Application of Frye Test to Determine Admissibility of Expert

David Adelstein | Florida Construction Legal Updates | February 2, 2019

Florida went back to the Frye test/standard, instead of the Daubert test utilized in federal court, to determine the admissibility of expert testimony.  The Frye test is more favorable to plaintiffs because it applies when an expert renders an opinion based on new or novel scientific principles.  See D.R. Horton, Inc. v.  Heron’s Landing Condominium Ass’n of Jacksonville, Inc., 44 Fla.L.Weekly D109b (Fla. 1st DCA 2018) (“The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where the experts in the field widely share the view that the results are scientifically reliable as accurate. Stated differently, under Frye, the proponent of the evidence has the burden of establishing by a preponderance of the evidence with the general acceptance of the underlying scientific principles and methodology.  However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific principles.”). 

In D.R. Horton, Inc., a condominium association sued the developer and general contractor (same entity) for construction defects that included claims in negligence, violation of building code, and breach of statutory warranties.  The developer/general contractor moved in limine / to strike the association’s experts under, at the time, a Daubert analysis, but which became a Frye analysis during the pendency of the appeal.  The expert opined as to construction defects and damage and the appropriate repairs – really, no different than any construction defect dispute, from what it appeared. The trial court denied the motion and during trial the experts testified and a sizable damages judgment was entered against the developer/contractor prompting the appeal.  One issue on appeal was the admissibility of the expert’s opinion.  The appellate court noted that a Frye analysis is not necessary because the experts used a scientifically reliable and peer-reviewed methodology.  

A smart tactic, and I mean SMART tactic, that the association’s counsel seemed to utilize was to engage a third-party engineer to testify during a hearing that the methodology used by the association’s experts was industry standard methodology and generally accepted. Thus, the opinions were not based on new or novel scientific principles and the appellate court affirmed the trial court’s denial of the contractor/developer’s motion in limine.

Deposition Preparation

Robert J. Franco | Franco Moroney Buenik

Depositions are probably the worst experience faced by those in the construction industry. Apart from the annoyance and distraction, people do not like sitting in an office answering questions.

A deposition is a formal legal proceeding. It is neither a “statement,” nor an “interview.” Before the deposition begins, you will be sworn to tell the truth by the court reporter, who is a notary public authorized to administer oaths.

One or more of the other lawyers in the case has requested your deposition. The typical purpose for taking a deposition are: 1) to prove something through the witness’ testimony; 2) to evaluate the opposing party as regards his credibility, appearance and demeanor; 3) to educate oneself about the opposing party’s position on the facts; and 4) to lay a foundation for impeachment at trial. The last item requires some explanation.

If you answer a certain question in a certain way at your deposition, you will be expected to answer it the same way at the trial. If you do not, the jury will probably conclude: 1) that you lied during the deposition, 2) you are lying at trial, or 3) you are not a reliable witness because you “changed your story” from one time to another. Therefore, you must take great care to ensure that each answer you give is accurate, since you will have committed to that answer, right or wrong. However, if you realize during the deposition that any answer you have given is inaccurate, correct the error immediately. If you realize an error after the deposition has been completed, you should notify your lawyer immediately.

The deposition proceeds on questions and answers. After you are sworn, one of the other attorneys, usually opposing counsel, will begin to ask you questions. After he has completed his questioning, each of the other attorneys in attendance is entitled to question you as well. After all the attorneys have finished their questions, the deposition is concluded. Thereafter, the court reporter, with the aid of a computer, will have all of the questions and answers transcribed into a booklet or transcript. The attorneys usually do purchase copies of the deposition transcript for their own use. Your attorney will likely purchase a copy of your deposition transcript and will make it available to you.

Your deposition will probably be taken in the conference room or library of the office of one of the attorneys who are involved in the lawsuit. The people who are usually present during the deposition are the witness, the court reporter and the attorneys for all the parties. Anyone who is a party to the lawsuit is also entitled to be present, but is not required to be there. People who may be called to testify at trial who are not parties are generally not entitled to be present. If for any reason you would like for someone to be in attendance with you at the deposition in addition to me, advise your lawyer as this can often be arranged by agreement.

If any special preparation for the deposition is required other than a pre-deposition conference, your lawyer will advise you. Aside from this, the best preparation for your deposition is to relax, avoiding undue tension or anxiety about the deposition procedure.


The following advice is usually helpful to people who are about to give a deposition. This is general advice and is not tailored to apply to you or your case in particular. If there is something special about you or your case that requires attention, your lawyer will address this in the pre-deposition conference, where he will discuss the facts of your case and your anticipated testimony.


