FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 42

CASES FROM THE WEEK OF OCTOBER 19, 2018

FRYE IS THE LAW OF THE LAND IN FLORIDA.

Delisle v. Crane Co., 43 Fla. L. Weekly S459 (Fla. October 15, 2018):

In this asbestos case where the trial court had denied the Daubert challenges to the plaintiff’s experts, but the Fourth District reversed, the Florida Supreme Court addressed the Frye v. Daubert issue in Florida once and for all.

In a detailed and a bit arcane opinion, the court explained how the Florida legislature first codified the rules of evidence in 1976, and then in 1979 the supreme court adopted the evidence code to the extent that it was procedural.

At that time, the court recognized that the rules of evidence could in some instances be substantive and therefore, the sole responsibility of the legislature. In other instances, evidentiary rules could be procedural, and therefore, the responsibility of the supreme court.

The supreme court then chose to adopt the rules to avoid multiple appeals and confusion in the operation of the courts caused by assertions that portions of the evidence code were procedural and therefore unconstitutional, because they had not been adopted by the court under its rule making authority.

The court says that it has continued to adopt the code to the extent its procedural, to avoid the issue of whether the evidence code is substantive in nature and therefore within the province of the legislature. However, in 2000, the court for the first time declined to adopt amendments to section 90.803 to the extent that they were procedural (the admission of former testimony when a declarant is available as a witness).

Since that time, the court has only rarely declined to adopt a statutory revision to the evidence code, noting that generally the legislature has power to enact substantive law, while the court has the power to enact procedural law.

Substantive law has been described as that which “defines, creates, or regulates rights--‘those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property and reputation.’”

Procedural law, on the other hand, is the form, manner or means by which substantive law is implemented. Procedural law “includes all rules governing the parties, their counsel and the court throughout the progress of the case from the time of its initiation until final judgment and its execution.” In other words, it is the method of conducting litigation involving rights and corresponding defenses.

Admittedly, the distinction between substantive and procedural law is not always clear. The law is considered to be substantive when it both creates and conditions a right. However, when procedural aspects overwhelm substantive ones, the law may no longer be considered substantive.

The rule that expert testimony should be deduced from generally accepted scientific principles, the court observed, has been the standard in Florida for many years, and the court reaffirmed that it was still the standard. The court noted that it adopted the Frye test, irrespective of the evidence code which was in fact in place at that time.

In Hadden v. State, the supreme court rejected the argument that the legislature’s enactment and the supreme court’s subsequent adoption of the evidence code replaced the Frye standard with the balancing test that existed in the code.

It was after decades that the federal court applied the Frye standard, that Congress decided to revise the Federal Rules of Evidence, and in 1993, the U.S. Supreme Court decided Daubert, ruling it was the appropriate standard for admitting expert scientific testimony in federal trials. The U.S. Supreme Court ultimately agreed with the petitioners that Frye was superseded by the adoption of the revised Federal Rules of Evidence.

In Daubert, the U.S. Supreme Court found that otherwise probative and scientifically valid evidence was being excluded under the Frye standard, and the change in rule 702 was necessary to permit additional relevant evidence to be considered, even it was based on scientific methods or principles that were not yet generally accepted.

However, the Florida Supreme Court has unanimously emphasized its continued application of Frye to guarantee the reliability of new or novel scientific evidence. Therefore, even following the supreme court’s repeated affirmations of Frye, in 2013 when the legislature amended section 90.702 to incorporate Daubert, it then infringed on one branch of government, exercising the powers of the other branches.

Pursuant to Article II, Section 3 of the Florida Constitution, one branch of government may not exercise any of the powers of the other branches, and Article V, Section 2(a) provides the supreme court the authority to adopt rules for the practice and procedure in all courts. As such, the legislature may only repeal rules of the Florida Supreme Court by “general law enacted by two-thirds vote of the membership of each house of the legislature.”

Because the amendment was not written to appeal Frye, but instead to overrule the court’s decision (essentially trying to prohibit the use of pure opinion testimony), the vote also did not meet the requirement for the two-thirds vote.

The supreme court also noted how it has found times when the legislature exceeded its authority in adopting statutes that infringed on the authority of the supreme court to decide matters of practice and procedure in other instances, for example, sections 57.071(2) and 44.102.

