 (explaining that “the subject of an expert’s

testimony must be ‘scientific knowledge’”).

      In Giaimo, 154 So. 3d at 387, this Court addressed an appellant’s objection

that a portion of an expert’s opinion testimony was “pure opinion” testimony. When

the expert was asked how he arrived at the questioned opinion, his response was that

“when I was asked and thought about it, that is the answer that I came up with.” Id.

at 388. The Giaimo court concluded that “[t]his testimony provides no insight into

what principles or methods were used to reach his opinion, and Dr. Lee did not

demonstrate that he applied any such principles or methods to the facts of this
                                          7
case.” Id. In contrast, here, the judge found that the opinions were based on more

than the physicians’ clinical experience; specifically, the judge found that both

doctors, in reaching their conclusions, relied on multiple published medical studies

as well as their examinations of Appellant and a review of his medical records.

Because the record supports that finding, the judge did not abuse her discretion 2 in

rejecting any argument that the opinions of Drs. Nocero and Perloff were “pure

opinion” testimony.

                                     Daubert Test

      The Daubert test as codified in section 90.702 requires (1) that the testimony

be based on “sufficient facts or data”; (2) that it be a “product of reliable principles

and methods”; and (3) that the expert “applied the principles and methods reliable

to the facts of the case.” The test for admissibility, given its broad application to all

manner of expert opinion testimony, must be flexible. For assessing the reliability

of the methodology used by the experts, United States v. Hansen, 262 F.3d 1217

(11th Cir. 2001), provides some of the flexible and non-exclusive factors which a

judge may consider:

      1. If it can be tested, has it?
      2. Has it been subjected to peer review and/or publication?
      3. If error rates can be determined, have they?
      4. Are there standards controlling the technique’s operation; if so, have
      they been maintained?

2
 An appellate court will review under an abuse of discretion standard a trial court’s
admission or exclusion of expert testimony. See Kumho Tire, 526 U.S. at 142.
                                        8
      5. Is the methodology generally accepted as reliable within the relevant
      scientific community?

Id. at 1234. A generally recognized exception, grounded in judicial notice, permits

a judge to take judicial notice if the expert testimony has been deemed reliable by

an appellate court. See Hamilton v. Commonwealth, 293 S.W.3d 413, 419 (Ky. Ct.

App. 2009) (“If a party is offering expert testimony in a field of scientific inquiry so

well established that it has been previously deemed reliable by an appellate court,

the trial court may take judicial notice of the evidence. This ‘relieves the proponent

. . . from the obligation to prove . . . that which has been previously accepted as fact

by the . . . appellate court. It shifts to the opponent of the evidence the burden to

prove . . . that such evidence is no longer deemed scientifically reliable. The

proponent may either rest on the judicially noticed fact or introduce extrinsic

evidence as additional support or in rebuttal.’”) (quoting Johnson v. Commonwealth,

12 S.W.3d 258, 262 (Ky. 1999) (emphasis in original)).

      Here, the judge found the experts were well-acquainted with Appellant’s

medical history and current medical condition, they relied on published medical

studies generally accepted within the medical community, and they applied the

results of those studies to the facts of this case in reaching their opinions on

causation.   The judge did not abuse her discretion in admitting the experts’

testimony.

      AFFIRMED.
                                           9
BENTON, CLARK, and MAKAR, JJ., CONCUR.




                              10
