Opinion
No. 1D19-3987
09-15-2021
Jacqueline HUGGINS, individually, and with Alexander Huggins, as Mother and Father and Next Friends of A.R.H., a minor child, Appellants, v. Jeffrey SIEGEL, Appellee.
Jordan S. Redavid of Fischer Redavid PLLC, Hollywood, for Appellants. Rhonda B. Boggess of Marks Gray, P.A., Jacksonville, and Chandra L. Miller of Goodis Thompson & Miller, P.A., St. Petersburg, for Appellee.
Jordan S. Redavid of Fischer Redavid PLLC, Hollywood, for Appellants.
Rhonda B. Boggess of Marks Gray, P.A., Jacksonville, and Chandra L. Miller of Goodis Thompson & Miller, P.A., St. Petersburg, for Appellee.
ON MOTION FOR REHEARING, CLARIFICATION, AND CERTIFICATION
B.L. Thomas. J.
On consideration of Appellant's motion, this Court grants the motion for clarification, denies the motion for rehearing, withdraws the opinion filed June 3, 2021, and substitutes the following opinion in its place.
Appellants rented a house on Appellee's property from August 2015 through December 2017. Appellants complained about potential water intrusion and mold before moving into the home, and again in July or August of 2017. When Appellee refused to have the house inspected, Appellants hired their own mold inspection company. The inspection report indicated that multiple mold types, including two toxic molds—aspergillus and penicillium—were present in the home. After receiving the mold report, Appellants vacated the property.
Appellants alleged that Appellee's negligence as a landlord exposed Mrs. Huggins to dangerous mold while she was pregnant with one of Appellants' children. Throughout Mrs. Huggins's pregnancy, ultrasounds showed that the child was forming two kidneys, but when the child was born it had only one kidney, a condition known as renal agenesis. The child also exhibited signs of brain injury. The child's medical conditions caused Mrs. Huggins severe emotional distress.
Appellants retained a medical expert to testify about the issue of causation. Approximately a month before the pretrial conference, Appellee moved to exclude Appellants' expert's testimony. The trial court's pretrial scheduling order advised that all motions were to be heard and filed before the pretrial conference including motions in limine, objections to deposition exhibits, and ( Daubert ) motions.
Following a non-evidentiary hearing, the trial court granted Appellee's motion to exclude the expert testimony. The trial court rejected Appellants' argument that the motion was untimely because it was filed within the time allowed by the pretrial scheduling order. The trial court also found that the expert was not qualified to testify on causation and his testimony was neither reliable nor valid under Daubert . Following the trial court's ruling, Appellants did not move for a continuance to acquire a new expert or request another form of relief from the trial court.
Appellee moved for summary judgment on all remaining claims and Appellants conceded that without their expert's testimony they were unable to assert a genuine issue of material fact on the issue of causation. The trial court granted Appellee's motion for final summary judgment.
On appeal, Appellants challenge the trial court's decision granting Appellee's Daubert motion to exclude the testimony of Appellants' expert medical witness. Appellants challenge the timeliness of Appellee's Daubert motion, the proper standard of review for Daubert decisions, and whether the trial court properly excluded the expert's testimony.
Timeliness
Appellants argue that Appellee's Daubert challenge was not timely filed. The focus for determining whether a Daubert motion is untimely is on when the party became aware of the opposing party's expert's opinion. Booker v. Sumter Cnty. Sheriff's Office , 166 So. 3d 189, 192 (Fla. 1st DCA 2015). However, a trial court's enforcement of its own pretrial order is reviewed for an abuse of discretion "and reversal is appropriate only when the affected party can clearly show the abuse resulted in unfair prejudice ." Gutierrez v. Vargas , 239 So. 3d 615, 622 (Fla. 2018) (emphasis added).
Here, Appellee waited approximately 230 days after deposing Appellants' expert to challenge the expert's testimony, but he filed his Daubert motion approximately one month prior to the pretrial conference and within the time limitation established by the pretrial scheduling order. Additionally, the trial court held a non-evidentiary hearing addressing Appellee's Daubert motion approximately two weeks before the pretrial conference. Finally, following the trial court's ruling excluding the expert testimony, Appellants failed to move for a continuance or request another form of relief from the trial court. As a result, Appellants were unable to "clearly show" that the trial court's decision to follow its pretrial scheduling order unfairly prejudiced Appellants. See id.
