Fifth DCA
Holland v. James R. Holland, II
5th DCA
4/6/23, Judge Edwards
Topics: Exclusion of Expert Testimony (Daubert)
Yes, this is a family law case. No, we don’t normally look at those. Here, one of the issues on appeal, however, was the exclusion of the testimony by the former wife’s threating physician about whether she was able to work (which related to imputing income to her). Also, the husband is a personal injury attorney. The former wife is an optometrist who had her own practice but now alleges that she is disabled. She never worked full time during the 20-year marriage, and she fulfilled many of the parents’ parenting responsibilities. Her earnings were typically $50,000 per year, and she closed her practice during the divorce. The former husband’s income varied but was around $240,000 in 2020.
The wife’s doctor testified that she had certain medical conditions that rendered her disabled from practicing full-time as an optometrist. The husband challenged the testimony under Daubert (the case requiring the trial court to gate-keep expert testimony that is lacking in qualifications, reliability, or helpfulness). While the husband did not challenge the doctor’s qualifications, he attacked the reliability of the testimony (a Daubert prong) because the doctor mistakenly relied in part on an abnormal nerve conduction test performed on some other mystery patient, whereas the wife’s NCV was normal. Also, the doctor had not seen surveillance showing the wife’s true physical abilities, and he was unaware of the opinions by a surgeon who opined that carpal tunnel surgery on the wife was completely successful and restored her ability to engage in light-duty work consistent with being an optometrist. The doctor was not aware of the wife’s vigorous exercise program, and the doctor only conducted a telehealth interview, not an in-person physical exam.
The doctor was not permitted to testify at the Daubert hearing. He did file an affidavit stating that he did not rely on the mystery report in reaching his opinions. The husband filed affidavits from his own experts stating that that doctor’s methodology was unreliable given that he relied on the NCV from the wrong patient and that he failed to engage in the accepted practice of making a differential diagnosis (which involves ruling out similar conditions that have similar clinical features to the ultimate diagnosis).
The trial court agreed with the husband and found the doctor’s opinions unreliable under Daubert. After a final order was entered, the wife appealed.
On appeal, the DCA held that the trial court erred in excluding the doctor’s opinions under Daubert. The alleged defects in his opinion were fodder for cross-examination, “but they do not demonstrate a basis for disqualification under Daubert in this bench trial.” Exclusion of the evidence constituted an abuse of discretion. Reversed and remanded.
https://supremecourt.flcourts.gov/content/download/865373/opinion/230036_DC08_04062023_ 082833_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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