The tale of the Heron’s Landing lawsuit against D.R. Horton, which resulted in a judgment of $9,600,000.00, is well known among all Florida construction law attorneys and insurance professionals. Since 2016, it has been the proverbial elephant in the room and the stick beaten over defense attorneys’ heads at mediation. Since the verdict, D.R. Horton has continued to fight many issues, but the most prominent issue was the trial court’s admissibility of extrapolation testimony from the Association’s experts.

On November 12, 2019, the Florida Supreme Court finally put an end to the fight by declining to accept jurisdiction and denied D.R. Horton’s Petition for Review. While the Supreme Court’s decision is certainly a blow for D.R. Horton to escape the $9.6 million verdict, it begs the question: What does this mean for others challenging extrapolation going forward?

First, the Supreme Court did not actually address extrapolation issues. Rather, it had to decide whether to accept jurisdiction of the case and it did so in a simple order stating, “the Court having determined that it should decline to accept jurisdiction, it is ordered that the petition for review is denied.”

D.R. Horton’s petition was based on the argument that the First District Court of Appeal’s opinion, dated December 27, 2018, which upheld admissibility of the expert’s extrapolation testimony, conflicted with the then existing case law of DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018). DeLisle was decided in October 2018, two months before the appellate court decided Horton v. Heron’s Landing.

The First District Court of Appeal did not analyze the admissibility of the extrapolation testimony under the Daubert standard, which the trial court used. Rather, the appellate court held that since DeLisle confirmed that Frye was the correct standard for expert testimony, the extrapolation testimony would still have been admissible because the testimony at issue was not new or novel and thus a separate Frye analysis was not necessary. See D.R. Horton v. Heron’s Landing Condo Ass’n, 266 So. 3d 1201, 1208 (Fla. 1^st DCA 2018). The Court of Appeal did not need to remand the case for a separate Frye analysis because there was sufficient testimony presented to the trial court at the evidentiary hearing (and at trial) that the Association’s experts “used a scientifically reliable and peer-reviewed methodology that was the industry standard.” Id. at 1207. Stated more succinctly, the extrapolation testimony would still be admissible and not excluded under Frye because the testimony was not new or novel and the techniques and methodology were “generally accepted.”

Since the decision in DeLisle, the Florida Supreme Court changed direction and formally adopted the Daubert standard in May 2019, which was codified by the Florida Legislature in 2013 by amending Fla. Stat. 90.702. See In re: Amendments to the Florida Evidence Code, 2019 Fla. LEXIS 818 (May 23, 2019). Again, the appellate issues addressed by the First District Court of Appeal and Florida Supreme Court did not address the admissibility of the extrapolation testimony under the Daubert standard. While it is expected that plaintiffs will continue to introduce extrapolation testimony and cite to the Heron’s Landing trial court order, the parties can still set the stage for this issue to be decided by the appellate courts. While D.R. Horton may have lost the Heron’s Landing battle, the war to exclude extrapolation testimony under Daubert has not yet been lost.

About Michael J. Childers:

Mr. Childers is Board Certified in Construction Law by the Florida Bar and is AV® Preeminent Peer Review Rated by Martindale-Hubbell. He is an expert in handling construction-related claims involving defects, breach of contract or warranty, professional negligence, delay, liens / bonds, product defects and insurance coverage. He has trial experience involving large, complex construction cases.

He represents owners, contractors, design professionals, subcontractors in various trades, material suppliers, and manufacturers in construction disputes, and also assists clients in transactional work including drafting and negotiating construction contracts.