SIMONA BUNIN, APPELLANT,
v.
MATRIXX INITIATIVES, INC., A DELAWARE CORPORATION F/K/A GUMTECH INTERNATIONAL, INC., A FOREIGN CORPORATION, AND ZICAM, LLC, A LIMITED LIABILITY CORPORATION F/K/A GEL TECH, LLC, AN ARIZONA LIMITED LIABILITY COMPANY, AND PUBLIX SUPER MARKETS, INC., A FLORIDA CORPORATION, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court did not abuse its discretion in excluding the plaintiff's expert causation testimony under the Daubert standard as applied by the amended statute, but reversed the cost judgment regarding attorney travel expenses and certain expert fees.
[1] Statutes relating to the admission of evidence are generally considered procedural and apply retrospectively to pending cases.
[2] Florida's 2013 amendment to section 90.702, requiring the application of the Daubert standard for expert testimony, applies retrospectively.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligencePlaintiff sued for anosmia after using Zicam nasal spray, and her expert's causation testimony was excluded under the Daubert standard. The trial cour…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Statewide Uniform Guidelines cases and more on FLexlaw
In this products liability action, the plaintiff alleged she lost her sense of smell, a condition known as anosmia, after she used a Zicam nasal spray. The defendants moved to exclude the opinion of the plaintiffs causation expert, based on the recent change to section 90.702, Florida Statutes (2013), which now requires trial courts to apply the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in ruling on the admissibility of expert testimony. The trial court granted the defendants’ motion and entered summary judgment in favor of the defendants. We affirm the summary judgment, concluding that the trial court did not abuse its discretion in excluding the causation testimony under section 90.702, Florida Statutes (2013). However, we reverse the cost judgment to the extent it awarded attorney travel expenses, and expert fees that were not for a deposition, trial testimony, or a court-ordered report.
An order on a motion to exclude expert testimony is reviewed for an abuse of discretion. Booker v. Sumter Cty. Sheriff’s Office, 166 So.3d 189, 194 n. 2 (Fla. 1st DCA 2015). But the issue of whether a statute applies retroactively is a question of law reviewed de novo. Bionetics Corp. v. Kenniasty, 69 So.3d 943, 947 (Fla.2011).
In 2013, the Florida Legislature amended section 90.702 with the intent to adopt the federal Daubert standard for the admission of expert testimony. See Ch. 2013-107, § 1, Laws of Fla. (2013). On appeal, the plaintiffs primaiy argument is that the 2013 amendments to section 90.702 are substantive in nature and should not be applied retroactively to her case, which was filed in 2009. We disagree.
It is well-settled that “[pjroce-dural or remedial statutes ... are to be applied retrospectively and are to be applied to pending cases.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). A statute that merely “relates to the admission of evidence” is generally considered procedural. Windom v. State, 656 So.2d 432, 439 (Fla.1995). Accordingly, as the Third District has explained, “section 90.702 of the Florida Evidence Code indisputably applies retrospectively.” Perez v. Bell South Telecomms., Inc., 138 So.3d 492, 498 (Fla. 3rd DCA 2014).1
Having carefully reviewed the record, we conclude that the trial court did not abuse its discretion in excluding the plaintiffs expert’s causation opinion under Daubert, even though the expert’s opinion would have been admissible under the “pure opinion” rule of Marsh v. Valyou, 977 So.2d 543, 548-50 (Fla.2007). Because the plaintiffs case depended upon her expert’s excluded causation testimony, the summary judgment in favor of the defendants must stand.
Turning to the plaintiffs appeal of the cost judgment, we reverse the award of costs to the extent it awarded attorney travel expenses and the fees of the defense expert, Dr. Brent. These costs were not costs that “should be” or “may be” taxed under the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, and the trial court failed to make any specific findings in the cost judgment as to the unique and extraordinary circumstances that would justify a deviation from the guidelines. See Rodrigo v. State Farm Fla. Ins. Co., 166 So.3d 933, 934 (Fla. 4th DCA 2015) (When deviating from the *1111guidelines, the trial court is “required to make specific findings as to the unique and extraordinary circumstances justifying such an award.”).
From the face of the cost judgment (including the exhibit incorporated by reference), it is clear that the defendants’ counsel’s travel expenses should not have been awarded. See Citizens Prop. Ins. Corp. v. Pulloquinga, 183 So.3d 1134, 1138 (Fla. 3d DCA 2015) (holding that the trial court improperly awarded counsel’s travel time and travel expenses as costs in contravention to the guidelines). Likewise, under the guidelines, Dr. Brent’s time did not qualify as a cost that “should be taxed,” because his fees were not for a deposition, trial testimony, or a court-ordered report. Nor did his fees fall under the category of costs that “may be taxed” under the guidelines. Therefore, we reverse the award of costs for attorney travel expenses and for Dr. Brent’s fees, and remand for the trial court to eliminate those expenses from the cost judgment.
Affirmed in case no. ¿D14-8579; Reversed and Remanded in case no. ffDl5-86.
CIKLIN, C.J., and MAY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Crane Co. v. DeLISLE, 206 So. 3d 94 (Fla. 4th DCA 2016)…are to be given effect until declared otherwise. Mallory v. State, 866 So. 2d 127, 128 (Fla. 4th DCA 2004). Further, we, and other Florida appellate courts, have applied the statute to the admission of testimony. Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109 (Fla. 4th DCA 2016); Booker v. Sumter Cty. Sheriff s Office/N. Am. Risk Servs., 166 So. 3d 189 (Fla. 1st DCA 2015); Perez v. Bell S. Telecommunications, Inc., 138 So. 3d 492 (Fla. 3d DCA 2014); R.C. v. State, 192 So. 3d 606 (Fla. 2d DCA 2016). We th…
-
State Farm Mut. Auto. Ins. Co. v. Nob Hill Family Chiropractic, 328 So. 3d 1 (Fla. 4th DCA 2021)
-
CID Torrez v. State, 294 So. 3d 390 (Fla. 4th DCA 2020)…DCA 2004). A. Admissibility under section 90.702 Section 90.702, Florida Statutes codifies the Daubert standard found in Federal Rule of Evidence 702 and governs the admissibility of expert testimony. See Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016). In Daubert, the United States Supreme Court charged trial courts with assuming the role of gatekeeper and making a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientific…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Daubert et ux. v. Merrell Dow Pharms., Inc., 509 U.S. 579 (U.S. 1993)
- Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994)
- Windom v. State, 656 So. 2d 432 (Fla. 1995)
- Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)
- The Bionetics Corp. v. Kenniasty, 69 So. 3d 943 (Fla. 2011)
- Osmany Anthony Perez v. Bell S. Telecomms., Inc., 138 So. 3d 492 (Fla. 3d DCA 2014)
- Booker v. Sumter Cnty. Sheriff's Office/North Am. Risk Servs., 166 So. 3d 189 (Fla. 1st DCA 2015)
- Wright v. State, 166 So. 3d 189 (Fla. 1st DCA 2015)
- Citizens Prop. Ins. Corp. v. Pulloquinga, 183 So. 3d 1134 (Fla. 3d DCA 2015)
- Rodrigo v. State Farm Fla. Ins. Co., 166 So. 3d 933 (Fla. 4th DCA 2015)