Supreme Court Rules Frye Standard Applies to Florida Cases, Overturns District Court’s Decision Excluding Plaintiff’s Experts’ Causation Testimony Supreme Court of Florida, October 15, 2018
FLORIDA — The plaintiff Richard DeLisle filed a personal injury action against sixteen defendants, claiming that each caused him to be exposed to asbestos. Of the sixteen, DeLisle proceeded to trial against three: Crane, Lorillard Tobacco Co., and Hollingsworth and Vose (H&V). At trial, the plaintiff presented evidence that he was exposed to “Cranite” sheet gaskets containing chrysotile asbestos fibers and Kent cigarettes; the cigarettes were produced by Lorillard’s predecessor, and the filters were supplied by a former subsidiary of H&V. The filters contained crocidolite asbestos.
Lorillard contested the plaintiff’s use of Kent cigarettes, producing evidence from two of his high school friends who did not recall the plaintiff smoking and his ex-wife, who testified that he only smoked unfiltered cigarettes.
The parties “hotly disputed causation,” and even the plaintiff’s own experts did not agree on which products produced sufficient exposure to asbestos to constitute a substantial contributing factor to the plaintiff’s disease. Although all of the plaintiff’s experts agreed that the crocidolite asbestos in the Kent filters was a causative factor, they disagreed as to whether the other products were substantial contributing factors.
The plaintiff introduced causation expert opinions of Drs. Dahlgren, Millette, Crapo, and Rasmuson. Lorillard and H&V unsuccessfully moved to exclude their testimony under Daubert. Crane, Lorillard, H&V, and plaintiff all moved for directed verdicts. The court denied the motions, and determined that Brightwater, plaintiff’s former employer, and Owens-Corning, which manufactured asbestos-containing products that plaintiff worked with at Brightwater, should be included on the verdict form.
During the jury charge conference, Lorillard and H&V asked the trial court to instruct the jury on the threshold issue of whether the plaintiff ever smoked Kent cigarettes. The plaintiff opposed the instruction, and the court denied it, reasoning that the issue was “subsumed in the [standard] instruction.”
The jury found Crane, Lorillard, H&V, Brightwater, and Owens-Corning liable in varying percentages after three days of deliberation. Crane appealed the trial court’s denial of its motions for directed verdict and judgment notwithstanding the verdict and the trial court’s admission of expert causation testimony. R.J. Reynolds also appealed the admission of expert testimony and both parties appealed the award as excessive.
The Fourth District reviewed the admission of the testimony of the experts under Daubert and found that the trial court “failed to properly exercise its gatekeeping function as to Drs. Dahlgren, Crapo, and Rasmuson” The Fourth District reversed for a new trial for R.J. Reynolds and reversed and remanded for entry of a directed verdict for Crane. The plaintiff appealed to the Supreme Court.
After a lengthy discourse on the legislative and procedural history of expert challenges in the United States and Florida, the court determined that the Frye standard, not Daubert, “is the appropriate test in Florida courts.” “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.”
The court further opined that “Frye is inapplicable to the vast majority of cases because it applies only when experts render an opinion that is based upon new or novel scientific techniques.” Further, the court stated that “a trial court has broad discretion in determining the range of the subjects on which an expert can testify, and the trial judge’s ruling will be upheld absent a clear error.”
The expert testimony in the instant case was properly admitted and should not have been excluded by the Fourth District because “medical causation testimony is not new or novel and is not subject to Frye analysis. Further, the court previously recognized that “asbestos products have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others. Here, the trial court heeded our caution to ‘resist the temptation to usurp the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.”
The court quashed the Fourth District’s decision. “Furthermore, because the causation of mesothelioma is neither new nor novel, the trial court’s acceptance of the expert testimony was proper.” The court remanded to the Fourth District with instructions to remand to the trial court to reinstate the final judgment.