          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             JABARI KEMP,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D15-3472

                           [December 13, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
502013CF006185A.

  Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   A tragic accident resulted in the death of five people, and the
defendant’s conviction on five counts of vehicular manslaughter. He
appeals his conviction and sentence. He argues the trial court erred in
admitting the testimony of an accident re-constructionist, and he was
procedurally prejudiced by the late disclosure of an expert opinion. We
disagree and affirm.

    On the evening of the accident, the defendant was driving a Mercedes
coupe northbound on I-95. He exited at Blue Heron Boulevard. According
to the lead accident investigator, the curvature of that exit “would require
a person to make their vehicle maneuver in such a way to make that
curve.”

    The defendant’s car ran the red light at the end of the exit ramp,
continued straight into the perpendicular lanes of traffic, and crashed into
the side of a Lexus sedan that was proceeding eastbound with the green
light. The State presented expert testimony that the defendant’s car was
travelling at 128.7 mph at the time of impact. Both cars went across the
median and came to rest beyond the westbound lanes of traffic.

   The five young people in the Lexus died as a result of the accident.
When paramedics arrived, the defendant was awake but “mostly in and
out of consciousness.” The defendant had to be extricated from his car.

   A key factual dispute was whether the defendant lost consciousness
before the crash. His defense was that he blacked out and did not have
control of the car at the time of the collision. He testified that he felt “very
faint” about “a second or two” into the Blue Heron exit. He explained that
he had never fainted before and did not know he was going to pass out.
He recalled driving 65 to 70 mph before he lost consciousness. The next
thing he remembered was waking up in the hospital.

    Defense counsel argued that the defendant’s height and manner of
sitting in his car meant that his “foot likely depressed on that pedal” after
the defendant passed out, which would explain how the vehicle could have
reached 128 mph. The defendant testified that he was five foot and eleven
inches tall. His Mercedes sports car sat “kind of low,” and the gas pedal
was “very responsive.”

    A passenger in a car that passed the Lexus, described the defendant’s
car exiting the ramp: “It was a flying like it was – it was like somebody
was unconscious in the car just going, [vroom]. It was – I thought it was
flying because it wasn’t turning, it was just going straight. It was just, like
– like a plane diving.” According to this witness, the defendant’s car did
not attempt to brake.

   A police officer at an unrelated traffic stop about 400 feet away from
the accident “heard the sound of tires screeching on a highway effectively
applying brakes and then . . . heard a large pop or a bang which was
indicative of a collision having occurred.” But, the officer did not see the
accident, and did not know which car made the screeching sound.

   Corporal Johnson was the lead investigator. He testified that he did
not see any roadway tire marks indicating the defendant was braking
immediately before the crash. He was assisted by Corporal Dooley, who
performed the speed calculations.

   Both issues on appeal arise from Corporal Dooley’s testimony. Over
the defense Daubert 1 objection and another objection to a State discovery

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

                                          2
violation, the trial court admitted Dooley’s opinion that the damage to the
Lexus indicated the defendant was braking his vehicle as the collision
occurred.

   Specifically, Dooley testified that the crush damage to the Lexus went
downward in “an arc-type fashion,” which indicated the front end of the
defendant’s car was dipping as it collided with the Lexus. If a car is
dipping, Dooley explained, this indicates “that there is some type of
braking or driver input.”

   Dooley stated that if the defendant’s vehicle had not been dipping, there
would be “more of a flatter type crush pattern.” Dooley claimed that the
damage to the Lexus started at the normal height one would expect, but
arcs downward. According to Dooley, it was the arc of the damage to the
Lexus—not its height from the ground—that was indicative of dipping.

   The jury found the defendant guilty as charged on all five counts. The
court granted a downward departure and sentenced the defendant to five
consecutive terms of six years in prison, for a total of 30 years. From his
conviction and sentence, the defendant now appeals.