    You will be under oath and legally required to tell the truth. If you do otherwise, you will be guilty of perjury, which is a felony criminal offense. If you lie, this will probably be exposed by adverse counsel and the results will be disastrous for you. Moreover, telling the truth will relax you by making you comfortable in your testimony.

    If for any reason you do not understand the question, do not answer it. When confronted by a question you do not understand, you should say: “I do not understand the question,” or “Your question is too vague (or unclear, or ambiguous, or broad),” or “Your question is too long and complicated,” or “I don’t understand the words you are using,” or whatever similar response is appropriate under the circumstances. The lawyer will explain the question or rephrase the question as many times as necessary until you understand the question. You should never be embarrassed about having to respond to a question in this way.

    Once you answer the question, it will be assumed that you understood it. If you did not understand the question, it is inevitable that your answer will be wrong. When opposing counsel demonstrates at trial that the answer you gave during the deposition was wrong, as he probably will, your credibility will suffer.

    As part of this, you should seek to avoid overly broad questions, such as “tell me what happened here.” Do not be afraid of asking the questioning attorney what he means, to clarify his questions, or to break-up a compound or two-part question. Make the lawyer ask specific questions, and do not answer anything other than what is asked. Do not speculate what the interrogator is seeking. If you listen to the precise question being asked, and only listen to that question, you will be better served.

    Beware of questions which are stated in a strange manner. Consider the following: “Isn’t it true that you are not an OSHA trained safety inspector?” If it is true that you are not OSHA trained, is the answer “yes” (meaning you are not OSHA trained) or “no” (it is not true that you are not, not OSHA trained). In such instances, do not be afraid to clarify the question.

    At trial, if you are evasive, the jury will probably conclude that you have something to hide, or that you are fearful that direct answer to the question will prejudice you. Evasion equates with cunning or deceptiveness in the minds of most jurors. By contrast, direct answers, even those that may involve some sort of an admission on your part, will give the jury the impression that you are an honest, candid and fair person. The jury’s perception of you will almost certainly have an effect on the outcome of the case.

    In most states, the only portion of your deposition which may be read to a jury is that testimony which is inconsistent with your trial testimony. With respect to direct answers, be advised that they make for very good impeachment. Narrative answers make for limited impeachment.

    Assume for example that a witness is testifying in a construction case involving a crane cable which broke due to overloading. Consider the impeachment effect of the different responses:

    Question: Isn’t it true that the cable failed due to your company overloading the crane, which caused the load to fall.

    Answer: Yes.

    As you can see, this response is very direct, and does not allow the witness any latitude. It admits to overloading and causation. Certainly, any attempt to retreat from this response at trial will subject the witness to excruciating impeachment. Instead, consider the following:

    Question: Isn’t it true that the cable failed due to your company overloading the crane, which caused the load to fall.

    Answer: Actually, the crane was not ours, but was leased from a different company which knew about the excessive live load on the crane, we did not actually know that information.

    The answers are similar, but the answers are stated much differently: the first answer having a far greater impeachment value. The second answer gives the witness latitude. Remember, short “yes” or “no” answers tie down the witness. Narrative responses do not. Yes or no answers should be avoided, as they provide for tight impeachment. Do not let a lawyer goad or intimidate you into making a “yes” or “no” answer. Answer the question asked in a short narrative.

    Always give the shortest and most direct answer possible that is truthful and accurate. Do not add anything, even if you think that doing so will be helpful to you position. Keep in mind that one of the reasons that opposing counsel is taking your deposition is to educate himself regarding your knowledge of the facts pertaining to the matters in dispute. Everything he learns at the deposition helps him prepare for trial, which information he will use against you.
    Therefore, you should make the lawyer earn the information he receives by requiring him to ask for information before you provide it to him.

    Your deposition will probably be your first opportunity to meet and confront opposing counsel. It is a natural human tendency to seek to convince the attorney for your adversary that your position is correct and his is incorrect. Therefore, you will have a natural tendency to volunteer information that you think is favorable to you in an effort to convince the attorney of the correctness of your position. However, the lawyer’s job is not to judge the merits of the controversy, but rather to advance the interests of his client. Therefore, no amount of persuasion by you will dissuade opposing counsel from his task. By telling him much about your position or your recollection, whether he asks you about them or not, will help him prepare to attack those points at the time of trial. If the interrogating attorney fails to ask you something that is important and, therefore, fails to find out about it prior to trial, your interests are advanced.

    Remember that the deposition should be cross-examination, where the answer is suggested. This represents adverse counsel’s opportunity to bring out the facts that are favorable to his side of the case. Do not be frustrated that you are seemingly deprived of an opportunity to talk about the things that are favorable to you. At the trial, you will have a full opportunity to tell your side of the story in answer to the direct examination by your own lawyer. You cannot and will not win your case at your deposition. However, you can lose your case at your deposition by volunteering information. DO NOT EDUCATE THE OPPOSING LAWYER.
  5. BE BRIEF.

