A Post Trial Daubert V. Merrell Dow Pharmaceuticals, Inc. Motion Was Untimely Where Defendant Did Not Make Daubert Objection Until After Trial.

 

 

The defendant did not make a timely Daubert objection -  - to oppose a neurosurgeon's trial testimony opining plaintiff's herniated disc was caused by the accident, as outside his area of expertise. The motion was untimely, and could not support the grant of a new trial.

 

 The plaintiff was a passenger in an automobile that was struck by the defendant's vehicle. The defendant admitted liability and the case was tried on the issue of whether the plaintiff's herniated disc was caused by the accident. A neurosurgeon testified that the herniated disc was consistent with the twisting of the body that the plaintiff testified occurred when the vehicle spun after the impact. Defense counsel objected to the neurosurgeon's testimony on this point on the basis that “[i]t is outside of the scope of his expertise. He is not an accident reconstructionist, or a biomechanical expert.” The objection was overruled. After the plaintiff rested his case, the defense moved “for mistrial based upon [the neurosurgeon] testifying as an accident reconstructionist expert, or biomechanical engineer, as he didn't have any of those qualifications.” The trial court denied the motion. The defense renewed the motion before the jury returned.

 

 The jury returned a verdict for the plaintiff. The defendant then filed a “motion for mistrial/new trial and remittitur,” asserting that the neurosurgeon's testimony was outside his area of expertise and trial by ambush, and for the first time, raising Daubert.

 

 The trial court held a hearing and granted the motion with a citation to Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492 (Fla. 3d DCA 2014) (holding that a physician's proposed testimony was inadmissible under the Daubert test). The appeal hinged on whether the defendant's post-trial Daubert objection was timely so as to warrant the exclusion of the neurosurgeon's testimony. The court held that it was not. Under Florida law, “[e]xclusion of witness testimony . . . is a drastic remedy that should be invoked only under the most compelling circumstances.” Clair v. Perry, 66 So. 3d 1078, 1080 (Fla. 4th DCA 2011) (citation and quotations omitted). Although defendant argued post-trial and on appeal that the testimony was inadmissible under Daubert, and while the trial court based its ruling upon this alleged inadmissibility under Daubert, it is undisputed that the defendant failed to raise a Daubert objection or request a Daubert hearing prior to the conclusion of trial. That failure was fatal to the defendant's case, particularly in light of the fact that the defendant was on notice that the neurosurgeon would be an expert witness as early as December 11, 2013, when the plaintiff filed his expert witness list, over ten months before the October 27, 2014 start of trial. Despite this disclosure, the defendant took no steps to discover the basis of the neurosurgeon's opinion.