    The defendant first argues the trial court erred by admitting Dooley’s
braking opinion, because it did not meet the requirements of section
90.702, Florida Statutes (2015), and Daubert. 2 Because the parties relied
on Daubert at trial and because neither party challenged the validity or
constitutionality of the Daubert Amendment, we apply Daubert to this
appeal. See Clare v. Lynch, 220 So. 3d 1258, 1261–62 (Fla. 2d DCA 2017)
(applying a statutory amendment governing expert witness qualifications
in medical malpractice cases, despite the Florida Supreme Court’s refusal
to adopt the amendment “to the extent it is procedural,” where the relevant
party did not raise the constitutionality of the statute).

  We review a trial court’s ruling on the admissibility of expert testimony
under section 90.702 for an abuse of discretion. Booker v. Sumter Cnty.
Sheriff’s Office/N. Am. Risk Servs., 166 So. 3d 189, 194 n.2 (Fla. 1st DCA
2015).

2 During this appeal, the Supreme Court of Florida declined to adopt the
legislature’s “Daubert Amendment” to the Florida Evidence Code to the extent
that it is procedural. In re Amendments to Fla. Evidence Code, 210 So. 3d 1231,
1239 (Fla. 2017). The court did not address the constitutionality of the Daubert
Amendment, stating that the constitutional concerns raised “must be left for a
proper case or controversy.” Id. at 1239.


                                       3
    Daubert assigned the trial judge as gatekeeper to “ensure that any and
all scientific testimony or evidence admitted is not only relevant, but
reliable.” 509 U.S. at 589. That obligation applies not only to “scientific”
testimony, but “to all expert testimony.” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147 (1999).

   The Court articulated factors bearing on the reliability inquiry:

   (1) whether the theory can be or has been tested;

   (2) whether the theory or technique has been subjected to peer review
       and publication;

   (3) the known or potential rate of error of a particular scientific
       technique, as well as the existence of standards controlling the
       technique’s operation; and

   (4) general acceptance in the scientific community.

Daubert, 509 U.S. at 593–94. The Court advised however that the “test of
reliability is flexible, and Daubert’s list of specific factors neither
necessarily nor exclusively applies to all experts or in every case.” Kumho
Tire, 526 U.S. at 141 (internal quotation marks omitted).

  Section 90.702, Florida Statutes, provides that expert testimony is
admissible 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.

   The Court has explained:

      Experts of all kinds tie observations to conclusions through
      the use of what Judge Learned Hand called “general truths
      derived from . . . specialized experience.” And whether the
      specific expert testimony focuses upon specialized
      observations, the specialized translation of those observations
      into theory, a specialized theory itself, or the application of

                                     4
      such a theory in a particular case, the expert’s testimony often
      will rest “upon an experience confessedly foreign in kind to
      the jury’s own.” The trial judge’s effort to assure that the
      specialized testimony is reliable and relevant can help the jury
      evaluate that foreign experience, whether the testimony
      reflects scientific, technical, or other specialized knowledge.

Kumho Tire, 526 U.S. at 148-49 (citations omitted).

   Here, there can be no doubt that Corporal Dooley was an expert in
accident reconstruction. He testified that he had been employed with the
Florida Highway Patrol for thirteen years, and had been a homicide
investigator for more than five years. His training was extensive. He
testified about his training as follows:

      It’s very extensive, first and foremost you start off with the
      basic homicide investigations which kind of gets you into
      mathematical formulas and dynamics of how crashes happen
      and basically overall scene work and then you go into more
      advanced schools like advanced traffic homicide and
      reconstruction -- where that gets more into nuts and bolts of
      how to properly reconstruct a crash and then you get into
      more specific -- more advanced dealing with specific items like
      motorcycles, pedestrians, trains, commercial motor vehicles.

      There is just a lot of stuff that as you progress it gets more
      and more specific. In total it’s probably been -- if you would
      add it all up together probably in excess of 800 plus hours in
      the class room and actually out in the field doing this training
      prior to even investigating things.