    While your responses should be brief, the longer your answer, the more you will tend to volunteer information or say something that is likely to damage your position. However, do not sacrifice truthfulness or accuracy for brevity.

    A deposition transcript cannot measure time. Therefore, do not be concerned with taking your time in answering. Once the deposition is over, the transcript will not reflect the delay. However, this is not the case in video depositions where delays are recorded.

    In order to operate efficiently, our legal system must rely on facts, not guesswork. If you attempt to guess, your answer will almost certainly be wrong. Many times, a lawyer will ask a question already knowing the answer, hoping to trap you with an incorrect answer. If you guess, you will be accommodating him. By prodding you to give an answer that is nothing more than a guess, the lawyer will be in a position to discredit your entire testimony by proving that your answers were clearly wrong.

    Do not be embarrassed to say that you do not know or do not remember something. You are not required to know or remember any particular thing about your case. Do not let opposing counsel coerce you into guessing about something by acting as if it is incredible that you do not know or remember it.

    If a particular fact is important, remember that it can probably be proved through the testimony of some other witness, or by a document, or some other form of tangible evidence. Your testimony is only one part of the mosaic that will be assembled at the trial. It is not necessary, therefore, for you to know or remember everything that is pertinent to your case.

    Do not start the answer to any question with the words “I guess” or “I assume.” If you are guessing or assuming, you should be saying “I don’t know,” or “I don’t remember.” Do not assume or presume anything. Stick to the facts and let the jury supply the assumptions and presumptions.

    When the lawsuit involves a dynamic transaction, such as an automobile accident, there will inevitably be questions about your estimates of such matters as speed of the vehicles at various times, the time that elapsed between one event and another, the distance that a vehicle covered in a particular time frame, and the locations of various vehicles and other objects at various times. For some reason, people are particularly prone to guess about these things when they really have absolutely no basis for that testimony.

    Time lapses cause the most problems because people tend to grossly over-estimate time, speed and distance. For instance, witnesses will often say that they sat at a red light for five minutes. This is usually impossible. No traffic signal that is working properly will display a continuous red signal for more than about two minutes. Likewise, when asked a question such as “How long was it from the time you saw the other vehicle until the time of the collision?” people will sometimes respond “Thirty seconds,” or even “One minute.” It is rare that the correct answer to such a question will be more than a few seconds. Therefore, on any question involving a time, speed, distance, or location, you should be particularly cautious that your answer is an estimate and not a guess.

    If you allow yourself to become upset at your deposition, or if you argue with the opposing lawyer, you will focus more on jousting with the opposing lawyer than on the accuracy of your answer. The result will be that your answer will be imprecise, and may be a response that you later regret. Too, lawyers will often bait witnesses, as if they can rile you in a deposition, they believe they will attack and rile you at trial.

    In addition, lawyers generally write reports that summarize witness testimony. Included is a witness evaluation. If you make a poor witness, that will depreciate the effect and impact of your testimony, and will affect the settlement value of the case.

    A fact is something you know based upon personal, first-hand experience. A conclusion is something you have figured out based upon the factual knowledge which you have assembled. You should testify about the former, but you should avoid the latter. The reason for this is that there is a relatively large margin for error in any conclusion, since it is based on less-than-perfect personal knowledge about the facts. Although you may know certain facts that seem to lead to a particular conclusion, other witnesses may know many other facts which, when added to the facts you know, might lead to a completely different conclusion. If you testify to a conclusion you have drawn and it seems to be inconsistent with facts testified to by other witnesses who the jury chooses to believe, then your conclusion will be discredited and the accuracy of your entire testimony will be subject to doubt. You should restrict your testimony to facts about which you have personal knowledge and let the jury draw its own conclusions from all the testimony they hear.
    The purpose of a non-expert deposition is to discover facts, not conclusions or opinions.

    With certain limitations, all witnesses are permitted to testify about their opinions. However, you generally should not have or give an opinion unless you are an expert. It is much easier for a lawyer to attack opinion testimony than factual testimony. Therefore, you should be even more reluctant to volunteer your opinion than to volunteer facts.

    When you are asked for an opinion, the first decision you have to make is whether or not you have an opinion at all. You are not required to have an opinion about anything. If you do not have an opinion regarding the matter about which you are being asked, simply respond by saying that you do not have an opinion. It is difficult to form a reliable opinion on the spur of the moment during a deposition, when conditions are not usually ideal for a calm thought and deliberation. Therefore, do not be embarrassed to say that you do not have an opinion about something.

