The Florida evidentiary standard for opinion testimony has been interesting for the last few years. Readers are likely to be familiar by now with Daubert, Frye, and the distinctions in Florida between our Evidence Code and the Evidence Rules promulgated by the Florida Supreme Court. It is fair to say that this topic can be confusing. For background, see Daubert Better Explained, Daubert, We Hardly Knew Ye, and Daubert's New Day.
Recently, the Florida Fourth District Court of Appeal decided Kemp v. State of Florida, Case No. 4D15-3472 [July 31, 2019]. This is a criminal case that is worthy of a read for several reasons. Some will perhaps struggle with how a motor vehicle collision criminal prosecution would be related to workers' compensation, and that is nuanced. But, read on and learn more about the potential impact of Daubert on both evidence and the appellate process.
In the Florida appellate process, there are two steps to a court's decision. First is the decision of the court. That is the element with which most are familiar. The court either through a panel decision (three judges) or as a whole (en banc) will publish a written explanation of who prevails on the appeal and why. There is generally a period thereafter in which either party may seek "rehearing" or if the decision is a panel decision may seek "rehearing en banc." A party might also ask the court to "certify a question" essentially labeling some legal point as being "of great public importance" in hopes of invoking one of the Supreme Court's jurisdictions listed in the Florida Constitution (see The Supreme Court Again).
When the appellate court closes that period of potential, generally a "mandate" is issued. This second step is a direction to a lower tribunal regarding how it is to proceed in light of the court's opinion. The issuance of a mandate renders the appellate court's decision final and subject to the parties seeking further review from a higher court. But, even following the issuance of a mandate, a party might seek further review by the issuing court, see section 43.44, Fla. Stat. allowing recall of the mandate within a period not to exceed 120 days.
In Kemp, the Fourth District issued its latest decision on July 31, 2019. The essential dispute in this case revolves around a horrific motor vehicle accident in which the defendant's vehicle was on an interstate at a high rate of speed, estimated later as "about 128 mph." It exited, "sped down the exit ramp and ran the red light at the end of the ramp," and "crashed into the side of a Lexus sedan," killing five young people. Mr. Kemp was charged with vehicular manslaughter.
Mr. Kemp was alleged to have operated his vehicle in a reckless manner. A dispute arose as to whether he was "in control of the car at the time of the crash." Mr. Kemp claimed to have fainted at the wheel and alleged that he was therefore not in control. The State offered the testimony of a Florida Highway Patrol (FHP) Officer that Kemp "had applied the brakes before the crash." The implication is that the application of the brakes is a volitional action, showing consciousness and thus control. The Officer's testimony included opinions based on training and expertise in accident reconstruction. Those opinions are at the heart of the Daubert debate in this case.
Regular readers will recall that there is dissension between legislative and judicial branches in Florida. As such there is both an Evidence Code enacted by the legislature and evidence rules promulgated by the Florida Supreme Court ("FSC"). The absence of transparency in that posture is troubling to some, but it is the posture that we have. The Code is published for all to see, but understanding the distinctions of the rules requires legal research. The rules are not published in any concise and ready form. In a nutshell, here is the progression that ensued in Kemp:
April 13, 2013 Vehicle accident.
June 4, 2013, Daubert became the standard in the Evidence Code.
February 16, 2017, FSC rejects Daubert in Rules.
December 13, 2017 Kemp v. State decided by Fourth DCA.
October 15, 2018, FSC held Daubert adoption unconstitutional.
May 8, 2019, Kemp v. State again decided by Fourth DCA.
May 23, 2019, FSC adopts Daubert as Evidence Rule.
July 31, 2019, Kemp v. State again decided by Fourth DCA.
In its initial decision in December 2017, written by Judge May and concurred in by Judge Ciklin, the Fourth District Court affirmed the analysis of the trial judge. The Court concluded that the purpose of Daubert is for the trial judge to ensure "that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand." It held that in Kemp, "the trial court did just that."
Judge Taylor dissented. Judge Taylor wrote to explain that the trooper's opinions "amounted to little more than a subjective and unverifiable opinion and represents precisely the sort of junk science that should never be countenanced in a court of law." He concluded that therefore "the trial court abused its discretion in admitting unreliable expert witness testimony that did not meet the requirements of Daubert." At the time of this first opinion, the FSC had rejected Daubert, leaving Frye as the standard in the Florida evidence rules.
Thereafter, the Supreme Court was more critical of Daubert, concluding in December 2018 that its legislative adoption was violative of the Constitution. In so doing, the FWC specifically noted that the appropriate evidentiary standard in Florida would be Frye. Delisle v. Crane Co., 258 So.3d 1219 (Fla. 2018). That opinion includes a broad and extensive overview of the dichotomy between Florida's Evidence Code and rules, describing the historic actions of both legislative and judicial branch as regards evidence.
In its second decision in May 2019, written by Judge Taylor and concurred in by Judge Ciklin and Judge May, the Fourth District cited Delisle, and remanded the case for further proceedings. The Court noted that the Daubert analysis was applied at trial as that was the statutory Evidence Code at that time, not yet at that time addressed by the Supreme Court. It instructed the trial court to decide whether the Frye standard should be applied. Notably, the Frye standard does not apply to all opinion evidence, but only to scientific evidence that is "new or novel." And, if the trial court determined that the Frye standard was not applicable, then it was to determine if the Trooper's testimony was "pure opinion," in determining whether to admit it.
