185 So. 3d 710
Fla. Dist. Ct. App.2016Background
- Plaintiff Enzo Rojas was a passenger injured when defendant Yagmerys Rodriguez’s vehicle struck his car; defendant admitted liability and trial focused on causation of plaintiff’s herniated disc.
- Plaintiff presented a neurosurgeon who testified that the herniation was consistent with the twisting described by plaintiff after the impact.
- Defense repeatedly objected at trial that the neurosurgeon was not an accident reconstructionist or biomechanical expert; those objections were overruled, and the defense moved for mistrial/new trial during and after trial but did not invoke Daubert until after the verdict.
- Jury awarded damages totaling $93,670.01; after verdict the defense filed a written motion raising Daubert for the first time and the trial court granted a new trial, excluding the neurosurgeon’s testimony as Daubert-inadmissible.
- The trial court relied on Perez v. BellSouth and found the neurosurgeon’s testimony central to the verdict; this appellate review considers whether the post-trial Daubert objection was timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a post-trial Daubert objection may justify exclusion of expert testimony and a new trial | Rojas argued defendant waived Daubert by failing to timely object or request a Daubert hearing despite prior disclosure of the expert | Rodriguez argued the neurosurgeon’s causation opinion was outside his expertise and was inadmissible under Daubert, entitling her to a new trial | The court held the Daubert objection was untimely; exclusion is a drastic remedy and, absent timely challenge or exceptional circumstances, the post-trial Daubert motion cannot support vacating the verdict |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (establishes trial-court gatekeeping role for expert admissibility)
- Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492 (Fla. 3d DCA 2014) (physician testimony found inadmissible under Daubert)
- Clair v. Perry, 66 So. 3d 1078 (Fla. 4th DCA 2011) (exclusion of witness testimony is a drastic remedy to be sparingly used)
- Booker v. Sumter Sheriff’s Office/N. Am. Risk Svcs., 166 So. 3d 189 (Fla. 4th DCA 2015) (challenging party must timely raise Daubert objection and request a hearing)
- Feliciano–Hill v. Principi, 439 F.3d 18 (1st Cir. 2006) (untimely Daubert challenges may be refused; parties must timely object so testimony can be evaluated)
- Alfred v. Caterpillar, Inc., 262 F.3d 1083 (10th Cir. 2001) (Daubert is a gatekeeping function; untimely motions considered only in rare circumstances)