    If you do choose to express an opinion, or are an expert, pause briefly to think about the matter and assure yourself that the opinion you are about to give will be reliable and defensible. In order to be reliable, an opinion must be based upon:

    1) Adequate, detailed factual information, and

    2) Adequate education, training and/or experience in the area under discussion.

    If either one of these elements is lacking, you cannot express a reliable opinion and should decline to express one. The first part of this test is particularly important as regards hypothetical opinion questions. If you are asked to express an opinion based upon hypothetical facts, the first question you should ask yourself is whether you have been given sufficient factual information in the question to enable you to give a reliable opinion. If you give an opinion based upon broad, vague hypothetical facts, you will be making a great mistake. When confronted by a questions asking for your opinion, you may respond that you do not have an opinion if that is accurate. The question may not contain enough factual information for you to be able to base a reliable opinion on the facts at hand. The interrogating lawyer may then add additional hypothetical facts to his question. These additional facts may or may not make it possible for you to give an opinion. However, you should not be goaded into stating an opinion when you do not have an opinion.

    With respect to documents, do not interpret the writings of other people. You are incompetent to do so. However, you may be called upon to interpret your own writings.

    If opposing counsel can persuade you to agree that any particular work is “authoritative,” then he will be entitled to quote passages from it under the guise of asking you if you agree with those passages. What the lawyer is really doing, however, is reading to the jury out of the book in the hope that the jury will believe the statements contained therein. Of course, these quotations, taken out of context, will seem to support his position and to be contrary to yours. Unless the opposing lawyer can persuade you or some other witness who is knowledgeable in the topic at hand that the work is “authoritative,” he cannot proceed to read passages from the book. Therefore, you should never agree that any particular publication is “authoritative” unless you are thoroughly familiar with it and agree with virtually everything in it. Otherwise, you should say that you do not regard the work as “authoritative,” or are unable to make that statement.

    You should assume that you are being asked for your knowledge of the facts based upon personal, first-hand information, unless the question makes it obvious that you are being asked for second-hand information. For example, if you are asked what time of the day a particular automobile accident happened and you were not present when it happened, but you have read the police accident report which indicates that it happened at 2:00 p.m., do not give as your answer “2:00 p.m.” Rather, you should say “All I know about that is what I have read,” or “All I know about that is what I have been told.” If the lawyer then wants to pursue the matter, he will ask you what you have read or what you have heard. If you volunteer that information in the first instance, you are implying that you have personal knowledge about the matter under inquiry when you do not. This would be misleading; unnecessarily risking your credibility, since second-hand information often turns out to be wrong. If the second-hand information indeed is wrong, your testimony will have been erroneous.


    If you need to speak with your lawyer, request a break. This is permissible, and is better than venturing into uncharted waters. Sometimes, the opposing lawyer will attempt to intimidate you by stating something to the effect that: “Let the record reflect that counsel and his client are meeting in the hall to discuss their answer to my last question.” However, that statement is not admissible, and will not come into evidence. It is an intimidation ploy, and cannot be used to prejudice you at trial.

    Generally speaking, the law permits opposing counsel great latitude in his cross-examination during a deposition. He is not required to confine his questions to those matters which are strictly relevant to the issues in the lawsuit. Anything that is “reasonably calculated to lead to the discovery of admissible evidence” is fair game during your deposition.

    The decision as to whether or not a particular question is proper is not yours, but rather is for the judge to decide. Therefore, you should not respond to a question by saying that you refuse to answer it, or that it is none of counsel’s business, or by asking what the question has to do with the lawsuit. All of these responses are likely to show that: 1) You are arrogant and rude; or 2) You have something to hide. Obviously, we do not want this.

    If a question is improper, your lawyer will object. If your lawyer does not say anything, you should assume that the question is a proper one that you must answer.

    Say “yes” and “no,” rather than “uh huh” and “uh uh.” It may be difficult for the court reporter (and the jury) to distinguish between “uh huh” and “uh uh.” You certainly want to be clear whether you meant “yes” or “no.” For the same reason, you should avoid “talking with your hands.” Unless your deposition is taken by video tape, the jury will not be able to see the hand motions you make as you testify. Therefore, you must express your testimony completely in words. When talking about a distance, for instance, say “It was six inches,” rather than holding up your hands six inches apart and saying “It was this far.” Similarly, if you are asked to identify and testify about exhibits, such as documents or photographs, always mention in your answers the exhibit number of the thing you are referring to, so that it will be clear to the jury who hears your testimony what document or thing you are talking about.

