FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 38

CASES FROM THE WEEK OF SEPTEMBER 23, 2016

TRIAL COURT SHOULD HAVE EXCLUDED THREE OF PLAINTIFF’S CAUSATION EXPERTS UNDER DAUBERT--OPINIONS LACKED RELIABILITY TO SUPPORT A CAUSATIVE LINK BETWEEN THE PLAINTIFF’S ILLNESS AND THE ASBESTOS-CONTAINING FILTERS USED ON HIS BRAND OF CIGARETTES.

Crane v. DeLisle, 41 Fla. L. Weekly D2133 (Fla. 4th DCA September 14, 2016):

After developing mesothelioma, the plaintiff filed suit against 16 defendants, claiming that each caused him to be exposed to asbestos.  At trial he presented evidence that he was exposed to asbestos fibers from sheet gaskets while working at his job.  He also testified he smoked original Kent cigarettes with asbestos-containing filters for a period of time.

Causation was hotly disputed and even the plaintiff’s own experts did not agree on which products produced the sufficient exposure to asbestos to constitute a substantial contributing factor to his disease.

The defendants challenged the experts’ opinions under section 90.702, newly adopted Florida Daubert law to assess expert testimony.  The Florida Supreme Court currently has before it a case as to whether the legislature unconstitutionally infringed on the Supreme Court’s rule making authority when it enacted this law.

One expert opined that every exposure above background levels to friable inhaled asbestos regardless of the product, fiber type and dose would be considered a “substantial contributing factor” to the plaintiff’s disease.  In contrast, another doctor testified that low-level exposures would not increase the risk.

Under section 90.702 in Daubert, the trial court must act as a gatekeeper, excluding evidence unless it is reliable and relevant.  Trial courts are charged with keeping this gatekeeping function to ensure that speculative unreliable testimony does not reach the jury under the mantel of reliability that accompanies “expert” testimony.

To properly perform the gatekeeping function, and assess whether the 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; (4) whether the theory or technique has been generally accepted by the relevant scientific community.

The court’s gatekeeping function requires more than simply taking the expert’s word for it.  Opinions are not admissible when the only connection between the conclusion and the existing data is the expert’s own assertions.

In this case, a medical doctor with a subspecialty in toxicology had studied and worked in the field of treating workers exposed to industrial chemicals including asbestos.  He followed a two-step process:  first, determining general causation and then particular causation.  The physician stated that he had relied on a list of accepted criteria for determining causation based on epidemiology studies, animal studies, experimental studies and other studies.  Based upon the review and the collection of literature, the doctor testified that both sets of fibers could cause mesothelioma, and when asked whether they were similar in terms of potency, he said “probably.”

The court then went through numerous studies.  The trial judge found that the opinions were supported by sufficient data and peer-reviewed studies, and based on reliable principles and methods. 

The Fourth District disagreed.  Although he may have been an expert in the field of occupational medicine and evaluation of mesothelioma, the court did not find that his opinions were supported by sufficient data or based upon reliable principles and methods under a proper Daubert analysis.  While the doctor stated he relied on “accepted methodology” in reaching his opinions, he did not explain the methodology at all.  Failing to explain the learned criteria and how he applied them, and failing to provide any data or studies of the association between the disease and the fibers at low levels, undermined the reliability.

The Fourth District also found that a theory that “every asbestos exposure level above background level is a substantially contributing factor” has been rejected repeatedly by courts as insufficiently supported by data or testing to satisfy Daubert.  Because this expert’s theory was not supported by any studies and has not been tested and there was no data presented at the hearing showing that the type of asbestos at low levels was associated with the disease, the opinion was more “ipse dixit” and therefore insufficient to support Daubert.

As to another one of the experts, he had published an “article” in a cancer research periodical where he himself smoked 40-year old Kent cigarettes utilizing a hand-held syringe to smoke the cigarettes in an upright position.  The article was not subjected to formal peer review and was published in a section titled “Advances in Brief” and marked as an “advertisement.”  Thus, while the article was published in a cancer research peer review journal, his article was not properly peer reviewed.  While counsel for the plaintiff agreed that the doctor’s research and testing would not be a part of the case, it was referred to and improperly relied on by other experts.

As to one of the experts who the Fourth District found did testify reliably, he had published 60 articles on asbestos in peer reviewed journals.  He had some of the alleged cigarettes analyzed by an independent laboratory group that tests for cigarette companies and the government, and while he acknowledged there was no standard method or body of literature for testing asbestos and cigarette smoke, he testified that his methods were generally accepted in the scientific community among material scientists who did this kind of testing.

The trial court found the expert adequately testified because his testimony was based on sufficient data, and was the product of reliable principles and methods that had been peer reviewed before, and he applied those principles and methods to the facts of the case.  The court then reminded us it is not necessary for a particular application of a methodology to have been peer reviewed to satisfy admissibility standards.

Because the next expert had not provided a basis for his opinion, he did not provide enough for the court to evaluate the reliability of the opinion, essentially telling the court to take his word for it.  Although he had relied on studies, it was only to assume some level of fiber release, and did not establish any dose.  When this doctor testified that the plaintiff’s smoking of Kent cigarettes was a substantial contributing cause for his disease rather than his exposure to asbestos, he had not considered exposure to chrysotile except in very high doses.

