Simona Bunin v. Matrixx Initiatives, Inc., etc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SIMONA BUNIN,
Appellant,
v.
MATRIXX INITIATIVES, INC., a Delaware corporation f/k/a GUMTECH
INTERNATIONAL, INC., a foreign corporation, and ZICAM, LLC, a
limited liability corporation f/k/a GEL TECH, LLC, an Arizona limited
liability company, and PUBLIX SUPER MARKETS, INC., a Florida
corporation,
Appellees.
Nos. 4D14-3579 & 4D15-86
[ June 1, 2016 ]
Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No.
09-056853 (26).
Keith Chasin of the Law Office of Keith Chasin, Miami, for appellant.
Barry L. Davis and Daniel R. Lever of Thornton Davis Fein, Miami, and
Alan J. Lazarus and Jaime D. Walter of Drinker Biddle & Reath, LLP, San
Francisco, CA, for appellees.
TAYLOR, J.
In this products liability action, the plaintiff alleged she lost her sense
of smell, a condition known as anosmia, after she used a Zicam nasal
spray. The defendants moved to exclude the opinion of the plaintiff’s
causation expert, based on the recent change to section 90.702, Florida
Statutes (2013), which now requires trial courts to apply the standard of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in
ruling on the admissibility of expert testimony. The trial court granted the
defendants’ motion and entered summary judgment in favor of the
defendants. We affirm the summary judgment, concluding that the trial
court did not abuse its discretion in excluding the causation testimony
under section 90.702, Florida Statutes (2013). However, we reverse the
cost judgment to the extent it awarded attorney travel expenses, and
expert fees that were not for a deposition, trial testimony, or a court-
ordered report.
An order on a motion to exclude expert testimony is reviewed for an
abuse of discretion. Booker v. Sumter Cty. Sheriff’s Office, 166 So. 3d 189,
194 n.2 (Fla. 1st DCA 2015). But the issue of whether a statute applies
retroactively is a question of law reviewed de novo. Bionetics Corp. v.
Kenniasty, 69 So. 3d 943, 947 (Fla. 2011).
In 2013, the Florida Legislature amended section 90.702 with the intent
to adopt the federal Daubert standard for the admission of expert
testimony. See Ch. 2013–107, § 1, Laws of Fla. (2013). On appeal, the
plaintiff’s primary argument is that the 2013 amendments to section
90.702 are substantive in nature and should not be applied retroactively
to her case, which was filed in 2009. We disagree.
It is well-settled that “[p]rocedural or remedial statutes . . . are to be
applied retrospectively and are to be applied to pending cases.” Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994). A statute
that merely “relates to the admission of evidence” is generally considered
procedural. Windom v. State, 656 So. 2d 432, 439 (Fla. 1995).
Accordingly, as the Third District has explained, “section 90.702 of the
Florida Evidence Code indisputably applies retrospectively.” Perez v. Bell
South Telecomms., Inc., 138 So. 3d 492, 498 (Fla. 3rd DCA 2014). 1
Having carefully reviewed the record, we conclude that the trial court
did not abuse its discretion in excluding the plaintiff’s expert’s causation
opinion under Daubert, even though the expert’s opinion would have been
admissible under the “pure opinion” rule of Marsh v. Valyou, 977 So. 2d
543, 548–50 (Fla. 2007). Because the plaintiff’s case depended upon her
expert’s excluded causation testimony, the summary judgment in favor of
the defendants must stand.
Turning to the plaintiff’s appeal of the cost judgment, we reverse the
award of costs to the extent it awarded attorney travel expenses and the
fees of the defense expert, Dr. Brent. These costs were not costs that
“should be” or “may be” taxed under the Statewide Uniform Guidelines for
Taxation of Costs in Civil Actions, and the trial court failed to make any
1 In deciding that the amendments apply retrospectively, we note that the
plaintiff did not raise the argument that the 2013 amendments to section 90.702
violated the separation of powers doctrine by encroaching upon the Florida
Supreme Court’s authority to adopt procedural rules in Florida courts. See Art.
V, § 2(a), Fla. Const.
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specific findings in the cost judgment as to the unique and extraordinary
circumstances that would justify a deviation from the guidelines. See
Rodrigo v. State Farm Fla. Ins. Co., 166 So. 3d 933, 934 (Fla. 4th DCA
2015) (When deviating from the guidelines, the trial court is “required to
make specific findings as to the unique and extraordinary circumstances
justifying such an award.”).
From the face of the cost judgment (including the exhibit incorporated
by reference), it is clear that the defendants’ counsel’s travel expenses
should not have been awarded. See Citizens Prop. Ins. Corp. v. Pulloquinga,
183 So. 3d 1134, 1138 (Fla. 3d DCA 2015) (holding that the trial court
improperly awarded counsel’s travel time and travel expenses as costs in
contravention to the guidelines). Likewise, under the guidelines, Dr.
Brent’s time did not qualify as a cost that “should be taxed,” because his
fees were not for a deposition, trial testimony, or a court-ordered report.
Nor did his fees fall under the category of costs that “may be taxed” under
the guidelines. Therefore, we reverse the award of costs for attorney travel
expenses and for Dr. Brent’s fees, and remand for the trial court to
eliminate those expenses from the cost judgment.
Affirmed in case no. 4D14-3579; Reversed and Remanded in case no.
4D15-86.
CIKLIN, C.J., and MAY, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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