   He had been the primary investigator in more than sixty-five accidents
and assisted in over two hundred. His role was to assist in “mapping the
scene using [photogrammetry].” He was there to make an independent
determination of how the crash occurred.        From his observations,
photographs, and measurements, he was able to construct a three
dimensional model of the accident scene. He was also able to create a
crash zone using specific software.

   Corporal Dooley conducted a post-crash inspection of the vehicles. He
inspected the car for “crush damage,” mechanical defects, tire
malfunction, and damage profiles, anything that happened as a result of
the crash. He explained the damage profile as providing information on
the angle of approach, how far the crush went into the vehicle, and the

                                     5
angle of departure. The damage profile also provides information on
whether braking occurred. He explained:

      When you have two cars that are relatively similar in height .
      . . , as somebody is approaching a car . . . they are not paying
      attention or whatever it is, and at the last second they brake
      right before impact. And the front end will dip and it will go
      down and it will smack the rear of the car or whatever the case
      is. Normally, that’s from you’re traveling at a speed and as
      you hit the brakes, center mass, the momentum is going
      forward so it’s going to push that momentum forward causing
      the front end to dip. I’m sure we have all done it, whether you
      accelerate and the front end goes up, or you hit the brakes
      and the front end goes down, but that’s what we are looking
      for is how up the damage profile is.

      ....

      What we have here is, up to here this is the right rear
      passenger door of the Lexus. And as you can see here, it’s
      kind of bowed out a little bit, and then when you look further
      down you notice how it appears to get deeper and deeper and
      deeper. When you get down to the bottom of it that’s the frame
      right there, okay? So when you look at this damage profile
      this to me is obviously a significant impact. But when you
      have all of this up here, which is kind of in line with whatever
      the car may or should have been, and then as you start
      looking down, down, down, it starts to get deeper and deeper
      and deeper as you get down to the --

   At this point, the defense objected, and the court permitted voir dire
before Corporal Dooley rendered his opinion. The voir dire was extensive
with the judge asking questions to ensure his role as gatekeeper.

      [CORPORAL DOOLEY]:             Well, when you have such a
      tremendous speed going down and so much energy and
      momentum, the car is -- if it’s not dipping, or going up, or
      accelerating, it’s going straightforward. Whatever it’s going to
      hit and when it hits you would have the crushing factor. It
      would be more upright but, again, like I said, when I see this
      based on everything I’ve seen in the past, all my training and
      experience, it shows me that the car hits and goes down, is
      what it tells me. That’s all I can testify to. That’s what it tells
      me is that it hits but it’s going down.

                                      6
THE COURT: And that is consistent within a reasonable
degree of scientific certainty with braking of the Mercedes?

[CORPORAL DOOLEY]: I can’t tell you about the scientific --
or anything about the braking of the Mercedes. What I can
tell you is the overall dynamics of a car to require to have
shocks and struts and all these things and if you are
accelerating, the front will go up. If you are decelerating it
goes down -- that’s all I can -- I’m just telling you what it
means to me.

THE COURT: Is it consistent with braking?

[CORPORAL DOOLEY]: Yes.

THE COURT: Is it consistent with any other scenario other
than braking?

[CORPORAL DOOLEY]:          I, personally, cannot think of
anything that it would be consistent with --

THE COURT: Okay.

[PROSECUTOR]: If I could ask him one additional question. .
. . When the Judge asked you if it’s within a degree of scientific
certainty, when we talk about science what you are discussing
deals with a car going downward, deals with the laws of
physics and momentum, correct?

[CORPORAL DOOLEY]: Yes, ma’am.

[PROSECUTOR]: Okay. And that would be science?

[CORPORAL DOOLEY]: Yes, ma’am.

....

[DEFENSE COUNSEL]: Are there any studies on this dipping
effect, the curling downward?

[CORPORAL DOOLEY]: I’m sure that there are but I can’t
quote anything specific.


                                7
[DEFENSE COUNSEL]: None that you have read?

