3d DCA Watch -- Frye vs. Daubert Day!

Do you spend hours debating the relative merits of Frye vs. Daubert?

Or are you just interested in a big fat Venetian Salami?

 Either way you are a policy wonk and will therefore love Judge Shepherd's analysis of the differences in today's 3d DCA Watch:

Perez v. BellSouth:

Opinion in a nutshell -- using either test the plaintiff's expert was excludable:
Osmany Anthony Perez, a minor, by and through his mother and next friend, Maria Franco Perez, appeals an adverse summary judgment in a negligence case rendered after the trial court struck the only medical expert testimony linking his premature birth, resulting surgeries, and developmental deficits to workplace stress. The workplace stress arose from the alleged failure of Maria’s employer, Bell South Telecommunications, Inc., to limit her work hours to forty hours a week and allow frequent bathroom breaks. The trial court found the testimony to be inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since then, the Florida Legislature has amended the Florida Evidence Code to employ the United States Supreme Court’s more recently promulgated “Daubert test,” to gauge the admissibility of expert testimony in the stead of the older “Frye test.” After obtaining supplemental briefing from the parties on the applicability of the Daubert test to the facts of this case, we find affirmance would be in order under either the former or more recently adopted statutory test.
Plus a little philosophy lesson:
Dr. Cardella’s proposed testimony is inadmissible under Daubert. Dr. Cardella had never before related a placental abruption to workplace stress and knew of no one who had. There is no scientific support for his opinion. The opinion he proffers is a classic example of the common fallacy of assuming causality from temporal sequence.
Question -- can pundits and politicians be excluded from my TV on the same grounds?

Du Pont v. Sidran:

They say justice should be swift and sure, but this case has been pending since 1992!

So twenty-two years later, there has been a development:
The order on appeal is therefore reversed and the cause remanded for an expedited trial on the merits of the plaintiffs’ claims with no further amendments and no additional discovery to be permitted.

I'm waiting for the 25th anniversary!


  1. The opinion says the Daubert statute applies retroactively because it is procedural. But if it's procedural, only the Supreme Court, not the legislature, has the power to enact it, so the legislature has violated the separation of powers

  2. Judge Donner got reversed. Huh. Curious, I looked up her bio at Broad and Cassell. She looks good and I see nobody dropped a house on her yet.

  3. Great logo, SFL. Daubert Uncensored. Love that.

  4. All that juicy discussion in the DuPont opinion, with explitives and all, and the only thing you got out of it SFL was that the case is 22 years old? I know you can do better than that...

  5. Donner got destroyed in that opinion.

  6. The conduct of the Sidran's attorney (described in pp 37-42 of the opinion) is incredible. What does one actually have to do to get disbarred in this state?

  7. That's fair. I was a bit pressed for time. Where to start?

  8. I've reached a decision:

    no more holding back on the You Tube videos.

    It's time to get real y'all.

  9. I'm with 2:43 from April 23, 2014. How is that guy not disbarred? How are assault, battery, and threats of shooting opposing counsel worthy of only a 60-day suspension? I understand he was never disciplined before, but do you really need prior warning that threatening to shoot opposing counsel violated the canons of professional conduct? Or that running after opposing counsel, while threatening to pummel her, is also unbecoming?


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