As all construction professionals involved in litigation are likely aware, in 2013, the Florida Evidence Code began mirroring the Supreme Court’s standard for admitting expert opinions as outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc.[i] After years of debate on whether Daubert or the longstanding Frye standard should dictate the admissibility of expert opinions, the Florida Supreme Court officially adopted Daubert in May 2019.[ii] Daubert requires expert testimony to be supported with scientific analysis rather than “pure opinion” testimony. The Florida Evidence Code interpreted Daubert to create three prongs for developing expert opinions that may assist a jury in understanding high-level issues:
- The expert’s testimony is based upon sufficient facts or data;
- The expert’s testimony is the product of reliable principles and methods; and
- The expert has applied the principles and methods reliably to the facts of the case.[iii]
Put another way, the Second District Court of Appeal of Florida previously held that an expert’s opinion should not be admissible where the relevant issues “are of such a character that they may be presumed to be within the common experience of all men moving in ordinary walks of life.”[iv] Thus, if common sense can comfortably dictate the outcome of a case, retaining an expert on behalf of your client is unnecessary. Yet, in construction, one can hardly argue that the proper installation of window flashing, electrical wiring, mechanical systems or stucco is within the common experience of all men. Having this professional experience, however, is not by itself sufficient to offer expert testimony in a construction defect case.
Arising out of a recent order from Hillsborough County, Florida’s interpretation of Daubert arguably now includes an unofficial fourth prong, requiring an expert’s evaluation to be at least partially based on their independent investigations. Meaning, saying that the other side performed an inadequate or biased investigation is not enough. This is not to say that a general contractor or subcontractor’s retained expert should set aside the original complaints and seek to identify defects beyond those alleged by a Plaintiff—in fact, that might constitute malpractice by the defense. Yet, to be safe, the expert should certainly do more than critique the methodology and investigations of a Plaintiff’s expert. Still, an expert’s own investigation may not always require separate testing than that conducted by a Plaintiff’s expert. Rather, if the opposing expert performs testing in a manner differently than your expert would in order to support his own opinions and professional reputation, then he or she should request to redo it before formulating independent opinions in writing or during a deposition.
How can attorneys ensure their consultants are properly equipped to meet this increasingly demanding Daubert standard? For one, ensure their experts (and insurance carriers) know of this change. More directly, some suggestions include:
- Continuously communicating the relevant allegations against the client for whom they were retained;
- Offering to discuss the testing to be performed by others and how it might differ from the expert’s preferred testing procedures;
- Allowing the expert to perform any separate testing they deem necessary;
- Notifying the expert of every relevant repair and emergency repair so they can determine whether observing them might add value to their own opinions;
- Ensuring the expert is aware of key discovery deadlines to avoid their inhibiting the expert’s preferred timeline and methodologies for formulating strong opinions; and
- Not shying away from requesting additional time for their experts to formulate strong opinions if necessary under the operative Case Management Order.
Moreover, if your expert can describe how additional time and testing would strengthen their opinions, you will want to make the Court aware of it before the issue is first raised in your expert’s deposition.
[i] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993).
[ii] In re Amendments to Florida Evidence Code, 278 So. 3d 551, 552 (Fla. 2019).
[iii] § 90.702, Florida Statues (2013).
[iv] Mills v. Redwing Carriers, Inc., 127 So.2d 453, 456 (Fla.2nd Dist. 1961).