Standard of Review
The standard of review for a trial court's Daubert decision is an abuse of discretion. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ("Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it ‘reviews[s] a trial court's decision to admit or exclude expert testimony.’ " (citations omitted)); see also Booker , 166 So. 3d at 194 n. 2 ); Baan v. Columbia Cnty. , 180 So. 3d 1127, 1131 (Fla. 1st DCA 2015) ; Hedvall v. State , 283 So. 3d 901, 911 (Fla. 3d DCA 2019) ; Bunin v. Matrixx Initiatives, Inc. , 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016). Additionally, Appellants' reply brief acknowledged that "to the extent the trial court ruled that [the expert] was unqualified, that decision should be reviewed for an abuse of discretion." This Court's decision only addresses the qualification prong of Daubert . Thus, as agreed upon by Appellants, the standard of review is abuse of discretion.
Application of Daubert to Expert Testimony
"Under Daubert , the trial court not only evaluates a putative expert's credentials, but also serves as a gatekeeper in ‘ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.’ " Baan , 180 So. 3d at 1133 (quoting Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ). Appellants' expert is a board certified, licensed physician in the specialty of obstetrics and gynecology and the subspecialties of reproductive endocrinology and embryology. However, Appellants retained him as their causation expert to testify that the mold in Appellee's rental home caused their child's renal agenesis and brain injury. Despite the expert's extensive medical resume, he was not qualified to testify as to causation because he lacked the experience and knowledge to connect the mold to the child's medical conditions. See White v. Ring Power Corp. , 261 So. 3d 689, 696–97 (Fla. 3d DCA 2018) (excluding expert witness testimony where none of the experts had ever interpreted crane-loading data or used such data to investigate the cause of a crane accident or wire rope failure).
Appellants' expert testified that he treated a patient with an unborn child with renal agenesis during his training, but his current practice specializes in infertility, and he does not typically treat patients like Mrs. Huggins. He testified that he has never been involved in cases involving the disappearance of a kidney in an unborn child, or cases where a kidney was observed but later disappeared before birth. Appellants' expert never attempted to link mold to unilateral renal agenesis before this case and he never presented on the topic of mold in the developing kidney. He admitted that he is not a mold expert and knowledge of mold growth is outside his specialty. Additionally, he was unable to find scientific or medical literature directly linking mold to kidney disappearance in humans.
A mold expert testified that he believed within a reasonable degree of scientific probability that mold existed in Appellants' home while the child was in utero, but he was unable to determine the quantity of mold that was present or whether the property would have passed a mold inspection. Thus, even if Appellants' medical expert had relied on the mold expert's report, which he did not, he did not have enough independent knowledge or additional expert information to determine whether the mold was the cause of the child's renal agenesis and brain injury. Because of the medical expert's lack of experience with mold and its ability to cause renal agenesis, he could only speculate on the issue of causation and his opinion was "a classic example of the common fallacy of assuming causality from temporal sequence." Perez v. Bell S. Telecomms., Inc. , 138 So. 3d 492, 499 (Fla. 3d DCA 2014). As a result, Appellants' medical expert was not qualified to testify regarding causation, despite the minimal qualifications needed under Daubert .
Appellant testified that he received no information reflecting the condition of the mold in the home during the pregnancy and when asked how he knew there was mold present during the relevant period he stated that he relied on basic knowledge and common sense that "mold doesn't grow overnight."
AFFIRMED .
Rowe, C.J., and M.K. Thomas, J., concur.
ON SECOND MOTION FOR REHEARING, CERTIFICATION, AND REHEARING EN BANC
B.L. THOMAS, J.
We deny Appellant's second Motion for Rehearing, Certification, and Rehearing En Banc, which addressed this Court's second opinion, granting Appellant's Motion for Clarification but denying Appellant's Motion for Rehearing. We write to address the improper filing of the second motion and the improper language used by Appellant's counsel in both motions.
I. Improper Filing
Florida Rule of Appellant Procedure 9.330(b) limits a party to one motion for rehearing, clarification, certification, or written opinion per order or decision of the court. However, there is an exception to this rule and a party may file a second motion for rehearing when a court issues a new opinion which changes the entire basis for the ruling of the first opinion. Dade Fed. Sav. & Loan Ass'n v. Smith , 403 So. 2d 995, 999 (Fla. 1st DCA 1981) ; DeBiasi v. Snaith , 732 So. 2d 14, 17 (Fla. 4th DCA 1999).
This Court denied Appellant's first motion for rehearing but granted Appellant's motion for clarification. Although this Court clarified its original opinion, it did not issue a new opinion changing the entire basis for the ruling of the original opinion. See Smith , 403 So. 2d at 999. Thus, Appellant's second motion for Rehearing, Certification, and Rehearing En Banc is not authorized under Rule 9.330(b) and is improper.