Section 90.702 as amended in 2013 was not substantive, because it does not create, define or regulate a right. In fact, that statute is one that slowly regulates the action of litigants in court proceedings, and has no substantive elements to it.

However, the consideration of the constitutionality of the amendment does not end with the court’s determination that the provision was procedural. It must also conflict with a rule of the court.

While the legislature purports to have pronounced public policy in overturning the Marsh case, the supreme court holds that the rule announced in Stokes and reaffirmed in Marsh was a procedural rule of the court, meaning that the legislature could not repeal it by a simple majority.

The supreme court wrote that it has previously recognized that Frye is inapplicable to the vast majority of cases, because it applies only when experts render an opinion that is based upon new or novel scientific techniques. The court has also held that a trial court has broad discretion in determining a range of subjects on which an expert can testify, and that the trial judge’s ruling will be upheld absent clear error.

In ruling that this asbestos testimony was admissible, the court stated that medical causation testimony is not new or novel, and therefore, not subject to a Frye analysis.

At the end of the opinion, the court observed that defendants had also challenged the trial court’s denial of remittitur, which the Fourth District granted. The court then rejected the Fourth District’s reasoning, agreeing with the trial judge’s denial of no remittitur.

DENIAL OF A PARTY’S RIGHT TO DEPOSE A MATERIAL WITNESS IS SUBJECT TO CERTIORARI REVIEW, AND DENIAL OF A CONTINUANCE WHEN PLAINTIFF CANNOT BE AT TRIAL ALSO DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW.

Solonina v. Artglass International, 43 Fla. L. Weekly D2298 (Fla. 3rd DCA October 10, 2018):

The trial was set for a date in September that plaintiff’s trial counsel had informed the trial court that he had a prepaid vacation where he would be out of the country. He then informed the court that the plaintiff and her husband, and their three children would then be on a prepaid trip around the world from August until May of the next year. The trial court acknowledged the trial attorney’s vacation time, but reset the trial for when he knew the plaintiff would not be available. As such, the court departed from the essential requirements of law.

Generally orders denying discovery are not reviewable by certiorari, but there is an exception when a discovery order departs from the essential requirements of law causing material injury to the petitioner throughout the remainder of the proceedings and leaving no adequate remedy on appeal. A trial court’s denial of a party’s right to depose a material witness has been found to constitute irreparable harm subject to certiorari review.

Similarly, due process requires that a party be given the opportunity to be heard and to testify and call witnesses on a party’s behalf and the denial of this right is fundamental error. While the trial court possesses broad discretion in granting or denying a continuance, there are instances in which a trial court’s denial of a motion for continuance may be an abuse of discretion. While courts have broad authority to control their dockets, trial judges must use the authority to manage their courtrooms so people have their business conducted fairly, efficiently and expeditiously, but this must be balanced against a party’s right to have his or her day in court.

In this case, the trial court departed from the essential requirements of law by granting the plaintiff’s motion for continuance but then rescheduling the trial for a date that the trial court knew she would not be available and when plaintiff’s counsel would not be able to take depositions of material witnesses (because the plaintiff was a material witness).

BEFORE ENTERING AN ORDER FOR FAILING TO COMPLY WITH A COURT’S DISCOVERY ORDER, COURT MUST MAKE EXPRESS FINDINGS THAT FAILURE TO COMPLY WAS A RESULT OF WILLFUL OR DELIBERATE DISREGARD OF THE COURT’S AUTHORITY.

DSLRPROS, Inc. v. Lalo, 43 Fla. L. Weekly D2320 (Fla. 3rd DCA October 10, 2018):

The trial judge struck the defendant’s pleadings and entered default judgment, based on the defendant’s failure to comply with the court’s order. The record reflected that the trial court entered two separate and distinct orders on that date, one being a discovery order directing the defendant to produce discovery within 30 days, and the other an order permitting the defendant’s attorney to withdraw as their counsel and directing the defendant to retain new counsel within 20 days. The defendant failed to comply with either order.

The court observed that on the record, it was entirely unclear as to why the trial court struck the appellant’s pleading. Was it for violation of the discovery order? For failure to timely retain new counsel? Both?

Regardless of the reason, reversal was warranted because the trial court did not make-nor was there any evidence to support-the express finding that the failure to comply with the trial court’s order was the result of willful and deliberate disregard of the court’s authority which is required.