    The court reporter is unable to take stenographic notes when more than one person is talking at the same time. Therefore, you should let the lawyer completely finish his question before you begin your answer. Do not anticipate what the question will be and cut the lawyer off mid-sentence, even where it is perfectly clear from his first few words what he is going to ask. If you do interrupt, it will be necessary for the lawyer to stop you and start the question all over again. This will prolong the deposition, make the court reporter unhappy, and make your testimony difficult to follow.

    You should not attempt to answer any question that contains a statement or assumption of fact which you know or believe not to be true. The classic example of such a question is: “When did you stop beating your wife?” The question assumes that you have beaten your wife in the past. If this is not true, then you should say something like “I cannot answer that question the way you have asked it.” Do not, however, volunteer what the problem with the question is. If the lawyer wants to know that, he will ask you. If he does ask, your answer in this particular situation would be something like “The question assumes that I have beaten my wife in the past, which is not true.” If you attempt in the first instance to give a substantive answer to a question like “When did you stop beating your wife?” your answer will probably sound like a tacit admission that the statement or assumption of fact contained in the question is correct.

    While giving your deposition is not likely to be the most pleasant experience you will ever have, it need not be unpleasant either. Forget everything you have ever seen on television or in the movies. The other lawyers will not be permitted to abuse you, or argue with you. If your lawyer feels that you are being abused, he will terminate the deposition. The vast majority of attorneys treat the opposing party and witnesses with courtesy and respect.

    While hopefully attempting to follow all of the advice given herein, you should try to be yourself during the deposition. Do not attempt to put on an act or pretend to have knowledge or personal qualities that you do not have. Do not attempt to use words or phrases that do not come naturally to you. Remember that the primary audience at whom your testimony is aimed is the jury, which is composed of laymen. The jurors are neither judges nor lawyers and will not expect you to speak in Latin phrases or use any kind of special terminology. If you attempt to change your personality or your mode of expression just for the deposition, your testimony will appear stilted and awkward and, more importantly, it will lose the quality of genuineness which is required in order for your testimony to be credible. Within the bounds of good taste and common sense, you should express yourself in language that is usual and customary for you.

    You are entitled to a break in the deposition at any time and for any reason. If you need to go to the rest room, make a telephone call, or take care of any kind of personal business, do not hesitate to ask for a break. You will not be a good witness if your mind is on something other than the questions being asked. Take as many breaks as you need during the deposition.

    You should always ask for a break if you become mentally fatigued and begin to have trouble concentrating on the questions.

    Lawyers will often ask you to speculate. The short answer is that the lawyer placed you under oath to tell the truth about the facts you recall. Asking you to speculate asks you to go beyond the facts, and delve into the unknown. In essence, this calls for you to violate your oath and go beyond the facts.

    During the course of the deposition, your lawyer will likely voice objections, and will tell you if you should refuse to answer.

    If there is testimony elicited from you which is damaging to our case, your lawyer may ask you questions to clean-up or “rehabilitate” you and your testimony.

    Do not be surprised if you are asked about documents you produced as part of the written discovery process. You should be prepared to answer questions about the steps you took to identify documents responsive to the discovery request, the privilege log, and the documents produced. Generally, you should not answer any questions about documents unless the document is in front of you.
    You will also be asked about what you did to prepare for the deposition, including everything you reviewed, all of the people you spoke with, and other preparation. Your discussions with your lawyer are privileged and are not discoverable.

    At the conclusion of your deposition, you will be given the opportunity to declare your intent to read the transcript, checking for errors. This is called “reserving” signature. While you cannot change the substance of your testimony, you can note errors in the transcript.
    Alternatively, you may “waive” signature, and accept the transcript as it is written.

    If you have any questions about the nature or purposes of a deposition, or about any of the foregoing advice, please do not hesitate to ask them during the pre-deposition conference.
    In terms of deposition mechanics, the single most important points are for you to tell the truth, to listen to the question and to only answer what is asked. Above all else, ensure that you are relaxed

Get Your Experts Opinions Nailed Down Ahead of Trial, or Else!

Erin Dunnavant | Property Insurance Coverage Law Blog | December 8, 2018

Recently, Florida’s Third District Court of Appeal found that a trial court abused its discretion by allowing the trial testimony of an insured homeowner’s expert when he expanded on his opinions during trial. The case is Citizens Property Insurance Corporation v. Vazquez.1

The loss dealt with an explosion inside a marijuana grow house located across the street from the insured homeowners’ residence. The explosion at the grow house occurred on September 22, 2012. Just after the explosion, the homeowners reported their claim to Citizens. After Citizens’ experts inspected they found the cause of damage to be wear and tear, excluded causes under Citizens policy and not due to the explosion. As such, Citizens denied the claim.

