Baseless opinions still don't fly under Daubert.

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 32

CASES FROM THE WEEK OF AUGUST 9, 2019

BECAUSE TRIAL COURT ERRONEOUSLY ADMITTED AN EXPERT’S OPINION THAT HAD NOT BEEN SHOWN TO BE BASED UPON SUFFICIENT FACTS OR DATA, OR THE PRODUCT OF RELIABLE PRINCIPLES AND METHODOLOGY, IT AMOUNTED TO LITTLE MORE THAN A SUGGESTIVE AND UNVERIFIABLE OPINION THAT REQUIRED A NEW TRIAL.

Kemp v. State, 44 Fla. L. Weekly D1974 (Fla. 4th DCA July 31, 2019):

The main issue at this trial involving vehicular manslaughter was whether the defendant had operated his vehicle in a reckless manner that caused death or great bodily injury to another. A key factual dispute was whether the defendant was in control of his car at the time of the crash. To prove this disputed element, the state relied on an expert who testified that the defendant had applied his brakes before the crash. This opinion was based solely on the expert’s “visual observation” of the crush damage to the victims’ car.

In forming his opinion, the expert stated he had “eyeballed” the shape of the crash damage to determine if the vehicle that made the impact was braking. However, there was no evidence that such a method had been tested, was subject to peer review of publication, had a quantifiable rate of error, or is generally accepted in the field of accident reconstruction. The expert repeatedly invoked the magic words regarding his “training and experience,” but that was insufficient, without more, to establish the reliability of his opinion under Daubert.

Where an expert is relying solely or primarily on his experience, the proponent then has the burden to explain how the experience led to the conclusion reached, why that experience was a sufficient basis for the opinion, and how that experience was reliably applied to the facts.

In this case, the prosecution failed to meet its burden to explain how the experience led to the conclusion the expert reached, why the experience was a sufficient basis for the braking opinion and just how that experience was reliably applied to the facts.

Because this expert testimony was woefully insufficient to establish the reliability of his methodology under Daubert, and there was no evidence that the methodology had ever been tested or subject to peer review and publication, the trial court abused its discretion in allowing the expert to testify to this opinion.

Demonstrating how difficult Daubert is to apply, in the face of all this, Judge May wrote a vociferous dissent asserting that the state had demonstrated that the opinion was reliable and admissible.

SCHEDULED DEPOSITION OF INSURER’S REPRESENTATIVE DID NOT SUPPORT CERTIORARI.

Windhaven Insurance Co. v. Mesquita, 44 Fla. L. Weekly D1951 (Fla. 3rd DCA July 31, 2019):

After plaintiff was involved in an auto accident, his insurance company sought to rescind his policy due to an alleged misrepresentation in the insurance application. Plaintiff sued the insurer.

Upon the filing of the plaintiff’s amended complaint, the insurance company filed a notice of confession of judgment, acknowledging that the plaintiff was entitled to PIP benefits, as well as coverage for his property damage claims. The insurer also conceded plaintiff’s entitlement to attorney’s fees and costs.

At the time the insurer filed its confession of judgment, plaintiff had already filed a motion to compel the deposition of the insurance company’s representative. The trial court ultimately granted that motion. The trial court ruled to allow the deposition without limiting the scope of the inquiry only to PIP or property damage but did prohibit plaintiff from seeking financial information regarding the insurance company.

The insurer sought certiorari. It argued that because it confessed judgment, the discovery became irrelevant. The court rejected that argument, finding the issue of damages still had to be adjudicated, and the plaintiff had to prove whether there were damages sustained as a result of the insurer’s initial denial of coverage. Thus, the confession of judgment did not end the case.

The court further acknowledged that while the insurance company’s argument that a deposition of its agent might not shed light on the outstanding damages issues, and while the order allowing discovery could potentially lack relevance, that did not make the order subject to certiorari relief. The discovery of irrelevant materials does not necessarily cause irreparable harm.

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NO ERROR IN DENYING DEFENDANT’S MOTION TO COMPEL ARBITRATION IN NURSING HOME CASE - DURABLE POWER OF ATTORNEY WITH HEALTH CARE SURROGATE PROVISIONS DID NOT CONFER “BUSINESS CHOICE” AUTHORITY CONCERNING DISPUTE RESOLUTION ON THE SURROGATE.

Manor Oaks v. Campbell, 44 Fla. L. Weekly D1964 (Fla. 4th DCA July 31, 2019):

The question in the case was whether a document that designates a health care surrogate is broad enough to allow that surrogate to consent to an arbitration provision in a nursing home admission form. Because the document in this particular case was narrowly focused on the surrogate’s power to make health decisions, and not on the person’s business choices concerning dispute resolution, the trial court properly ruled to deny the nursing home’s motion to compel arbitration.

