A significant shift in the law has just made it more difficult for the injured to get justice in Florida. The change occurred quietly when Florida's Third District Court of Appeal affirmed the dismissal of the personal injury case of Maria Franco Perez, a 26-year-old Miami woman who brought suit against her employer Bell South Telecommunications, alleging that her stress level at work caused her to give birth 20 weeks early.
Ms. Perez, diagnosed with a high-risk pregnancy with her first child, had been recommended by her obstetrician, Dr. Isidro Cardella, that she be given frequent bathroom breaks to accommodate her constellation of medical conditions. Bell South fired her for "nonperformance." Just two days after being terminated, she suffered a placental abruption and gave birth to Osmany Anthony Perez, 20 weeks prematurely.
Ms. Perez then sued Bell South. Dr. Cardella offered an opinion that the premature birth was caused by Ms. Perez's work related stress at Bell South. His opinion was based not upon any medical literature or studies, but rather on his education and his experience of more than 20 years of practicing obstetrics.
Personal injury cases are rooted in the use of expert witnesses. As a personal injury attorney in Miami, I frequently retain experts to testify on subjects ranging from how and why accidents occur, to the injuries themselves as well as for estimates of the future cost of medical care and lost wages. Likewise, the defense industry routinely hires its own experts to combat the plaintiff's experts' opinions -- leaving it, as it should be, to a jury to decide.
Last year, Florida's Legislature retooled Section 90.702 of the Florida Evidence Code, which formerly permitted an expert witness to testify on issues based upon the expert's pure opinion even though it may be unsupported by the scientific community, known as the Frye Standard. This standard had allowed juries to hear an expert's opinions as long as it was based upon the witness's experience and education.
Under the Frye Standard, Ms. Perez and other injured plaintiffs would have been allowed to at least get their cases beyond the trial judge and to a jury; thereby making it up to a jury, not a judge, to decide whether or not the opinions are credible. A jury would then be free either to accept or reject the opinion and return the appropriate verdict.
Florida's new version of the Evidence Code employs the Daubert Standard, which now requires that an expert's opinion be based upon "scientific knowledge" and derived from a "scientific method" to be admissible to a jury. In order to satisfy Daubert, an expert's testimony must now rely upon empirical testing and be systematically verified.
This change affects every pending case as well as all future cases in Florida by completely eliminating pure-opinion testimony. Now, an expert witness -- no matter how skilled, experienced or, as in the case of Dr. Cardella, how much first-hand knowledge they have of a particular patient -- will not be allowed to provide any opinion based testimony as to whether an event has caused an injury.
For example, In Ms. Perez's case, it would require that some kind of scientific study be performed and then verified in order to prove that stressing women with high-risk pregnancies at work can cause premature births.
In her case, since Dr. Cardella's proposed opinion was based solely upon his own experience and education rather than scientific analysis, the trial court struck down his opinion, leaving Ms. Perez without an expert and causing her case to be dismissed. Sadly, she and her injured baby will never see a jury. Read the 3rd District Court's opinion here.
Ms. Perez's case is a terrifying example of how a seemingly obscure change in the evidence code can create a seismic and profound change in the ability of those injured in Florida to obtain justice.