A significant shift in the law has just made it more difficult for the injured to get justice in Florida. The change occurred quietly this week when a Florida appellate court was asked to consider the dismissal of a Miami woman’s case against her employer for causing her to deliver her child prematurely—twenty weeks early.
Maria Franco Perez, 26, was employed by Bell South during a time when she was diagnosed as having a high-risk pregnancy with her first child. Her obstetrician, Dr. Isidro Cardella, specifically asked that she be given frequent bathroom breaks to accommodate her constellation of medical conditions.
Bell South Telecommunications fired her for “nonperformance”; two days later she suffered a placental abruption while giving birth to Osmany Anthony Perez. She sued Bell South, and Dr. Cardella testified that the stress from her work at Bell South caused her to deliver prematurely. As her treating physician, he based his opinion upon his education and his experience of more than 20 years of practicing obstetrics.
Winning a personal injury cases in Florida almost always depends on the use of expert witnesses. Our personal injury lawyers in Miami frequently hire expert witnesses to testify on subjects ranging from how and why an accident occurred (accident reconstructionists), to the injuries themselves (orthopedic surgeons, neurologists, and radiologists), and the cost of medical care and time lost from work (economists and life-care planners).
Until last year, under a paradigm called the Frye Test, experts were permitted to testify, provided that their opinions were reached by one of two paths: pure-opinion testimony or scientific theory.
Pure-opinion testimony was admissible as long as the expert’s opinion was based upon the expert witness’s experience and education. By contrast, scientific opinion required that the opinion be sufficiently established in the scientific community to be “generally accepted”— which means corroboration by published articles or lectures or some other form of “acceptance” by other experts in the field or subject matter in question.
The Frye Standard would have allowed plaintiffs like Mrs. Perez to get her case to a jury based upon the pure opinion of her doctor that the stress at work caused her to deliver her child prematurely. Then, it would have been up to a jury to decide whether or not the opinion was credible, either accepting it and returning a verdict for her injured newborn, or rejecting it and finding for the defense.
Last year everything changed when the Florida legislature adopted a new and more stringent admissibility test that has been utilized in thousands of cases in Federal court to keep plaintiffs and their experts away from jurors. That test is known as the Daubert Standard. To make matters worse for the injured, the new Daubert Standard is to be applied retroactively to cases that may have been filed and pending prior to the change in the law.
The Daubert Standard raises the bar for what testimony is or is not admissible in a case by eliminating the first pathway of pure-opinion testimony. In other words, an expert witness—no matter how skilled, experienced or, as in the case of Dr. Cardella, how much in possession of first-hand knowledge of the patient and the events leading to her premature delivery—is not permitted to render any opinion testimony. Rather, the only admissible testimony will be that which is “scientific knowledge,” derived not from mere opinion but by a “scientific method.”
Scientific methods require empirical testing that can be systematically verified. In Ms. Perez’s case, doing so would require that some kind of study be performed and then verified demonstrating that stressing out a woman with a high-risk pregnancy can in fact cause her to deliver prematurely. Obviously no such test exists, and without it there is, according to the court, no “scientific knowledge” linking stress to placental abruptions.
Since Dr. Cardella’s proposed opinion was based solely upon his own experience and education and not on any scientific analysis, the court struck his opinion, leaving Ms. Perez without any expert—which then led the court to dismiss her entire case, before she ever saw a jury.
She appealed the dismissal unsuccessfully to Florida’s 3rd District Court of Appeal, even with my favorite appellate judge on the panel, the brilliant Hon. Leslie B. Rothenberg. Judge Rothenberg was duty-bound to follow Florida’s new expert witness standard, which was applied retroactively to Ms. Perez’s case even though her cause of action precipitated the change in the rules. Read the entire opinion here.
This personal injury case is yet another example of how shifts in the law can and do make access to justice progressively more difficult for the injured. I am sure few people who are injured in a Florida hospital, car accident, or slip and fall at a grocery store in Miami will ever have heard of Frye or Daubert, nor will they appreciate just how much our legislature’s actions will affect their cases and those of millions of others. But this change in admissibility of expert testimony is a monumental gauntlet that all injured people seeking their day in court will now be forced to cross. In Ms. Perez’s birth-trauma case, it made the difference between having a case go to a jury or being summarily dismissed.
We are passionate lawyers for the injured. If you have been involved in a fall on a Carnival cruise or on another passenger ship, in a car accident—or have been injured by a defective product or medical device—contact my office for a free legal consultation about your potential claim. Call me toll-free at 1-866-597-4529 or email me today.