Published January 2017
By: Ted Babbitt
Crane Co. v. Delisle, 41 Fla. L. Weekly D2133 (Fla. 4th DCA Sept. 14, 2016) was an asbestos case involving a plaintiff who had mesothelioma. The major issue on appeal involved whether expert testimony offered by both the plaintiff and the defendant was sufficiently reliable to support the trial court’s ruling allowing that testimony under the Daubert test.
Fla. Stat. 90.702 adopts the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and clarified in General Electric Co. v Joiner, 522 U.S. 136 (1997) and Kumho Tire Co., Ltd. v Carmichael, 526 U.S. 137 (1999).
The trial judge’s responsibility in testing expert testimony in Florida under Daubert and the above cited statute is set forth by the Court at 2134 as follows:
Under section 90.702 and Daubert, 509 U.S. at
597, the trial courts must “act as gatekeepers,
excluding evidence unless is it reliable and
relevant.” Hughes v. Kia Motors Corp., 766
F.3d 1317, 1328 (11th Cir. 2014). The trial
courts “are 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.’” Id. at
1328-29 (quoting Rink v. Cheminova, Inc.,
400 F.3d 1286, 1291 (11th Cir. 2005)). “Whether
an expert’s testimony is reliable depends on
‘the particular facts and circumstances of the
particular case.’” Id. at 1329 (quoting Kumho
Tire, 526 U.S. at 158).
To properly perform its gatekeeping function,
the court must first determine that the expert
is “qualified on the matter about which he
[or she] intends to testify”; second, that the
expert is employing “reliable methodology”;
and third, that the expert’s testimony can
“assist the trier of fact through the application
of expertise to understand the evidence or
fact in issue.” Id. In assessing whether an
expert’s methodology is reliable, the court
should consider the following factors: (1)
whether the theory “can be (and has been)
tested”; (2) whether it “has been subjected to
peer review and publication”; (3) “the known
or potential rate of error” for “a particular
scientific technique”; and (4) whether the
“theory or technique has been generally
accepted by the relevant scientific community.”
Daubert, 509 U.S. at 593-94.
The case under discussion involved a question of whether the plaintiff’s exposure to asbestos contained within cigarette filters and other products was sufficient to cause mesothelioma, a signature disease caused by asbestos. Plaintiff testified that he had smoked Kent cigarettes which had a filter which contained a form of asbestos and had also been exposed to asbestos by working on sheet gaskets manufactured by one of the defendants as well as exposed to numerous other products produced by other nondefendant manufacturers who were potential Fabre parties.
A significant issue was which of these exposures caused the mesothelioma.
The appellate court examined the testimony of each expert. At 2135 the Court concluded:
Thus, “an expert opinion is inadmissible when
the only connection between the conclusion
and the existing data is the expert’s own
assersions[.]” McDowell, 392 F. 3d at 1300.
Additionally, 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.” Frazier, 387 F.3d at 1265.
The court utilized this test in examining and weighing the reliability of each expert. A lawyer, who is the proponent of the expert testimony, must elicit from the expert those elements in order to pass the Daubert test.
In finding that the trial court abused its discretion in allowing into evidence several of the expert opinions, the appellate court repeatedly emphasized that the expert has responsibility to affirmatively explain the scientific basis for their opinion. It is not sufficient that the expert is well qualified to give an opinion. In addition, the expert must establish the scientific basis for that opinion and how that opinion was derived. At 2136 in rejecting one of plaintiff’s experts, the Court found:
Not only did Dr. Dahlgren fail to explain the
Bradford Hill criteria or how they applied, he
did not provide any data or studies of the
association between mesothelioma and
chrysotile asbestos at low levels. All of
the studies upon which he relied were
studies of mixed types of asbestos, even
though he was giving opinions on causation
from products containing only chrysotile
asbestos.” And his assumptions on the
equivalency of the potency of all types
of asbestos were also unsupported by
any reliable data. Instead, they were
based upon his thinking that all
commercial types of asbestos were
probably of the same potency. As well,
he thought that his opinion that levels
of exposure “significantly” above
background level could cause disease
were “fair.” Thus, even if the methodology
were appropriate, it was not supported
by any data.
On the other hand, the Court found that certain of plaintiff’s experts did sufficiently establish the scientific validity of their opinions even though there weren’t peer review studies which were identical to those opinions. At 2137, the Court holds:
The trial court did not abuse its discretion
in holding Dr. Millette’s testimony admissible.
He testified extensively as to his methods,
which were simply new applications of
generally accepted methodologies. It is not
necessary for a particular application of a
methodology to have been peer reviewed
to satisfy admissibility standards. See
Kumho Tire Co. v Carmichael, 526 U.S.
137, 151 (1999) (“It might not be surprising
in a particular case, for example, that a
claim made by a scientific witness has
never been the subject of peer review,
For the particular application at issue may
never previously have interested any
It is important to understand that Daubert cuts across plaintiff and defendant lines. The Court found that the opinions of an expert utilized by the defendant to establish that a nonparty had to be placed on the jury verdict as a Fabre defendant also did not pass muster under the Daubert test. Experts on both sides of the case must meet the standards set forth in Daubert.
This case reviews the responsibility of experts, attorneys, and courts to establish under the Daubert test sufficient scientific basis for expert opinion.