Thursday, October 25, 2018

FYI: Fla Sup Ct Changes Standard for Admitting Expert Testimony Into Evidence

The Supreme Court of Florida recently held that the Florida Legislature's 2013 amendment of the Florida Rules of Evidence adopting the federal Daubert standard for admitting expert testimony was unconstitutional. 

           

In so ruling, the Court returned Florida to the Frye standard for admitting expert testimony.

 

A copy of the opinion is attached.

 

The case involved the admissibility of expert testimony in a plaintiff's personal injury action against several cigarette manufacturer defendants.  The plaintiff used multiple experts to establish that smoking cigarettes caused his cancer.  The trial court examined the admissibility of the expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the prevailing standard in Florida at the time of the trial. 

 

As you may recall, in Daubert, the Supreme Court of the United States pronounced the standard to admit expert scientific testimony in federal court.  In doing so, the SCOTUS announced that Federal Rules of Evidence 702 had superseded the prior standard to admit expert testimony announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 

 

The Frye Court had held than courts should admit "expert testimony deduced from a well-recognized scientific principle or discovery" that had gained general acceptance in the particular field in which it belongs".

 

Daubert receded from Frye holding that to qualify as admissible "scientific knowledge, an inference or assertion must be derived by the scientific method."  This shifted the focus from :general acceptance" to "principles and methodology, not on the conclusions that they generate."

 

Following Daubert hearings, the trial court admitted the experts' testimony and the plaintiff prevailed at trial. 

 

The defendants appealed to Florida's Fourth District of Appeal.  The Fourth District reversed for a new trial as to one defendant and a directed verdict in favor of another defendant finding under Daubert that the trial court did not "properly exercise its gatekeeping function" for several of the experts. 

 

The Supreme Court of Florida (the "Court") granted plaintiff's request for review.

 

The Court noted that it has worked with the Florida Legislature for almost forty years "to enact and maintain codified rules of evidence."  In 1976 the Florida Legislature enacted the Florida Evidence Code.  In 1979, the Court adopted the Evidence Code to the extent that it was procedural. 

 

In doing so the Court found that any evidence rules that were substantive in nature were the Legislature's responsibility, but that the Court had the sole responsibility for any procedural evidence rules or rules that govern "the parties, their counsel, and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution."

 

In 2013, the Florida Legislature amended section 90.702, Florida Statutes to incorporate Daubert into the Florida Rules of Evidence and to cease applying the Frye standard to expert testimony.  The Frye rule was the standard in Florida before the 2013 amendment.

 

The Court observed that in Article II, section 3, the Florida Constitution "prohibits one branch of government from exercising any of the powers of the other branches."

 

Relevant here, Article  V, section 2(a) gives the Court "the exclusive authority to 'adopt rules for the practice and procedure in all courts.' "  The Florida Constitution further provides that to repeal any Court rule or decision, the Legislature must enact a law "by a two-thirds vote of the membership of each house of the legislature".  The Court concluded that the Legislature exceeded its authority because the vote to amend section 90.702 did not meet this requirement.

 

Moreover, the Court found that the 2013 amendment to section 90.702 was not substantive because it didn't "create, define, or regulate a right.  Instead, it is procedural because it solely regulates the action of litigants in court proceedings."

 

Next, the Court noted that to declare the 2013 amendment to section 90.702 unconstitutional it also had to "conflict with a rule of this Court."  The Court had little trouble finding that its rulings adopting the Frye standard created a procedural rule because the Court may pronounce a rule in case law. 

 

Thus, the Court found the 2013 amendment to section 90.702 unconstitutional and reaffirmed "that Frye, not Daubert, is the appropriate test in Florida courts."

 

Applying Frye to this case, the Court noted that Frye does not apply "to the vast majority of cases because it only applies when experts render an opinion that is based on new or novel scientific techniques."  Against this backdrop, the trial court properly admitted the expert testimony because "medical causation testimony is not new or novel and is not subject to Frye analysis."

 

Accordingly, the Court reversed the Fourth District's ruling and remanded to the trial court to reinstate the judgment in favor of the plaintiff.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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Tuesday, October 23, 2018

FYI: 7th Cir Rejects ECOA Claim Based on Vague Statement by Defendant's Employee

The U.S. Court of Appeals for the Seventh Circuit held that the plaintiffs failed to prove a violation of the federal Equal Credit Opportunity Act ("ECOA") under a disparate treatment theory where their only evidence was a vague statement from one of the defendant's employees.

