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In 2013, the Florida Legislature incorporated the rigorous Daubert test for introduction of expert witness testimony. The Florida Evidence Code, now adopting those requirements set forth by the U.S. Supreme Court, requires the trial court judge to perform a “gate-keeping” function in determining whether an expert witness’ testimony is admissible. In performing its gate-keeping role, the trial court must examine the basis of the expert’s opinion and determine whether it is based on sufficient facts or data, the product of reliable principles or methods, and determine whether the witness has applied the principles and methods reliably to the facts of the case.

While the Daubert standard has been the law in Florida for nearly three years, the appellate courts had yet to issue a decision on when a party should raise an objection based upon Daubert. With the Third District Court of Appeals issuing its recent decision in Rojas v. Rodriguez, 41 Fla. L. Weekly D423 (3rd DCA 2016), trial lawyers have finally been given some guidance on the mechanics and timing of a Daubert challenge.

In Rojas, the dispute between the parties was over the relatedness of a lumbar spine injury to an individual involved in a car accident. The Plaintiff relied upon a neurosurgeon who admittedly was not a biomechanical engineer and/or an accident reconstructionist to prove that the injuries suffered were related to the accident. While the Defendant’s counsel objected to presentation of this evidence at trial, they did not cite Daubert as a reason for challenging the admissibility of his testimony. During the trial, the court overruled the Defendant’s objection. Following the trial, the defense moved for a new trial challenging the admissibility of the expert witnesses’ testimony under Daubert. The trial court agreed and an appeal followed. The appellate court in Rojas reversed the trial court holding that the defense had waived its objection to the Plaintiff’s expert witness because it had been on notice that the neurosurgeon would be an expert witness at least 10 months before the trial. Additionally, despite the disclosure of the identity and specialty of the expert witness, the defense took no steps to discover the basis of the neurosurgeon’s opinion. The District Court of Appeals held that the party’s Daubert objection had been waived.

The Third District Court of Appeals opinion does not lay out a definitive timeline by which a party must make a Daubert objection, but raising the issue post-trial is clearly too late. Proper and timely investigation of the basis of an expert’s opinion must be done before trial so that counsel may timely make objections to their admissibility.