197 So. 3d 1109
Fla. Dist. Ct. App.2016Background
- Plaintiff Simona Bunin filed a products-liability suit (filed 2009) alleging anosmia after using Zicam nasal spray.
- Defendants: Matrixx Initiatives, Inc., Zicam, LLC, and Publix Super Markets, Inc. moved to exclude plaintiff’s causation expert under Florida’s evidence law as amended in 2013.
- In 2013 Florida amended § 90.702 to adopt the federal Daubert standard for admissibility of expert testimony.
- Trial court granted defendants’ motion to exclude the expert’s causation opinion under the Daubert standard and entered summary judgment for defendants.
- Plaintiff appealed exclusion and summary judgment and challenged retroactive application of the 2013 amendment; defendants sought costs including counsel travel and expert fees.
- The Fourth District affirmed exclusion and summary judgment, but reversed part of the cost award (attorney travel and certain expert fees) and remanded to adjust the costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2013 amendment to Fla. Stat. § 90.702 (Daubert) applies retroactively | Amendment is substantive and should not apply to a 2009 case | Amendment is procedural/remedial and applies to pending cases | Applies retrospectively; amendment governs admissibility |
| Whether trial court abused discretion excluding plaintiff’s causation expert under Daubert | Expert’s opinion admissible under pre-amendment "pure opinion" rule (Marsh) | Expert’s methodology/opinion fails Daubert reliability and should be excluded | No abuse of discretion; exclusion proper under Daubert |
| Whether summary judgment valid after exclusion of causation testimony | Exclusion eliminated plaintiff’s proof of causation, but exclusion was improper so SJ should be reversed | Exclusion left plaintiff without admissible causation evidence, so SJ proper | Summary judgment affirmed because case depended on excluded expert testimony |
| Whether attorney travel expenses and certain expert fees are taxable costs | Such items were recoverable as costs | These items are not allowable under the Statewide Uniform Guidelines without specific findings | Reversed and remanded to remove attorney travel expenses and expert fees not for deposition, trial testimony, or court-ordered report; trial court must make required findings for any deviation |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (federal standard for admissibility of expert testimony)
- Booker v. Sumter Cty. Sheriff’s Office, 166 So. 3d 189 (Fla. 1st DCA 2015) (standard of review for expert-exclusion rulings)
- Bionetics Corp. v. Kenniasty, 69 So. 3d 943 (Fla. 2011) (retroactivity is question of law reviewed de novo)
- Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994) (procedural/remedial statutes apply retrospectively)
- Windom v. State, 656 So. 2d 432 (Fla. 1995) (statutes "relating to admission of evidence" are procedural)
- Perez v. Bell South Telecomms., Inc., 138 So. 3d 492 (Fla. 3d DCA 2014) (section 90.702 applies retrospectively)
- Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007) (Florida’s prior "pure opinion" rule for expert testimony)
- Rodrigo v. State Farm Fla. Ins. Co., 166 So. 3d 933 (Fla. 4th DCA 2015) (trial court must make specific findings to deviate from cost guidelines)
- Citizens Prop. Ins. Corp. v. Pulloquinga, 183 So. 3d 1134 (Fla. 3d DCA 2015) (counsel travel time and expenses not taxable costs under guidelines)