The homeowners then sued Citizens for breach of contract based on the denial. Although the trial was originally set in June of 2014, it was continued four times allegedly at the request of the homeowners and their counsel and the case did not actually go to trial until August 17, 2015. To support their position, the homeowners hired Dr. Calvin Konya, a blaster from Ohio to testify on their behalf. Mr. Konya was finally produced for his deposition on the eve of trial, despite several attempts by Citizens to depose him prior to that, according to the record. Mr. Konya’s deposition testimony was that the explosion at the house across the street could have caused damage to the home. He also admitted that he had never been to the insured property and could not testify regarding specific damages. According to the record, Dr. Konya arrived in Florida on day two of the trial (August 18, 2015) and went to the homeowners’ property that evening to finally inspect. The homeowners’ counsel did not disclose Konya’s visit to Citizens. On August 21, 2015—three days after Dr. Konya’s inspection, the homeowners’ counsel called him to testify. There Citizens learned for the first time he had been out to the property. Having now observed the property, Dr. Konya was able to expand on his previously given opinions and found that with certainty the explosion had caused specific damages. (A significant step beyond could have caused the damage).

During Citizens’ lawyer’s cross examination, Dr. Konya also admitted that without the inspection, he could not have given an opinion on specific damages. Citizens moved to suppress the witness’ testimony, but the trial court denied the motion. Then once Konya’s testimony came out, and the “beans were spilled” Citizens moved for new trial and that was also denied. After the jury awarded the homeowners $100,000.00, Citizens appealed.

Ultimately the appellate court agreed with Citizens, finding that the trial court had abused its discretion in allowing Dr. Konya’s testimony as it not only resulted in “unfair surprise” to Citizens but it was also “prejudicial” and required reversal. The appellate decision was based on the notion that parties have the right to rely on discovery deadlines and that expert opinions will not change after those deadlines. The mid-trial inspection of the homeowners’ expert that ultimately caused him to expand on his opinions given at deposition violated the discovery deadline and caused unfair surprise to Citizens. This was exhibited by the fact that Citizens’ trial counsel relied on the testimony during opening statement, particularly during a part where he stated that the jury should be listening to the homeowners’ experts who could not prove causation with certainty. In addition to causing unfair surprise to Citizens and their counsel, the appellate court found the allowance of Dr. Konya’s trial testimony to be prejudicial as the previously undeveloped and never disclosed opinion of Dr. Konya became the foundation of the homeowners’ case. The court also found that the timing of the testimony did not permit Citizens to challenge Dr. Konya’s qualifications or rebut this critical testimony.

Ultimately the appellate court summed up its holding:

Accordingly, we conclude that the trial court abused its discretion when it allowed Konya to testify because Konya’s opinion was based on information obtained post-discovery and mid-trial. Because Konya’s trial testimony both surprised and prejudiced Citizens during trial, we reverse the final judgment and remand for a new trial.

While writing about a loss for insured policyholders is not my favorite task, I feel like I need to make my fellow policyholder advocates aware of “what not to do” when issues like this cause both parties to expend the time and resources to start over with a trial. However, I am unaware of the facts and circumstances surrounding why the trial was continued so many times and why the expert couldn’t appear sooner. It may have concerned an illness or events that occurred outside of everyone’s control. (I am giving homeowners’ counsel the benefit of the doubt here).

Here are some tips to avoid what happened in this case:

  1. Obtain your experts early and picture your case going before a jury from the onset; ironically it may help your case settle early if the insurance company knows you are coming in well prepared;
  2. Conversations regarding your expert’s obligations should always include the chance that the claim might have to get tried. You never know when an insurance carrier is going to dig their heels in or when your client is going to just get so fed up that they want to go to trial on principal. However, your expert should expect to be visiting the property and needs to know that he will have to sit for deposition at some time prior to the discovery deadline. In an ideal world, their initial opinions should be thorough enough to support your case in chief on the off-chance that their deposition is not taken prior to trial.
  3. If you are a trial lawyer, some work on the weekends is inevitable as preparing a Civil Case for trial is a massive undertaking. As such, be willing to produce your expert on a weekend prior to the discovery cutoff in an absolute pinch as its better than violating the Court’s discovery deadline.
  4. If some emergency happens requiring a during trial inspection, the homeowners’ counsel here MIGHT have been able to salvage this one if they’d simply disclosed to Citizens that he’d been out there and let Citizens lawyer depose him the night before he testified.

With all that said, I would also like to remind my friends, colleagues, and fellow lawyers out there representing Citizens that this is a very narrow holding based on these very particular facts and should not be applied too sweepingly.
1 Citizens Prop. Ins. Corp. v. Vazquez, Case No. 3D15-2864 (Fla. 3d DCA November 21, 2018).

