Still waiting on Daubert/Frye decision !

It might have been billed as the definitive case that would decide whether the Daubert or Frye standards would control the qualification of expert witnesses in Florida courtrooms, but the Florida Supreme Court spent much of its March 6 oral argument debating whether the case should even be before it.

Justices also discussed what the experts had testified to in the case, including the finding by the Fourth District Court of Appeal that some of the plaintiff’s expert testimony should have been disallowed under either Daubert or Frye.

The court was hearing Richard Delisle v. Crane Co., et al., Case No. SC 16-2182. Delisle developed mesothelioma, a disease caused by exposure to asbestos, after, among other things, smoking Kent cigarettes in the early 1950s when they included a filter with an asbestos compound and working for several years for Crane, Co., in the 1960s making gaskets that included another asbestos compound.

The case has heightened significance because the court has ruled for years that the Frye standard would be used for qualifying expert witnesses. In 2013, the Florida Legislature amended the evidence code to mandate switching to theDaubert standard, which is used in the federal courts and at least in some form by most other states.

The Bar’s Code and Rules of Evidence Committee and the Bar Board of Governors recommended the Supreme Court not adopt the change in the Rules of Evidence to the extent it was procedural when it considered the legislative changes to the evidence code. The court however, said it would not act until it had an actual case in controversy.

In its initial brief, Delisle’s attorneys said this case presented exactly that opportunity.

The jury in the case held R.J. Reynolds Tobacco Company, which now owns the company that made Kent, and Crane Company responsible for Delisle’s disease and awarded significant damages. The trial judge followed the legislative-approved Daubert standard in approving expert witnesses, which were used by both sides.

On appeal, the Fourth District Court of Appeal, held it was an error under Chapter 13-107, §1, Laws of Florida, to admit expert testimony on medical causation and reversed the judgments. The plaintiffs had objected to the trial court’s use of Daubert, saying it had not been approved by the Florida Supreme Court. In a footnote, the Fourth DCA rejected that claim saying “statutes are presumed to be constitutional and are to be given effect until declared otherwise.” That footnote also said most of the expert testimony would not have passed muster under Frye.

Attorney James Ferraro had barely begun his presentation on Delisle’s behalf when Justice Charles Canady interrupted with this question: “When you get to your presentation on your case, could you tell me the basis for what your theory is on how the court has jurisdiction in this case?”

Ferraro replied the conflict was the Fourth DCA’s decision and the existence of Frye, since the Florida Constitution grants the Supreme Court oversight of court procedural rules.

That only prompted Justice Alan Lawson to note it’s a different section of the Constitution that sets out the court’s jurisdiction to hear and decide cases. Justice Fred Lewis pressed further, after Ferraro referred to the footnote, asking exactly where the conflict was between the Fourth DCA’s ruling and any other case which the Supreme Court could resolve.

“[You] have conflict jurisdiction because of the conflict between the Fourth District and existence of Frye,” Ferraro replied.

He also argued that until the Supreme Court approves Daubert in the Rules of Evidence, “we’re still a Frye jurisdiction.”

Canady responded: “You are presuming the answer to the question that you want to present. I cannot follow the workings of your mind on this issue.”

Ferraro argued that the Fourth DCA wound up rejecting testimony that had been accepted in similar cases on exposure to asbestos and that experts in the case agreed that any exposure to asbestos above the “background level” could cause mesothelioma.

Justice Barbara Pariente asked about the footnote, saying the expert testimony would have been rejected under the Frye standard as well as Daubert. Ferraro said the Fourth DCA decision misrepresented the actual trial record.

“It’s hard to argue the record was misstated in an opinion,” he said.

Elliot Sherker, representing R.J. Reynolds, pounded away at the procedural question, and said the plaintiffs failed to preserve that issue at the trial-court level.

He argued, in response to a question from Justice Peggy Quince, that the Legislature’s Daubert legislation was a substantive issue because it “changed the standard for how the trial court is to determine, to put it bluntly, what is junk science and what is not.”

Quince and Pariente pressed both Sherker and Richard Doran, who represented Crane, Co., about the expert testimony and various tests and studies it was based on.

Sherker said only one test more than 50 years ago had been performed on whether the Kent cigarette filter in question released asbestos fibers. It was not peer reviewed and because of degradation, it would be difficult to do a similar test today. Yet, he said, much of the plaintiff’s expert testimony relied on that test.

“The line between Daubert and Frye is exceedingly thin. With apologies to Gertrude Stein, junk science is junk science is junk science and no matter what lens you look at this testimony through, the basic methodology on which these experts relied has never been subject to peer review, has never been tested by the scientific method, and was created by a witness who the plaintiffs refused to call at trial,” Sherker said.

Doran said the only evidence about Crane, Co.’s product would have failed under either Frye or Daubert and “it’s difficult to understand why we are in this case.”

But Quince said, “I find it hard to look at the statement that this wouldn’t apply even under Frye.”

And Justice Fred Lewis said it might be impossible to produce the kind of tests Doran and Sherker seemed to say were necessary.

“We’ve heard the argument before that the scientists must come down with specific testing on human subjects and present that evidence before you can present the case for some kind of toxic exposure,” he said. “That is just contrary to common sense that we’re going to do experiments on humans with toxic substances that produce death.”

On his rebuttal, Ferraro, in response to a question from Lewis, said the Fourth DCA did accept as valid a test showing asbestos fibers were released from the cigarette filter, and it would be valid under Daubert or Frye. He also said there’s no doubt on the link between asbestos and mesothelioma.

“[Delisles’] exposure occurred over 50 years [ago]. Since that time, there has been decades of epidemiology saying there is no safe level [of asbestos exposure] and they all agree,” Ferraro said.

The debate over the Daubert and Frye standards has been a high-profile issue and was contested for several years in the Legislature before it passed its change to the evidence code in 2013. Several other parties filed amicus briefs in the case: the Florida Justice Association, Concerned Physicians, Scientists and Scholars, the Florida Defense Lawyers Association, the Washington Legal Foundation, the Florida Justice Reform Institute, the National Association of Criminal Defense Lawyers, and a group of doctors and professors. The first two supported the petitioner, the rest supported the respondent.