The Fourth DCA issued an opinion dealing with (1) the reliability prong of the Daubert analysis and (2) the enforceability of a proposal for settlement containing typographical errors.
In Sanchez v. Cinque, Case No. 4D16-2530, a customer of a day spa sustained injuries as a result of a chemical peel. The defense appealed a jury’s award to the Plaintiff arguing, in part, that it was error to strike the testimony of the defendant’s dermatologist concerning the impact of the chemical peel on Plaintiff’s pre-existing rosacea condition. The dermatologist examined the plaintiff, reviewed her medical records, and reviewed photos taken after the incident. The trial court found his methodology was unreliable because he did not review any before photographs, and he made assumptions as to her pre-exiting conditions that were unwarranted from the information in plaintiff’s medical records. The appellate court affirmed. “Although courts have recognized that a physical examination and review of medical records may qualify as an acceptable and reliable methodology, an expert’s opinion should not, as here, be based on assumptions not rooted in any facts actually contained in the medical records relied upon.”
Also, at issue was the enforceability of a proposal for settlement. Plaintiff served a proposal on the Defendant, which included a release. There was no issue with the proposal, but the release mistakenly included the names of two unknown non-parties. This was a cut-and-paste error, but the defense claimed it rendered the proposal ambiguous. The appellate court disagreed finding that “the typographical error in the release was not inconsistent with the proposal for settlement.” The Court compared this minor error with discrepancies as to the amount of the settlement and as to what claims a proposal was meant to resolve. Those discrepancies create ambiguities, whereas this cut-and-paste error did not.
There are two lessons to take away from Sanchez. One, the reliability prong of Daubert is not automatically satisfied when an expert physician examines the plaintiff and uses past medical records to reach an opinion. The expert’s opinion must be rooted in the facts and data actually contained within those records. Second, if possible, avoid attaching releases to proposals for settlement. While the current trend in the law is to not “nit-pick” proposals to find ambiguities, excluding a release from a proposal lessens the chance that a plaintiff will be able to manufacture ambiguities.
If you have any questions as to Daubert or proposals for settlement or would like to refer an appellate case, please contact our appellate attorneys.