      Third District Court of Appeal
                              State of Florida

                        Opinion filed February 17, 2016.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                               No. 3D15-277
                         Lower Tribunal No. 12-6054
                            ________________


                                Enzo Rojas,
                                   Appellant,

                                       vs.

                          Yagmerys Rodriguez,
                                   Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.

     Nancy Little Hoffman, (Fort Lauderdale), for appellant.

     Michael J. Neimand, for appellee.

Before ROTHENBERG, SALTER and LOGUE, JJ.

     LOGUE, J.
        Plaintiff, Enzo Rojas, seeks review of the trial court’s order granting

defendant Yagmerys Rodriguez’s motion for a new trial. Because the defendant

did not make a timely Daubert1 objection, we reverse.

        The plaintiff was a passenger in an automobile that was struck by the

defendant’s vehicle. The defendant admitted liability and the case was tried on the

issue of whether the plaintiff’s herniated disc was caused by the accident. A

neurosurgeon testified that the herniated disc was consistent with the twisting of

the body that the plaintiff testified occurred when the vehicle spun after the impact.

Defense counsel objected to the neurosurgeon’s testimony on this point on the

basis that “[i]t is outside of the scope of his expertise. He is not an accident

reconstructionist, or a biomechanical expert.” The objection was overruled. After

the plaintiff rested his case, the defense moved “for mistrial based upon [the

neurosurgeon] testifying as an accident reconstructionist expert, or biomechanical

engineer, as he didn’t have any of those qualifications.” The trial court denied the

motion. The defense renewed the motion before the jury returned.

        The jury ultimately awarded the plaintiff $14,620.01 in past medical

expenses, $59,050.00 for future medical expenses, $5,000.00 for past pain and

suffering, and $15,000.00 for future pain and suffering. Following the delivery of

the verdict, the defense once again renewed its motion, but again raised no Daubert


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

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objection. The trial court asked the defense to file a written motion so that the

plaintiff could properly respond. The defendant then filed a “motion for

mistrial/new trial and remittitur,” asserting that the neurosurgeon’s testimony was

outside his area of expertise and trial by ambush, and for the first time, raising

Daubert.

      The trial court held a hearing and granted the motion with a citation to Perez

v. Bell South Telecommunications, Inc., 138 So. 3d 492 (Fla. 3d DCA 2014)

(holding that a physician’s proposed testimony was inadmissible under the Daubert

test). The plaintiff appealed, and with the defendant’s agreement, subsequently

sought and obtained a relinquishment of jurisdiction to allow the trial court to

specify the grounds for its order. The amended order stated, in pertinent part, that

the neurosurgeon’s testimony was “outside his scope of expertise and inadmissible

under Daubert,” that the “[p]laintiff put on no other expert testimony as to

causation,” and “since the only issues in the case were causation and damages, [the

neurosurgeon’s] testimony, which should have been excluded, was clearly central

to the jury’s verdict finding in favor of [p]laintiff.”

      This appeal essentially hinges on whether the defendant’s post-trial Daubert

objection was timely so as to warrant the exclusion of the neurosurgeon’s

testimony. We hold that it was not. Under Florida law, “[e]xclusion of witness

testimony . . . is a drastic remedy that should be invoked only under the most



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compelling circumstances.” Clair v. Perry, 66 So. 3d 1078, 1080 (Fla. 4th DCA

2011) (citation and quotations omitted). Although defendant argued post-trial and

on appeal that the testimony was inadmissible under Daubert, and while the trial

court based its ruling upon this alleged inadmissibility under Daubert, it is

undisputed that the defendant failed to raise a Daubert objection or request a

Daubert hearing prior to the conclusion of trial. This failure is fatal to the

defendant’s case, particularly in light of the fact that the defendant was on notice

that the neurosurgeon would be an expert witness as early as December 11, 2013,

when the plaintiff filed his expert witness list, over ten months before the October

27, 2014 start of trial. Despite this disclosure, the defendant took no steps to

discover the basis of the neurosurgeon’s opinion.

      Moreover, it was incumbent upon the defendant, as the challenging party, to

timely raise a Daubert objection and request a hearing before the trial court. See

Booker v. Sumter Sheriff’s Office/N. Am. Risk Svcs., 166 So. 3d 189, 192-93 (Fla.

4th DCA 2015). Given the trial court’s role as “gatekeeper” in the Daubert context,

it stands to reason that such an objection must be timely raised to allow the trial

court to properly perform its role:

      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. 2001)


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      (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.”).

Id. at 193.

      Here, there was no timely Daubert objection, nor is there any indication that

exceptional circumstances existed to merit consideration of the defendant’s

untimely objection. As such, the trial court erred in granting the defendant’s

motion. Accordingly, we reverse the order on appeal and remand so that the trial

court may reinstitute the jury’s verdict. Because the defendant failed to make a

timely Daubert objection, we do not reach the issue of whether the neurosurgeon’s

testimony would have been admissible under Daubert.

      Reversed and remanded with instructions.




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