Florida Daubert Objection Must Be Timely – Rojas v. Rodriguez

The standard for expert testimony is set forth in the case of Daubert v. Merrell Dow Pharmaceuticals, Inc.  To challenge the expert testimony of the other party, a party must timely raise a Daubert objection.  The trial court has a gatekeeper function regarding expert testimony and must be given the opportunity to make a determination on the admissibility of the evidence.

The Third District recently considered whether a trial court properly granted a mistrial in a case in which the defendant objected to the plaintiff’s expert testimony but failed to raise Daubert until after the jury returned the verdict.  In Rojas v. Rodriguez, the plaintiff was the passenger in a vehicle that was hit by the defendant’s vehicle.  The defendant conceded liability, but the case went to trial to determine if the plaintiff’s herniated disc was caused by the accident.

At trial, a neurosurgeon testified that the injury was consistent with the plaintiff’s testimony that his body twisted in the accident.  The defendant objected, arguing that the neurosurgeon’s testimony was outside his expertise.  The trial court overruled the objection.  The defendant later moved for a mistrial based on the neurosurgeon’s testimony, but he did not raise a Daubert objection.  The trial court also denied that motion.  The jury awarded the plaintiff past and future medical expenses and past and future pain and suffering.  After the verdict was delivered, the defendant renewed the motion but did not raise a Daubert objection.  The court requested a written motion, and in the written motion, the defendant again argued that the testimony was outside the neurosurgeon’s expertise.  The written motion was the first time the defendant raised Daubert. After a hearing, the trial court granted the motion.

The plaintiff appealed.  In an amended order, the trial court stated its findings that the testimony was outside the expertise of the neurosurgeon and therefore inadmissible under Daubert.  The order further stated that the plaintiff had not presented any other expert testimony regarding causation and that the testimony “was clearly central” to the verdict.

The issue before the appeals court was whether the Daubert objection was timely when it had not been raised until after trial.  The appeals court noted that excluding a witness is only appropriate when there are compelling circumstances.  The defendant had failed to raise the Daubert objection or request a hearing on the issue before the trial was finished.  The appeals court noted that the defendant knew that the neurosurgeon would be testifying several months before trial began, but he made no effort to find out the basis of that expert’s opinion.  The court further stated that it is the defendant’s responsibility to raise the issue to allow the trial court to perform its role as a “gatekeeper.”  The appeals court found that the Daubert objection was untimely, and there were no exceptional circumstances present.  The appeals court reversed and remanded, directing the trial court to reinstitute the verdict.

The expert’s testimony in this case was critical to the plaintiff’s success.  As the trial court noted, the only issues before the jury were causation and damages, and the plaintiff did not present another expert opinion on causation.  Since the objection was untimely, the appeals court did not address whether the expert’s testimony was admissible under Daubert, but the case illustrates the importance of having the right experts to testify when necessary.  Our automobile accident attorneys know when and how to use expert testimony to support a case.  Call Anidjar & Levine at (800) 747-3733, or submit an online contact form.

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