II. Improper Language
Recognizing the tragic nature of this case, we are nevertheless compelled to address some of the language used by Appellant's counsel in his motions for rehearing:
The Florida Code of Judicial Conduct further mandates that judges "should participate in establishing, maintaining, and enforcing high standards of conduct," "shall require order and decorum in proceedings before the judge," and shall require lawyers subject to their direction and control to be "patient, dignified, and courteous." Fla. Code Jud. Conduct, Canons 1, 3B(3), 3B(4).
5-H Corp. v. Padovano , 708 So. 2d 244, 246 (Fla. 1997).
Appellant's counsel's language does not rise to the level of vitriol and vituperation found in the motion at issue in 5-H Corp. Even so, some of counsel's statements in the motions for hearing are lacking in the patience, dignity, and courtesy contemplated under the canons and warrant discussion.
In both post-opinion motions, Appellant's counsel stated the following, regarding the exclusion of Appellant's expert witness: "The panel, as with the trial court, effectively punished A.R.H. for being a little girl with a legitimate birth defect only because her injuries are in an area of medicine and science not yet fully developed." (emphasis added). Of course, neither court did any such thing.
What this Court did was affirm a ruling by the Honorable Donna M. Keim excluding Appellant's witness under Daubert . Daubert v. Merrill Dow Pharms., Inc. , 509 U.S. 579 (1993). We addressed the merits of that ruling in our previous two opinions. We did not in any manner write to disparage or "punish" anyone. Appellant's counsel has chosen to disparage this Court and the trial court in an apparent attempt to shame both courts. The accusation that our Court and the trial court have punished a little girl with a birth defect is not "dignified [or] courteous." 5-H Corp. , 708 So. 2d at 246.
In responding to the rehearing motion, Appellee also recognized Appellant's counsel's "improper inflammatory language accusing the courts of punishing [the child] and stealing juries away from injured plaintiffs." We agree that this language is inflammatory and improper. See McDonnell v. Sanford Airport Auth. , 200 So. 3d 83, 85–86 (Fla. 5th DCA 2015) (holding that an appellate counsel's motion for rehearing did not alert the panel to some fact, precedent, or rule of law that the court overlooked; rather, it expressed displeasure with the court's ruling and attacked the trial judge, Appellee, opposing counsel, and the panel).
Words matter and words have definitions. The Oxford English Dictionary defines "punish," as "to cause (an offender) to suffer for an offense; to subject to judicial chastisement as retribution or requital, or a caution against further transgression; to inflict a penalty on." Punish , OXFORD ENGLISH DICTIONARY (2d ed. 1989). While Appellant's counsel attempted to diminish the accusation by using the modifier "effectively," counsel's statement clearly asserts that this Court and the trial court decided that a "little girl with a legitimate birth defect" should suffer and be chastised, because "medicine and science [were] not yet fully developed."
As the supreme court recognized in 5-H Corp. :
The very Oath of Admission into The Florida Bar requires applicants to solemnly swear to "maintain the respect due to Courts of Justice and Judicial Officers ... [and] abstain from all offensive personality," and the Preamble to the Rules of Professional Conduct in the Rules Regulating The Florida Bar likewise provides that "[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials." R. Regulating Fla. Bar Ch. 4.
5-H Corp. , 708 So. 2d at 246. This statement by Appellant's counsel did not demonstrate respect for the judges of this Court or the trial judge.
Advocates are expected and encouraged to zealously advocate for their clients. See R. Regulating Fla. Bar 4–Preamble. But this duty of zealous advocacy must be tempered with respect, courtesy, and decorum:
This Court has recognized that "ethical problems may arise from conflicts between a lawyer's responsibility to a client and the lawyer's special obligations to society and the legal system.... ‘Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.’ " Florida Bar v. Machin, 635 So.2d 938, 940 (Fla.1994) (quoting the Preamble to the Rules of Professional Conduct).
Certainly, the principles underlying the rules include basic fairness, respect for others, human dignity, and upholding the quality of justice. Zealous advocacy cannot be translated to mean win at all costs, and although the line may be difficult to establish, standards of good taste and professionalism must be maintained while we support and defend the role of counsel in proper advocacy.
The Fla. Bar v. Buckle , 771 So. 2d 1131, 1133–34 (Fla. 2000).
We cite 5-H Corp. and Buckle to educate and remind Appellant's counsel, and all counsel, of their obligations to maintain professionalism in addition to their duty to zealously advocate for their clients. The two duties are not mutually exclusive.
We deny Appellant's second Motion for Rehearing, Certification, and Rehearing En Banc as unauthorized. No further motions will be considered in this case.
ROWE, C.J., and M.K. THOMAS, J., concur.