Construction Law Practice Tip: Certificate of Merit Requirements in Federal Court


Pierre Grosdidier and Ryan Gardner | Haynes and Boone LLP | November 12, 2018

Under Texas law, a plaintiff must file a certificate of merit in any action for damages arising out of the provision of professional services. A certificate of merit is an affidavit from a third-party professional who is knowledgeable about the defendant’s practice area that essentially gives credence to the plaintiff’s claims. A failure to file a certificate with the first-filed petition will result in the action’s dismissal in Texas state courts. But, federal courts are currently divided on whether plaintiffs must also file a certificate of merit when bringing these claims in diversity. No federal Circuit Court has addressed the Texas certificate of merit statute yet, but several federal district courts have considered the issue both for the Texas statute and other comparable state laws and reached conflicting conclusions. Two Texas district court cases discussed below illustrate this conflict well.

Faced with these conflicting results, construction law practitioners bringing claims against professionals in federal court should consult the case law to determine whether the forum court has decided the issue and how. Even if a district judge has previously held that plaintiffs in diversity can dispense with certificates of merit, it is conceivable that another judge might hold otherwise. Moreover, a district judge’s decision that no certificate of merit is required might be reversed by the Fifth Circuit Court of Appeals. Considering the time required to appeal, a negligence claim against a professional might be well past its limitations by the time the appellate court remands the case and the district court dismisses it without prejudice. Therefore, the best practice might be to always include a certificate of merit with an initial complaint.

In Estate of C.A. v. Grier, the Southern District of Texas held the certificate of merit requirement did not apply to federal diversity cases. The Supreme Court’s seminal opinion in Erie Railroad Co. v. Tompkins along with its more recent opinion in Shady Grove Orthopedic Associates v. Allstate Insurance Co. guided the court’s analysis. Erie held that courts adjudicating diversity-jurisdiction claims must apply state substantive law but federal procedural law to the proceedings. To determine if Section 150.002 was a substantive or procedural rule, the court applied the two-step test set forth in Shady Grove: (1) it determined whether the state law—Section 150.002—conflicted with federal law and, (2) if such a conflict did exist, the court asked if applying the federal rule was valid under the federal Rules Enabling Act, which forbids federal procedural rules from abridging, enlarging, or modifying any substantive rights.

Applying the first step, the court found Section 150.002 conflicted with various Federal Rules of Civil Procedure. The court first found a conflict with federal law because Section 150.002 imposed more stringent pleading requirements than Rules 8 and 9. Specifically, the court found Section 150.002’s requirement that the certificate of merit contain the specific factual allegations, including the action, error, or omission by the professional that formed the basis of the suit, created additional pleading requirements beyond Rule 8’s requirement that a pleading provide a short and plain statement of the plaintiff’s claim. Section 150.002 was, therefore, inconsistent with federal law. The court also found Section 150.002 conflicted with the discretion given to courts by Rule 11 to sanction attorneys for filing meritless claims. The court held the mandatory dismissal requirement took away the court’s Rule 11 discretion except as to whether the case should be dismissed with prejudice. Moreover, it concluded the certificate of merit requirement was inconsistent with Rule 26’s expert disclosure and report requirements by accelerating the federal procedures regarding experts.

Turning to the second step, the court held that applying Rules 8, 9, 11, and 26 in light of Section 150.002 did not affect any substantive rights (and, therefore, did not violate the Enabling Act) because Section 150.002’s “most obvious purposes are procedural.” Specifically, Section 150.002 was a procedural rule designed to inform the defendant of the specific conduct the plaintiff is challenging and to assure the court that the claims have merit.

The court found federal law provided other procedural means to accomplish these objectives, namely those offered by Rules 8 and 26(a). Thus, it held that Section 150.002 did not apply to federal diversity cases and denied the defendant’s motion to dismiss.

In State Automobile Mutual Insurance Co. v. Dunhill Partners, Inc., the Northern District of Texas reached the opposite conclusion when faced with identical arguments. The court found Section 150.002 did not conflict with Rules 8 or 9 because the statute was not about pleadings, facts, or notice but rather about “rooting out professional negligence claims that lack expert testimony.” As to Rule 11, the court found no inconsistency because the Federal rules implicitly mandated dismissal for a procedural deficiency, such as under a Rule 12(b) motion, and because Rule 11 focuses on attorneys, not the claims. The court also found no conflict with Rule 26 because Section 150.002’s concurrent filing requirement did not alter the federal schedule for disclosures or discovery. Additionally, the court found the certificate of merit requirement to be substantive because its dismissal requirement had a direct effect on the ultimate result of the litigation. The Court, therefore, held Section 150.002 should apply to federal diversity cases, dismissed all claims without prejudice, and ordered the plaintiff to file an amended petition within 30 days to avoid dismissal with prejudice.