 

Accordingly, the Seventh Circuit affirmed the ruling of the trial court granting summary judgment in favor of the defendant.

 

A copy of the opinion is available at:  Link to Opinion

 

The plaintiffs ("Plaintiffs"), an African-American couple, purchased a home from the seller ("Seller") in October 2008 for $185,000.  Plaintiffs made a down payment of $12,000, and monthly payments of $1,400 to the Seller for about one year.

 

In December 2009, the lender ("Lender") informed the Plaintiffs there was a mortgage on their home and that it was foreclosing.  Plaintiffs were unaware of the mortgage when they purchased the property.

 

To avoid foreclosure, the Plaintiffs attempted to assume the Seller's debt and mortgage.  Over four years, the Plaintiffs attempted to assume the Seller's mortgage, but the servicer at the time never advised them of what information it needed to evaluate their application. 

 

In 2012, the Plaintiffs acquired a quitclaim deed for the property from the Seller, and in 2013 the Lender foreclosed on the home, and scheduled a foreclosure sale.  

 

The defendant servicer ("Servicer") began servicing the loan in March 2014.  Nine months later, the Servicer informed the Plaintiffs of what information they needed to provide in order to apply to assume the loan.  The Servicer also agreed to postpone the foreclosure sale. 

 

Over the next several months, the Plaintiffs attempted to apply for the loan without success.  The Plaintiffs alleged that they sent the required financial records to the Servicer three times, but according to an affidavit from the Servicer, the Plaintiffs never submitted an application that the Servicer deemed complete enough to warrant review.

 

The Servicer also informed the Plaintiffs in March 2015 that they needed to bring the loan current before they could assume it.  However, without the Seller's written consent to discuss the status of his loan with a third party (i.e. the Plaintiffs), the Servicer refused to disclose information about his missed payments.

 

Thus, the Plaintiffs alleged they could not bring the loan current because they did not know how much it would cost to do so.

 

The Plaintiffs further alleged that they believed the Servicer had not permitted them to assume the loan because they are African-American. 

In support of their claim, the Plaintiffs asserted that the Servicer would sometimes hand up on them when they called or sent them to voicemail and would not call back.

 

The Plaintiffs also alleged that they eventually got through to an employee ("Employee") of the Servicer who they believed to be African-American, who told them, "These people, you know how they treat us." 

 

Based on these allegations, the Plaintiffs filed a lawsuit asserting a number of claims, including a violation of ECOA. 

 

The trial court dismissed most of the claims, but permitted the Plaintiffs to proceed with their ECOA claim. 

 

As you will recall, ECOA makes it "unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction, on the basis of race…"

 

After discovery, summary judgment was entered in favor of the Servicer.  The trial court determined that the Plaintiffs "probably were not 'applicants'" under ECOA because they were seeking to assume a line of credit, rather than to "exten[d], renew[], or continu[e]" one. 

 

Moreover, the trial court ruled that even if ECOA applied, the Plaintiffs failed to present evidence of discrimination under either a disparate impact or disparate treatment theory.   

 

The Plaintiffs appealed, and argued that they presented enough evidence to withstand summary judgment. 

 

Specifically, the Plaintiffs advanced a disparate treatment theory and asserted that the Employee's uncontroverted statement showed that the Servicer discriminated against them based on race by delaying the assumption process and requiring them to bring the loan current before assuming it.

 

The Seventh Circuit disagreed, holding that "[t]he district court correctly entered summary judgment for the defendants because no reasonable jury could find that [the Servicer] discriminated against the [Plaintiffs] based on their race." 

 

The Court further noted that the Plaintiff's only evidence was the Employee's testimony, "which is vague and requires too much speculation to conclude that their race motivated [the Servicer] to require them to satisfy [the Seller's] outstanding loan payments."

 

Instead, "that requirement is consistent with the loan agreement, which conditions assumption on [the Servicer's] determination that its security would not be impaired." 

 

Further, the Plaintiffs "do not point to any evidence countering the [Servicer's] representative's statement that they never produced a complete application."

 

Accordingly, the Seventh Circuit affirmed the ruling of the trial court. 

 

Having decided that the Plaintiffs did not show discrimination, the Seventh Circuit did not reach the issue of whether they were "applicants" under ECOA.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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