SHOW YOUR WORK: FLORIDA APPELLATE COURT REINFORCES NEW BAN ON “PURE OPINION” EXPERT TESTIMONY
Giaimo v. Florida Autosport, Inc., et al., 39 Fla. L. Weekly D2484a (Fla. 1st DCA 2014)
Florida’s First DCA recently reversed a decision of the JCC regarding apportionment of damages due to a 2013 legislative change regarding expert opinion testimony. See Giaimo v. Florida Autosport, Inc., et al., 39 Fla. L. Weekly D2484a (Fla. 1st DCA 2014). Mr. Giaimo allegedly aggravated pre-existing injuries in a rear-end motor vehicle accident which occurred in the course and scope of his employment. At a workers’ compensation hearing, Mr. Giaimo unsuccessfully objected to apportionment testimony which he alleged was pure opinion testimony in violation of the recently-amended § 90.70, Fla. Stat. (2013). After judgment was entered based on the apportionment testimony, he appealed the JCC decision.
Before the JCC, Mr. Giaimo’s authorized treating neurosurgeon, Dr. Albert Lee, assigned percentages to both Mr. Giaimo’s pre-existing condition and the injuries sustained in his work- related accident. However, “[w]hen Dr. Lee was asked how he arrived at the percentages attributable to Giaimo’s pre-existing condition and those attributable to the workplace injury, he explained that “when I was asked and thought about it, that is the answer that I came up with.”” Id. The First DCA noted that Dr. Lee’s apportionment testimony “provides no insight into what principles or methods were used to reach his opinion” and that “Dr. Lee did not demonstrate that he applied any such principles or methods to the facts of this case.”
The First DCA further noted that such testimony, though previously acceptable as pure opinion, was no longer sufficient under § 90.702:
“In 2013, the Florida Legislature modified section 90.702, “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), and to no longer apply the standard in Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923)[.]”
Finding that the 2013 Legislature’s adoption of the Daubert standard reflected its intent to prohibit pure opinion testimony, the First DCA disagreed with the JCC’s conclusion that Dr. Lee’s testimony met the new standard and reversed its decision “[b]ecause no basis in the records exists to support that Dr. Lee’s testimony was “the product of reliable principles and methods” and that Dr. Lee applied such principles…”
POST-TRIAL MOTIONS FOR ATTORNEYS’ FEES DO NOT WAIVE ATTORNEY-CLIENT PRIVILEGE AND PERMIT OPPOSING PARTY DISCOVERY OF LITIGATION FILE TO DETERMINE GOOD-FAITH
Butler v. Harter, 39 Fla. L. Weekly D2487g (Fla. 1st DCA 2014)
Florida’s First DCA recently quashed an order requiring defense counsel to turn over its entire litigation file so that a plaintiff could challenge an award of attorney’s fees based on a proposal for settlement which she alleged had not been made in good faith. See Butler v. Harter, 39 Fla. L. Weekly D2487g (Fla. 1st DCA 2014). After Ms. Butler filed suit seeking damages allegedly incurred in an automobile accident, she was served with a proposal for settlement in the amount of $20,000.00. After rejecting the proposal for settlement and proceeding to trial, Ms. Butler prevailed but the jury awarded her only $2,046.00 in damages which was then reduced to $409.00 due to post-trial set-offs.
When defense counsel then filed a motion for attorney’s fees, including an attorney affidavit attesting that the time billed was true and accurate, Ms. Butler filed a discovery request seeking the litigation file and, in response to a motion for protective order, “filed a motion to compel discovery of the litigation file, arguing access to the entire file was necessary in order to properly defend the motion for fees and costs.” Id. Among her arguments, Ms. Butler “asserted that the work-product privilege expired because the trial was over” and “argued attorney-client privilege had been waived by virtue of the affidavit attached to the petitioner’s fee motion.” Id. The trial court agreed with Ms. Butler and compelled discovery of the defendant’s litigation file which then led to the filing of a writ of certiorari.
On appeal, the First DCA noted that Ms. Butler “provides no authority or explanation to support her argument that the pleadings and discovery are insufficient to determine whether the offer was made in good faith” and noted that “many courts have relief on the pleadings and information obtained during discovery to determine whether an offer was made in good faith.” Id. Additionally, the Court recognized that “It is well-established that “work product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.”” Id. As for the attorney affidavit, the Court noted that it “did not discuss or disclose privileged communications between counsel and the client” and recognized that “the hours expended and rate charged by defense counsel is not information protected by either the attorney-client or work product privilege.” Id. citing Anderson Columbia v. Brown, 902 So.2d 838, 841-42 (Fla. 1st DCA 2005). Due to the foregoing, the First DCA granted defendant’s petition for writ of certiorari and quashed the order compelling discovery of the entire litigation file.