Thereafter, in May 2019, the FSC adopted Daubert. This is discussed more fully in Daubert's New Day.
The Fourth District's third opinion in Kemp was issued on July 31, 2019. This is written by Judge Taylor (who dissented in the initial decision). Judge Ciklin specially concurred, and Judge May dissented. The Court reversed the trial court's verdict and remanded the matter for a new trial. The testimony of the State Trooper was not demonstrated to "meet the requirements of Daubert v. Merrell Dow Pharmaceuticals." The conclusions regarding whether Mr. Kemp applied the brakes, demonstrating consciousness, were "not shown to be based upon sufficient facts or data, was not shown to be the product of reliable principles and methodology, and amounted to little more than a subjective and unverifiable opinion."
As a side note, the Court noted that the "parties (at trial) never challenged the constitutionality of the amended version of section 90.702 (Daubert) below" in Kemp. Thus, the application of that statute was appropriate for the trial court. It is incumbent upon the parties to object when they perceive an issue or problem with a law or its application. Failure to object can lead to waiver of any claim to relief based upon such application of the law.
The Court then explained Florida’s “pipeline rule.” Under this legal maxim, the “disposition of a case on appeal should be made in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered.” Citations omitted. In Kemp, the Court did precisely that, deciding three times as the law shifted beneath it. Upon that maxim, the Fourth District explained, the appropriate legal analysis in July 2019 is now the Daubert standard. Thus, potentially leaving a trial judge in a bit of a predicament. The trial judge must strive to apply the law as it then exists, with little or no sense or suggestion of where some future developments or appellate decisions might take the law.
Judge Ciklin concurred in July 2019 to "acknowledge the devastation suddenly inflicted upon the community" by the deaths in 2013. The opinion lists the five youths lost in the accident: "Orane O. Cummings, Shonteria Grimsley, Christina Oliver-Joseph, Makita Campbell, and Jason Alexander Mahlung." The judge noted, "a paramount issue in this appeal is whether five young people were tragically killed because of an unthinkable yet unavoidable human occurrence requiring legal absolution, or at the hands of a dangerously reckless driver who should rightfully be cloaked with a veil of criminality." Judge Ciklin's concurrence reminds us all of the simple truth that at the root of so much of the law there are humans and humanity.
Judge May dissented, citing Judge Learned Hand (an icon of American jurisprudence). Judge May analyzes the evidence code and the applicability of opinion evidence. The Judge concludes "There can be no doubt that Corporal Dooley was an expert in accident reconstruction." The Judge explained the record reflected that when objections were raised, "the court permitted voir dire" (an exploration of the basis and foundation of the opinions), that it "was extensive," including "many questions (by the judge) to fulfill his role as gatekeeper." Judge May concluded the trial judge fulfilled the spirit and letter of Daubert.
There are lessons in Kemp. First, and foremost, no one can predict how law may evolve or devolve. The trial judge is charged with the sometimes unenviable task of applying the existing law to the best of her or his ability. Despite herculean efforts, the trial judge may nonetheless fail, through lack of prescience and pure human nature.
Second, there will be differences of opinion in the law. Judges will disagree on how the law is adopted, applied, and interpreted. We will be imperfect in the process. That will be true at both the trial and appellate levels. Our task is to apply law to facts, and both may be subject to interpretation and personal human frailty.
Particularly in this regard, appellate courts will be indispensable. The community will rely upon those bodies to homogenize and standardize legal applications. Those bodies can do so from a distance (never meeting the parties to most cases), with much more time and deliberation than a trial judge may be able to muster. Appellate courts bring multiple perspectives, through a panel or en banc, and thereby collectively smooth the edges that our individualism may create or perpetuate.
Third, as Judge Ciklin reminds us, cases are about people. There are five dead from this accident, and he names them to remind us all. Mr. Kemp is no less a human being, no doubt profoundly affected by this accident. Sometimes we seem to forget that in all these cases there are real human beings, and they are being affected by the laws that our Legislature and courts provide us, and by the rulings trial judges are called upon to make. Trial judges must make the rulings, but perhaps we can strive to better explain them for the benefit of those people's understanding?
Finally, the impact of Daubert is not to be ignored. The applicability is perceived as broader by many. Frye was applicable to "new and novel," but Daubert perhaps to all opinions? Daubert requires more in terms of support or foundation for opinion from the perspective of many observers. It is expected that its implementation will change the standards to which opinion evidence must rise, it is practical to expect that outcomes may change, as it did repeatedly in Kemp as the Court struggled with its complexities.
Kemp's long history since 2013 now enters its next phase. A new trial will address the tragic loss of life in April 2013. Observers will note the conclusions above and perhaps will appreciate that the law is complex, evolving, and challenging even to the best and brightest in whom we entrust it. By this stage of the post, even the grumpy old men in the balcony will perhaps see the connections between this criminal prosecution and workers' compensation?
