In Rojas v. Rodriguez, No. 3D15-277, 2016 WL 626148, at *1 (Fla. 3d DCA Feb. 17, 2016) the plaintiff filed a personal injury action against the defendant.  The defendant admitted liability and the case proceeded to trial on causation.  At trial, a neurosurgeon testified that the plaintiff’s herniated disc was consistent with the twisting of the body the plaintiff experienced during the accident.  The defense objected to the neurosurgeon’s testimony claiming it was outside the scope of the neurosurgeon’s expertise and was a biomechanical opinion.  The trial court overruled the objection.

Once the plaintiff rested his case, the defendant moved for a mistrial alleging that the neurosurgeon was not qualified to render such testimony because he was not an accident reconstructionist or biomechanical expert.  The trial court denied the motion and the defense renewed the motion before the jury returned.  After the verdict was delivered, the defendant once again renewed his motion for mistrial.  The trial court instructed the defendant to file a written motion so that the plaintiff could respond.  In the written motion, the defendant raised a Daubert objection for the first time.  The trial court heard arguments from the parties and granted the motion based on the Daubert objection.

On appeal, the Third District reversed finding the defendant’s Daubert objection was untimely.  The Court explained:

This failure [was] fatal to the defendant’s case, particularly in light of the fact that the defendant was on notice that the neurosurgeon would be an expert witness as early as December 11, 2013, when the plaintiff filed his expert witness list, over ten months before the October 27, 2014 start of trial. Despite this disclosure, the defendant took no steps to discover the basis of the neurosurgeon’s opinion.  Moreover, it was incumbent upon the defendant, as the challenging party, to timely raise a Daubert objection and request a hearing before the trial court.

We recommend raising all Daubert challenges at the earliest possible time.  Any motion should be filed well in advance of the trial so the trial court can conduct the proper hearing.  It is also important to nail down the expert’s testimony and opinions in interrogatories, reports and depositions.  Lastly, if an expert provides an opinion that was not previously disclosed, the party should immediately make a Binger objection and argue that he or she was surprised in fact and prejudiced by this undisclosed opinion.

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.