[CORPORAL DOOLEY]: Yes, we’ve actually -- when we go out
and we do a lot of these more specific schools, like I testified
to earlier . . . that I’ve attended, we go out and we will crash
vehicles, we will throw motorcycles off the back of trucks and
watch them spin, but to classify like as actually studying I
personally cannot recall anything specific dealing with it.
Other than talking about momentum in general when weights
are transferred from the center mass forward because that’s
where the momentum was going. And as they apply the
brakes, the momentum shifts forward, and as you accelerate,
the momentum shifts backwards, talking about dynamics of
how cars work. But as far as quoting an actual case study or
a doctor or scientist or whomever may have been out there
looking at it, I can’t tell you.

[DEFENSE COUNSEL]: Okay. And that would have nothing
to do with the fact that the Lexus was a heavier vehicle at the
time?

[CORPORAL DOOLEY]: Heavier vehicle and damage profile, I
can’t see any type of issue with that but it just appears like I
said this, I’m just testifying as to what this looks like to me --

[DEFENSE COUNSEL]: Okay. Thank you.

....

THE COURT: Corporal, is this -- is this type of downward arc
in damage something that is taught at you know accident
reconstruction classes that you have done?

[CORPORAL DOOLEY]: There are examples that are given.
Unfortunately, you can’t cover every single type of scenario
that a crash will happen in, but no there are examples given
and again explain to you how when a vehicles weight shifts
and different things like that and we learn about speed
calculations if a car swerved to avoid and all of the load goes
to one side, and it will leave a tiny thin mark. We learn about
weight transfer and momentum transfer, and then we go into
when vehicles collide with others and how they transfer their
momentum or kinetic energy to the other vehicle. But we do
learn about these things, but I can’t quote you anything

                                8
   specific off the top of my head as to a case study or somebody
   who is in the know, specifically.

   ....

   THE COURT: All right. The Court will admit this opinion. I’m
   admitting this opinion as a gatekeeper. I have through
   counsel’s questions and the Court’s questions undertaken an
   -- you know, an examination of Corporal Dooley, as to
   reliability of this type of evidence.

   I do find that it is quote/unquote not junk science, that, in
   fact, it is taught. It is part and parcel of the training with
   respect to accident reconstruction. That this -- a witness has
   -- certainly has the training and hours of experience to opine
   as to accident reconstruction. He specifically discussed the
   evidence that he has seen on the damage to the Lexus that
   corresponds to an opinion that -- of a dipping damage, which
   is consistent within his opinion of a car braking.

   I’m going to allow the opinion to come in, subject, of course,
   to the weight of this opinion as being borne out by [defense
   counsel’s] cross-examination, but I do find that this opinion
   is sufficiently reliable. Daubert, don’t forget, is a rule of
   admissibility as opposed to inadmiss[i]bility. And I do find
   that it’s not a pure opinion of the corporal but it’s instead
   based on training, experience, he’s got the expertise. And I do
   find as a gatekeeper that it is sufficiently reliable and
   sufficiently factually based to allow this opinion into the -- into
   evidence in this trial.

   I may have some more with respect to a ruling on this but at
   this juncture I am going to allow the opinion subject to the
   weight to be attached to it by a cross-examiner.

The court then explained to the jury:

   [Defense counsel’s] objection to the opinion as to whether the
   Mercedes was braking or not, their objection to that is
   overruled. Of course, you decide what weight you wish to give
   to anyone’s opinion, you can accept it or reject it, or accept
   part of it that’s totally up to you -- I’m going to turn back now
   to the assistant State attorney to continue her direct
   examination.

                                   9
   Corporal Dooley then testified that the photographs showed that the
front end of the defendant’s vehicle was dipping as the cars collided. That
indicated to him that “there [was] some type of braking or driver input.”
Without some type of braking,

      you would have more of a flatter type crush pattern . . . that
      curvature to that crush damage that’s what it tells me is that
      the car -- the front of the car that’s doing the hitting is coming
      in and as it’s hitting the front end is dipping and going down.

      ....