The expert who was an industrial hygienist and toxicologist opined that the plaintiff’s mesothelioma risk was increased even by low level exposure to the asbestos.  He explained that based on his opinion of three peer reviewed case control studies which compared rates with the type of asbestos and degree of exposure, and was able to state the background level for the fibers.

That doctor then gave opinions relying on another doctor’s studies and not knowing whether the methodology used was acceptable, although it “sounded reasonable to him,” and not knowing whether that doctor was qualified in that area. 

As to these two doctors, the Fourth District found that they “at least in part” failed to demonstrate the reliability of their opinions, and ruled they should not have been admitted under Daubert.

Finally, the Fourth District observed that the plaintiff’s closing argument which urged the jury to compensate the plaintiff in the same way the defendants compensated their experts was improper, because it focused on the defendants’ ability to pay, and not the loss to the plaintiff.  The Fourth District then found that the $8 million damage award for a victim of mesothelioma was excessive and warranted remittitur.

A NURSING HOME RESIDENT IS NOT BOUND BY A CONTRACT (OR ITS ARBITRATION CLAUSE) TO WHICH THE RESIDENT NEVER AGREED, SIMPLY BECAUSE HE OR SHE MAY HAVE BEEN A THIRD-PARTY BENEFICIARY TO THE CONTRACT.

Mendez v. Hampton Court Nursing Center, 41 Fla. L. Weekly S394 (Fla. September 22, 2016):

A man’s son signed a nursing home contract with a facility to provide for the father’s residency.  The contract included an arbitration clause.  The father did not sign the contract.

The Third District had held that because the father was the intended third-party beneficiary of the nursing home contract, the nursing home could therefore bind him to the contract even though he had never signed it. 

It is true that third persons, who are not parties to the arbitration agreement, are generally not bound by them.  However, two courts have held that residents are bound by such contracts, because the resident is the intended third-party beneficiary of the contract.  Even when a person is not a party to a contract, sometimes under the third-party beneficiary theory, the person may be bound. 

The supreme court disagreed and held that the third-party beneficiary doctrine does not permit two parties to bind a third without the third-party’s agreement, simply because the agreement confers a benefit on the third-party. 

Because the father never agreed to the contract, the third-party beneficiary doctrine did not bind him to the arbitration agreement in the nursing home admission agreement.  When a plaintiff sues under a contract to which the plaintiff is not a party--unlike the father in this case--the courts will ordinarily enforce an arbitration clause contained in that contract absent some other valid defense.  The key is that the third-party beneficiary doctrine enables a non-contracting party to enforce a contract against a contracting party; not the other way around.

ERROR TO DISMISS COMPLAINT FOR FAILING TO COMPLY WITH PRETRIAL ORDER WITHOUT MAKING KOZEL BINDING.

Gordon v. Gatlin Commons Property Owners, 41 Fla. L. Weekly D2126 (Fla. 4th DCA September 14, 2016):

The court found that while there was no excuse for the plaintiff’s counsel’s noncompliance in the case, or the failure to comply with the court’s pretrial order, courts may still not dismiss cases as a sanction without considering the six factors delineated in Kozel.

ORDER DENYING MOTION TO SUBSTITUTE PARTIES AFTER ONE OF THE DEFENDANTS DIES IS A NON-FINAL, NON-APPEALABLE ORDER--APPEAL IS NOT TREATED AS A PETITION FOR CERTIORARI AS THERE IS NO SHOWING OF IRREPARABLE HARM IN SUCH A CASE NOT REMEDIABLE ON APPEAL.

Gomez v. Fradin, 41 Fla. L. Weekly D2132 (Fla. 4th DCA September 14, 2016):

The plaintiffs challenged a trial court’s order denying their motion to substitute parties pursuant to Florida Rules of Civil Procedure 1.260(a) after one of the defendants died.  Specifically, plaintiffs sought to have the trial court appoint a representative of the decedent in a proceeding for breach of fiduciary duty because no estate had been opened for the deceased.

The trial court concluded it had no authority to appoint such a representative in the litigation, and denied the motion noting that the plaintiffs could petition for administration in the probate court.  The court did not dismiss the case as to the deceased defendant.  Because the court’s order merely denied substitution in a non-final, non-appealable order, there was no appellate jurisdiction.

PIP INSURERS’ FAILURE TO NOTIFY INSUREDS THAT IT WILL PAY PURSUANT TO MEDICARE SCHEDULE, DOES NOT AUTOMATICALLY MEAN THAT THE INSURANCE COMPANY CANNOT CONTEST REASONABLENESS WHEN THERE IS NO EVIDENCE OF REASONABLENESS IN THE RECORD.

Progressive Select Insurance Co. v. Emergency Physicians of Central Florida, 41 Fla. L. Weekly D2145 (Fla. 5th DCA September 16, 2016):

In this case where the trial court had ruled as a matter of law that the insurance company could not contest the reasonableness of a bill submitted pursuant to PIP coverage, because the insurer paid the bill based strictly upon a “80% of a ‘200% of Medicare’” without properly electing to do so in its policy.

The appellate court said hat is not the case.  Notwithstanding that insurers must make the election to pay pursuant to the Medicare fee schedule alone clear in its policy, in this case, the plaintiff provider never introduced any evidence of the reasonableness of the bill in the first stead. 

It would seem that once that evidence was introduced, the provider could then argue the payment pursuant to the Medicare fee schedule was invalid for other reasons.  However, in this particular case, there was no introduction of reasonable evidence, and thus the court remanded for further consideration of the bill.