Third DCA: Applying Daubert Under Florida Law In Perez v. Bell South Telecommunications, Inc.

The Third District Court of Appeal of Florida recently issued an opinion in Perez v. Bell So. Telecomm., No. 3D11-445, 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014),which represents the Third District's first pronouncement applying Daubert under Florida law since the legislative amendment took effect on July 1, 2013, repudiating the archaic Frye standard and pure opinion testimony in favor of the more widely accepted Daubert standard.

The case involved a negligence suit brought by Osmany Anthony Perez, a minor, by and through his mother, Maria Franco Perez, against the mother's employer, Bell South Telecommunications, for the premature birth of the minor as a result of placental abruption, which the Plaintiff's expert opined was induced or caused by "work place stress." Id.at *4.

By way of background, Ms. Perez became pregnant while employed as a call center operator. Id.at *3. Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, classified Ms. Perez's pregnancy as "high risk" on May 5, 2004. Id. On July 30, 2004, Ms. Perez reported to Dr. Cardella being under a lot of stress at work. Id. Dr. Cardella provided Ms. Perez with a note to give to her employer placing a limitation of 40 hours on her work week and requesting frequent bathroom breaks due to the high risk nature of her pregnancy. Id. Less than two weeks later, Ms. Perez was fired for non-performance. Two days after her firing, she suffered a placental abruption and delivered her child at twenty weeks. Id.at *3-4.

Dr. Cardella opined that "workplace stress," exacerbated by Bell South's alleged refusal to accommodate Ms. Perez's medical condition, was the causal agent of the placental abruption and premature delivery. Id.at *4. At his deposition, Dr. Cardella essentially testified and conceded there was no way of ever knowing for sure what caused the placental abruption, his conclusions were merely his own personal opinion, his opinion was unsupported by credible scientific research, there were no studies or medical literature regarding workplace stress tied to placental abruption, and he had never spoken on the topic and was not aware of anyone who had. Given the untested, unverified, hypothetical, speculative, conjectural, and ipse dixit nature of his opinions, the trial court excluded his opinions under Frye.

Since Dr. Cardella's opinion testimony was the sole connection between the premature birth and Bell South, the trial court's exclusion of his opinion...