In June 2021, the Florida First District court published Huggins v. Siegel, 1D19-3987. As Florida's litigation process familiarizes with the Daubert standard for evidence. decisions like Huggins will be critical for practitioner clarity. Here, the Court strives to decide the case, a critical purpose of appellate law, but also strives to provide a broader context for those who will rely upon construing it in order to better construct the next argument, case, or appellate record. Daubert is not new to these pages, see Daubert Better Explained (May 2016); Daubert's New Day (May 2019); Daubert in the Courtroom (August 2019);
There are three critical points outlined by the Court in Huggins. The case revolves around allegations of mold in a rental property and a reasonably rare medical condition called renal agenesis, which occurs in approximately one-tenth of one percent of births (1 in 1,000), according to Healthline.
The Huggins were tenants in Siegel's property from 2015 through 2017. Early in that tenancy, from August 2015 into 2016, Ms. Huggins was pregnant. Ultrasounds during pregnancy confirmed the child was developing with two kidneys as expected. However, the child was born with only one. There were also allegations of brain injury to the child. After the child was born, the Huggins asked the landlord to test the premises for mold, and upon refusal "hired their own mold inspection company." Testing proved that in December 2017 "multiple mold types, including two toxic molds" were present.
The Huggins filed suit alleging that Siegel's negligence exposed Ms. Huggins to "dangerous mold during her pregnancy," which resulted in kidney and brain issues. They relied upon "a board-certified physician in reproductive endocrinology and infertility, obstetrics and gynecology" as an expert witness to support the causation connection between the mold and the birth-related issues. The physician was deposed in February 2019 in preparation for trial later that year. A pretrial scheduling order required that "all motions" in the case, specifically including "Daubert motions" had to be "heard and filed" before an October 22, 2019, pretrial conference.
When the expert was deposed, there was no objection based upon Daubert. In fact, that objection was first raised in September 2019 in a motion "to exclude" the expert's testimony shortly before trial. The trial judge agreed and excluded the evidence following Daubert. The Huggins argued that the motion was untimely, and that the objection should have been raised at the deposition or at least more rapidly thereafter. Notably, finding themselves on the eve of trial without an expert, the Huggins did not seek a continuance to prepare for trial with an alternative expert.
The appellate court affirmed the exclusion of the evidence from the Huggins' expert. There are three critical lessons in the Court's analysis.
First, the factual predicate (foundation) of the expert opinion was critically flawed. The only evidence that mold was present in this structure was from the testing performed in December 2017. The pregnancy was between August 2015 and early 2016. That mold was present two years later in 2017 was not proof that mold was present during the pregnancy. This illustrates a common hurdle in exposure cases, including workers' compensation occupational exposure and section 440.151, Fla. Stat. The presence of a substance must be proven, and the dose. This is also true in Florida workers' compensation. See Florida Occupational Disease Burden (December 2019).
The trial judge's decision to admit or exclude evidence is reviewed with the abuse of discretion standard; there is thereby deference to the trial judge's decision. In addition to the foundation challenges (when the mold was demonstrably present), the appellate court noted the Huggins' expert physician "was not qualified to testify on the issue of causation in this case." He had no background in cases of renal agenesis. When asked, the expert could produce no "scientific or medical literature directly linking aspergillus and penicillium to kidney disappearance in human beings." The Court affirmed that "he lacked the medical experience and education to testify about the cause" of the renal agenesis.
The appellate court also did not accept the argument that the September 2019 motion was too late. Certainly, there is an obligation for a party to raise timely objections. In Florida workers' compensation proceedings, this can be more critical than in the civil practice. It is very common in workers' compensation that deposition testimony from experts will be their only testimony. It is very rare a doctor will be subpoenaed for trial. Thus, it is often that a deposition is noticed for both discovery and trial testimony. Failure to raise an objection in that setting may very well create prejudice for the party taking the deposition, the party seeking to present it at trial.
In Florida, the standard for excluding evidence based upon a failure to object or upon late notice of some evidence is one of "actual prejudice." The party objecting cannot prevail in that argument just by saying that they are surprised or inconvenienced. A successful objection in that setting requires a demonstration of some actual harm that was caused. See Discretion and Prejudice (March 2019). The timeliness argument failed for the Huggins because the motion was made in accordance with the pretrial order.
The trial judge therefore rejected the timeliness argument and the appellate court agreed. It is important that such decisions by the trial judge are also reviewed with the "abuse of discretion" standard. Thus, an appellate court will only reverse such a decision if "the affected party can clearly show the abuse resulted in unfair prejudice.” Certainly, a trial judge may conclude that a Daubert objection is untimely. In this instance, the defense waited 230 days after the doctor's deposition. However, the trial judge was nonetheless within her/his discretion in concluding it was timely per the pretrial order.
Finally, trials are supposed to be decided on their merits. When a party finds itself surprised or prejudiced, the party should seek a path out of that prejudice. The court in this instance noted specifically that the Huggins "did not move for a continuance to acquire an expert to replace" the stricken expert testimony. Having made their arguments regarding the timeliness of the defense motion, and the competency of the testimony, the Huggins should have alternatively asked for the opportunity to remedy their prejudice with additional time. One might aptly note here that additional time might have done little to cure the chronological challenge of the pregnancy dates and the only mold test results in 2017; however, additional time with a different expert, a "mold expert," might nonetheless have yielded some results. The fact is that in the absence of the continuance motion, that will never be known.
Presented with scientific evidence and expert opinions, parties will face the potential of Daubert challenges. There is merit in remembering the potential for the timing of those motions to be critical. Substantively, parties have to remain conscious of the factual foundation upon which opinions rest as well as the qualifications of those who express them. Finally, parties confronted with their evidence being stricken are wise to seek continuance for the chance to remedy the prejudice from such an outcome and to reassess strategy. These challenges will be common in workers' compensation, due to the common inclusion of expert testimony in the various medical aspects of such claims. Huggins is critical reading for any who would litigate workers' compensation cases.