      Transfer momentum transferring to the front of the car
      putting the load on the front.

    As the Court declared in Daubert, the trial judge is assigned “the task
of ensuring that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand. Pertinent evidence based on
scientifically valid principles will satisfy those demands.” 509 U.S. at 597.
Here, the trial court did just that. We affirm.

CIKLIN, J., concurs.
TAYLOR, J., dissents with opinion.

TAYLOR, J., dissenting.

   I respectfully dissent. Corporal Dooley’s braking opinion was not
shown to be based upon sufficient facts or data, nor was it shown to be
the product of reliable principles and methodology. His testimony
amounted to little more than a subjective and unverifiable opinion and
represents precisely the sort of junk science that should never be
countenanced in a court of law. Accordingly, I would hold that the trial
court abused its discretion in admitting unreliable expert witness
testimony that did not meet the requirements of Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). The majority opinion emphasizes
Corporal Dooley’s experience and quotes long portions of his testimony,
but fails to undertake any analysis of how the braking opinion relates to
the Daubert factors.

    One of the key factual disputes at trial was whether appellant had lost
consciousness shortly before the crash. The state was required to prove
at trial that appellant operated his motor vehicle “in a reckless manner
likely to cause the death of, or great bodily harm to, another,” which is a

                                     10
required element of vehicular homicide. 3 However, evidence that a
defendant merely lost control of a vehicle is insufficient, without more, to
prove reckless driving. Smith v. State, 218 So. 3d 996, 998 (Fla. 2d DCA
2017).

   In this case, the state offered Dooley’s braking opinion to establish that
appellant was in control of the vehicle at the time of the accident. Because
this case was tried under the Daubert standard, 4 the trial court had a
gatekeeping function to ensure that Dooley’s testimony was reliable.
However, in admitting Dooley’s braking opinion, the trial court essentially
deferred to Dooley’s expertise and took Dooley’s word for it, without any
meaningful consideration of the Daubert factors. Therefore, as I explain
below, the trial court did not adequately fulfill its gatekeeping function in
this case.

   In Florida, since 2013, we have applied the standards for expert
testimony in our courts as provided in Daubert. See Crane Co. v. DeLisle,
206 So. 3d 94, 101 (Fla. 4th DCA 2016), rev. granted, No. SC16–2182 (Fla.
July 11, 2017). Section 90.702 codifies the standard as follows:

      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:

3 Vehicular homicide is defined as “the killing of a human being . . . caused by
the operation of a motor vehicle by another in a reckless manner likely to cause
the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2012).
Vehicular homicide therefore requires proof of reckless driving—that is, driving
with a “willful or wanton disregard for the safety of persons or property.”
Santisteban v. State, 72 So. 3d 187, 195 (Fla. 4th DCA 2011) (citations and
internal quotation marks omitted). “Willful” means “intentional, knowing, and
purposeful,” and “wanton” means with a “conscious and intentional indifference
to consequences and with knowledge that damage is likely to be done to persons
or property.” Lewek v. State, 702 So. 2d 527, 530–31 (Fla. 4th DCA 1997)
(citations and internal quotation marks omitted). “In determining whether a
defendant was driving recklessly, the essential inquiry is whether the defendant
knowingly drove the vehicle in such a manner and under such conditions as was
likely to cause death or great bodily harm.” Santisteban, 72 So. 3d at 195
(emphasis added).

4 The parties relied upon the Daubert standard at trial and neither party
presented any argument below challenging the validity of the legislature’s 2013
Daubert Amendment.

                                      11
      (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. (2014).

    Under Daubert, a trial judge has a gatekeeping role to “ensure that any
and all scientific testimony or evidence admitted is not only relevant, but
reliable.” 509 U.S. at 589. The trial judge is charged “with this
gatekeeping function ‘to ensure that speculative, unreliable expert
testimony does not reach the jury’ under the mantle of reliability that
accompanies the appellation ‘expert testimony.’” Crane, 206 So. 3d at 101
(quoting Hughes v. Kia Motors Corp., 766 F.3d 1317, 1328–29 (11th Cir.
2014)).