Supreme Court of Florida Upholds the Frye Standard

Andrew O. Gay and Luis Prats | Carlton Fields | November 13, 2018

On October 15, 2018, in the matter of Richard Delisle vs. Crane Co., et al.[1], the Supreme Court of Florida unequivocally reaffirmed that Frye remains the standard for the admission of expert testimony. This reaffirmation comes after the Florida Legislature amended section 90.702 to incorporate the Daubert standard into the Florida Rules of Evidence in 2013.

A little backstory may be instructive. The Frye standard gets its name from a federal court of appeals opinion in Frye v. United States[2], which, in general, required expert testimony to be based on “well-recognized scientific principle or discovery.”[3] Accordingly, novel scientific technique that is not generally accepted by the established scientific community is inadmissible. In Florida, the Frye standard became the rule for the admission of expert testimony.[4]

Almost 50 years after Frye, the Federal Rules of Evidence were born, which included Rule 702. Rule 702 dealt specifically with the admission of expert testimony at trial. Years later, in its opinion in Daubert v. Merrell Dow Pharmaceuticals[5] dealing with the application of Federal Rules of Evidence Rule 702, the United States Supreme Court determined that the judge is the “gatekeeper” when it comes to admissibility of expert testimony, which contradicted the Frye standard that placed the decision of admissibility with the scientific community. In 2000, Federal Rules of Evidence Rule 702 was amended to reflect the Daubert standard. Since that time, the Daubert standard, as codified in Federal Rules of Evidence Rule 702, is the standard used in all federal courts.

Florida, however, has not followed suit. In 1997, following Daubert, the Supreme Court of Florida stated that Florida will continue to apply the Frye standard in order to “guarantee the reliability of new or novel scientific evidence.”[6] Despite the Court’s repeated affirmations, the Florida Legislature amended the Florida Rules of Evidence Rule 90.702 to incorporate the Daubert standard.

The question before the Supreme Court of Florida in Delisle concerned the constitutionality of the Florida Legislature’s 2013 amendment to Florida Rules of Evidence Rule 90.702. The Court found that the amendment was unconstitutional because it concerned a procedural, not a substantive, matter, and because the amendment was in conflict with a rule of the Supreme Court of Florida.

The Court stated that Florida Rules of Evidence Rule 90.702 is not substantive because “it does not create, define, or regulate a right.”[7] The Court noted further that this Rule 90.702 “solely regulates the action of litigants in court proceedings,”[8] thus rendering the Rule procedural. Pursuant to the Florida Constitution, the Supreme Court of Florida has the exclusive authority to “adopt rules for the practice and procedure in all courts.”[9] Accordingly, “[t]he Legislature may only repeal the rules of this Court by ‘general law enacted by two-thirds vote of the membership of each house of the legislature.’”[10] The amended Florida Rules of Evidence Rule 90.702 conflicted with the Supreme Court of Florida’s earlier affirmations that Frye is the applicable procedural standard for the admission of expert testimony. The Florida Legislature failed to collect the required votes.

You may be asking yourself: “This is all fine and well, but how does this impact me?” Good question. For cases brought in Florida, and depending on the circumstances, litigants may have the option to choose between litigating in federal court or Florida state court, which will cause the expert’s testimony to be scrutinized differently. This should be given serious consideration at the early stages of the litigation.

Do not hesitate to contact any member of our construction practice group if you have questions about the Richard Delisle vs. Crane Co., et al. decision or any other construction contract or litigation matter.

[1] NOTICE: this opinion is not final until time expires to file rehearing motion and, if filed, determined.

[2] 293 F. 1013 (D.C. Cir. 1923).

[3]Id. At 1014.

[4]Seee.g. Kaminski v. State, 63 So. 2d 339, 340 (Fla. 1952); Bundy v. State, 471 So. 2d 9, 13 (Fla. 1985);Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989); and Hadden v. State, 690 So. 2d 573 (Fla. 1997).

[5] 509 U.S. 579 (1993).

[6]Brim v. State, 695 So. 2d 268 (Fla. 1997) (citing Stokes v. State, 548 So. 2d 188 (Fla. 1989)).

[7]Richard Delisle v. Crane Co., et al., No. SC16-2182 at 17 (Oct. 15, 2018).

[8] 17.

[9] Art. V, § 2(a), Fla. Const.

[10]Richard Delisle v. Crane Co., et al., No. SC16-2182 at 14(Oct. 15, 2018), quoting Art. V, § 2(a), Fla. Const.