GRAVES AMENDMENT BARRED RECOVERY IN A SHORT TERM RENTAL CASE WHERE PLAINTIFF NEITHER ALLEGED NOR PROVED ANY NEGLIGENCE OR CRIMINAL WRONGDOING ON PART OF THE DEALERSHIP—GRAVES DOES NOT REQUIRE A WRITTEN RENTAL AGREEMENT.

Collins v. Auto Partners V. LLC, 44 Fla. L. Weekly D1967 (Fla. 4th DCA July 31, 2019):

The plaintiff was severely injured after being struck by a vehicle driven by an auto dealership employee. He filed an amended complaint against the driver, with one count for vicarious liability against the dealership.

The dealership claimed the vehicle was a short-term courtesy vehicle it provided to its employee in his capacity as a customer while his car was undergoing service. It claimed that the Graves amendment limited its liability.

In its answer, the dealership admitted it owned the vehicle, but asserted several affirmative defenses including that the damages were limited by section 324.021 because the dealership leased the vehicle to its employee, as well as protection under the Graves amendment under 49 U.S.C. § 30106.

The defendant attached a rental agreement, documenting the rental of a vehicle from March 31, 2017, to April 3, 2017. However, that agreement was concluded prior to the accident. The dealer later attached a second rental agreement reflecting the use of a different vehicle, but it was undated and executed after the employee returned to work following the accident.

In arguing against summary judgment, plaintiff argued the first rental agreement was fabricated because the employee had denied ever seeing it or signing it, and argued that the rental agreements were tantamount to perjury sufficient to warrant dismissal of the defendant dealerships pleadings (although the court notes that the plaintiff didn’t ask for that relief). Plaintiff asserted that there were issues of fact regarding whether the dealership had leased the car as a rental vehicle.

There were also issues of fact about whether this purported “courtesy vehicle” was actually such a vehicle. Those cars have never been sold and have stickers on the back window indicating that they were dealership rental cars. The car involved in this accident was pre-owned and did not have a courtesy vehicle sticker. That plaintiff argued the dealership was not entitled to any partial summary judgment capping liability at $600,000 pursuant to the § 324.021(9)(b)3, because the statute applied only to an owner who was a natural person.

The dealership argued that the employee had use of the courtesy loaner vehicle as a dealership customer. The only question was whether the dealership was vicariously liable, and if so, whether there was a cap on liability. The defendant argued that whether the employee had executed a rental agreement was irrelevant because Graves does not require a written rental agreement.

The trial court found that the question was whether the employee had paid for the services and was using the car as a customer. Plaintiff asserted there were factual issues regarding that question.

The court reviewed the history of Florida’s dangerous instrumentality doctrine, which was adopted in 1920 and imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that vehicle to an individual whose negligent operation causes damage to another.

Section 324.021 lays out three categories of relationships to vehicles that can limit liability: (1) lessors who rent vehicles for one year or longer; (2) lessors who rent vehicles for less than one year; (3) an owner who is a natural person and loans a vehicle to any permissive user.

The court found the dealership qualified under either section one or two.

The court then explained how the Graves amendment adopted by Congress in 2005 has preempted Florida Statutes and absolves an owner of a rental vehicle of liability if (1) the owner is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner or an affiliate of the owner.

Because the dealership in this case was engaged in the trade or business of renting or leasing motor vehicles, and plaintiff did not allege or prove any negligence or criminal wrongdoing, the only question was whether the dealership “had rented” the vehicle to the employee.

The trial court found and the Fourth District agreed that while there may have been disputed facts regarding whether the dealership provided a car to the employee without executing a rental agreement, that issue was not material to the legal liability issue. The court observed that the Graves amendment does not require a written rental agreement, thereby disposing of the dispute over the legitimacy of the agreements. Also, the dealership established by affidavit and deposition testimony that the employee had taken his car in for service and was provided a short-term rental vehicle while it was being serviced.

Thus, under these facts, the trial court properly entered summary judgment in favor of the defendant dealership, sadly leaving the plaintiff without recourse.

WHEN A JURY TRIAL IS DEMANDED BY EITHER PARTY, DEFENDANT HAS THE RIGHT TO A JURY TRIAL ON THE ISSUE OF DAMAGES, EVEN IF ITS ANSWER GETS STRICKEN AND A DEFAULT JUDGMENT GETS ENTERED.

Yanofsky v. Isaacs, 44 Fla. L. Weekly D1972 (Fla. 4th DCA July 31, 2019):