   A trial judge must make “a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be applied to
the facts in issue.” Daubert, 509 U.S. at 592–93. This basic gatekeeping
obligation applies not only to scientific testimony, but “to all expert
testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

    The Supreme Court in Daubert outlined a list of factors that bear on
the reliability inquiry: (1) whether the theory can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error of a particular scientific
technique, as well as the existence of standards controlling the technique’s
operation; and (4) general acceptance in the scientific community. 509
U.S. at 593–94. The Daubert “test of reliability is flexible, and Daubert’s
list of specific factors neither necessarily nor exclusively applies to all
experts or in every case.” Kumho Tire, 526 U.S. at 141 (internal quotation
marks omitted).

   “[T]he test under Daubert is not the correctness of the expert’s
conclusions but the soundness of his methodology.” Daubert v. Merrell
Dow Pharm., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (“Daubert II”).
However, an expert’s opinion must be based upon “knowledge,” not merely
“subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590.
Nothing in Daubert requires a court “to admit opinion evidence that is

                                      12
connected to existing data only by the ipse dixit of the expert,” and “[a]
court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997).

    Here, Dooley’s braking opinion was inadmissible under Daubert. The
record does not show that Dooley’s technique—eyeballing the shape of the
crash damage on a vehicle to determine if the vehicle that made the impact
was braking—has been tested, has been subjected to peer review or
publication, has a quantifiable rate of error, or is generally accepted in the
field of accident reconstruction. Dooley’s repeated invocation of the magic
words “training and experience” was insufficient, without more, to
establish the reliability of his opinion under Daubert. As we explained in
Crane, “where an expert relies solely or primarily on their experience, the
proponent of the testimony has the burden ‘to explain how that experience
led to the conclusion [the expert] reached, why that experience was a
sufficient basis for the opinion, and just how that experience was reliably
applied to the facts of the case.’” 206 So. 3d at 102 (quoting United States
v. Frazier, 387 F.3d 1224, 1265 (11th Cir. 2004) (en banc)).

   Simply put, Dooley opined that because the damage to the Lexus went
downward in an “arc-type fashion,” appellant’s car must have been dipping
at the time of the collision, which indicated that appellant was braking.
Dooley’s opinion can therefore be broken down into two distinct
components: (1) applying the brakes causes the front of the driver’s vehicle
to dip downward; and (2) Dooley was able to look at the shape of the
damage to the Lexus to infer that appellant’s vehicle was dipping, and
therefore braking, at the time of the collision. The first component of
Dooley’s opinion was supported by the laws of physics and momentum.
But the second component of Dooley’s opinion—which I will refer to as the
“braking opinion”—was never shown to be reliable.

    Although Dooley initially implied that his braking opinion was based
upon the collection of data, it later became apparent that his opinion was
based solely on his visual impression of the shape of the damage to the
Lexus. Dooley admitted that his opinion was not based on height
measurements of the vehicles or the height of the damage to the Lexus.
Dooley at one point acknowledged: “I’m just testifying as to what this looks
like to me.”

   Dooley testified that “when I see this based on everything I’ve seen in
the past, all my training and experience, it shows me that the car hits and
goes down, is what it tells me. That’s all I can testify to.” At one point,
Dooley admitted that he could not recall studying in his accident

                                     13
reconstruction classes the specific issue of the “curling downward” of
damage due to the dipping effect:

      [W]e go out and we will crash vehicles, we will throw
      motorcycles off the back of trucks and watch them spin, but
      to classify like as actually studying I personally cannot
      recall anything specific dealing with it. Other than
      talking about momentum in general . . . . But as far as
      quoting an actual case study . . . I can’t tell you.

(emphasis added).

   Dooley thus admitted that he had not studied this exact scenario in his
course work. Later, however, when asked whether “this type of downward
arc in damage” was something he was taught in accident reconstruction
classes, he vaguely replied that “[t]here are examples that are given,” that
“you can’t cover every single type of scenario that a crash will happen in,”
that he learned about “weight transfer” and “momentum transfer” in his
classes, and that “we do learn about these things, but I can’t quote you
anything specific off the top of my head as to a case study or somebody
who is in the know, specifically.”

    In my view, contrary to the trial court’s conclusion, Dooley’s
testimony—when examined in its entirety—does not actually support that
he was taught how to examine the shape of crash damage to determine
whether the vehicle that caused the damage was braking at the time of the
collision. The prosecution did not meet its burden to explain how Dooley’s
experience led to the conclusion he reached, why that experience was a
sufficient basis for the braking opinion, and just how that experience was
reliably applied to the facts of this case.

    The deficiencies in Dooley’s methodology became even more apparent
on cross-examination. Dooley admitted that he did no testing in this case
to formulate his braking opinion. Dooley did not know anything about the
metallurgy of the Lexus, whether the Lexus was weaker toward the bottom
than the top, or whether the Lexus had been in any prior collisions. When
asked how he could exclude the possibility that the damage to the Lexus
was not “just as a result of the natural shape and weight of that Mercedes,”
Dooley essentially responded that his “training and experience” allowed
him to reach such a conclusion.

   I would hold that Dooley’s testimony was woefully insufficient to
establish the reliability of his methodology under Daubert. There was no
evidence that Dooley’s methodology had ever been tested, nor was there

                                    14
evidence that Dooley’s methodology had been subjected to peer review and
publication. Dooley could not reference any specific studies or peer-
reviewed materials, much less any blind studies showing that it is possible
to accurately infer braking from the shape of crash damage alone. Dooley
assumed that there were studies on the “curling downward” of damage due
to the dipping effect, but he could not “quote anything specific.” Dooley
did not specifically point to any experience or training where the
occurrence of braking was determined solely on the basis of someone’s
visual impression of the shape of crash damage. For example, Dooley
never testified that he received training in the examination of collision
damage known to have occurred after braking, and how such damage
compares to collision damage known to have occurred without braking.

    On this record, it is also impossible to quantify a potential rate of error
for Dooley’s methodology. Dooley’s testimony failed to address what the
“known or potential rate of error” was for attempting to discern braking
from a visual inspection of the shape of crash damage to another vehicle.
The absence of any testimony in this regard further undermines the
reliability of Dooley’s methodology.

    The state also failed to show that Dooley’s opinion was based upon a
generally accepted methodology in the field of accident reconstruction.
Dooley testified that his opinion dealt with science—specifically, the laws
of physics and momentum. Notably, when asked whether the damage to
the Lexus was “consistent within a reasonable degree of scientific
certainty” with the Mercedes braking, Dooley simply replied: “I can’t tell
you about the scientific – or anything about the braking of the Mercedes.
. . . I’m just telling you what it means to me.” Instead, the best Dooley
could do was reiterate the obvious point that the front of a car goes up
when accelerating and goes down when decelerating.

   Thus, while the laws of physics and momentum provided a reliable
basis for Dooley’s testimony that the front of a vehicle dips downward while
braking, there was no showing that simply looking at the shape of crash
damage on a vehicle is a generally accepted methodology in the field of
accident reconstruction for determining whether the vehicle that made the
impact was dipping (and therefore braking) before the collision.

   In short, Dooley’s braking opinion was insufficient to satisfy Daubert.
None of the Daubert factors supported the admissibility of the opinion.
Dooley did not rely on anything much in formulating this braking opinion,
other than his subjective visual impression of what the damage to the
Lexus “look[ed] like to [him].” There was simply too great an analytical gap
between Dooley’s observations and the braking opinion proffered.

                                      15
   The improper admission of Dooley’s testimony was not harmless. See
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). The dispute over
whether appellant was braking at the time of the collision went to the heart
of appellant’s defense that he had lost consciousness immediately before
the accident. I would reverse and remand for a new trial.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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