24 Fla. L. Weekly Supp. 811b

Online Reference: FLWSUPP 2410PARKInsurance — Uninsured motorist — Scientific evidence — Expert witnesses — Testimony of insurer’s biomechanical expert, opining that forces applied in rear end collision to vehicle in which plaintiff was passenger were not sufficient to create injury mechanism for claimed cervical spine injuries, is excluded under both Daubert standard and Frye analysis — All three steps in expert’s injury causation analysis were based on insufficient facts where expert did not personally examine plaintiff, vehicles or accident scene — Further, expert’s methodology lacks general acceptance in relevant scientific community, and expert lacks expertise to render medical opinions

AMANDA PARK, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign Corporation; and LOGAN K. ATKINSON, Defendants. Circuit Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2014-CA-49472-XXXX-XX. August 30, 2016. George W. Maxwell III, Judge. Counsel: Andrew Pickett, Alpizar Law, LLC, Palm Bay, for Plaintiff. Lester Lewis, Lester A. Lewis, P.A., Daytona Beach, for Defendant.

ORDER GRANTING PLAINTIFF’SDAUBERT/FRYE MOTION TO EXCLUDE THETESTIMONY OF DAVID GUSHUE, Ph.D

THIS CAUSE came on before the Court upon Plaintiff’s Daubert/Frye Motion to Exclude the Testimony of David Gushue, Ph.D, the Defendant’s Biomechanical Expert, on August 22, 2015. Having considered the Motion, Memorandum, Response, Deposition of Dr. Gushue, the report of Dr. Gushue, argument of counsel, the relevant legal authority, and the detailed affidavit of Dr. Gushue filed on August 19, 2016, the Court makes the following findings of fact and conclusions of law:

This case involves damages resulting from a motor vehicle crash wherein the the Plaintiff was a passenger in a vehicle that was struck from behind by a vehicle operated by Logan Atkinson, an uninsured motorist. The Court has previously granted a partial summary judgment on liability to include causation of some loss, injury, or damage.

Dr. Gushue was deposed and provided the following opinions:

#1: “On February 24, 2014, Miss Amanda Knapp¹ was the belted right front seat passenger of a 2010 Ford Fusion, when the front of that 1998 Ford Escort ZX2, came into contact with the rear of the Ford Fusion.” (Deposition of David Gushue, Ph.D, p. 122, lines 14-18).

#2: “The severity of the subject incident is consistent with a Delta V below ten miles per hour, with an average acceleration below 3.6 G, for the subject Ford Fusion in which Miss Knapp was seated.” (Deposition of David Gushue, Ph.D, p. 122, lines 22-25, p. 123, line 1).

#3: “The forces applied to the Ford Fusion during the subject rear end event would tend to move Miss Knapp’s body back toward the seat back structures. These motions would have been limited and well controlled by the seat structures and the three point restraint system.” (Deposition of David Gushue, Ph.D, p. 136, lines 15-21).

#4: “The forces applied to Miss Knapp’s cervical spine as a result of the subject incident were not of sufficient magnitude and direction to create an injury mechanism for the claimed cervical spine injuries.” (Deposition of David Gushue, Ph.D, p. 136, lines 24-25, p. 137).

At no point did Dr. Gushue examine the Plaintiff. (Deposition of David Gushue, Ph.D, p. 90, lines 15-23). Dr. Gushue did not personally inspect either vehicle involved in the crash. (Deposition of David Gushue, Ph.D, p. 76, lines 12-13). The only information regarding the extent of damage to the vehicles was the photographs and an estimate for repairs to the Plaintiff’s vehicle. (Deposition of David Gushue, Ph.D, p. 6, lines 22-25, p. 7, lines 1-7, 17-22). Dr. Gushue specifically said that he was “not in any way trying to recreate what may or may not have happened in this particular case.” (Deposition of David Gushue, Ph.D, p. 207, lines 24-25, p. 208, lines). The Defendant proffers Dr. Gushue’s testimony as regarding general causation and what he would expect somebody in the general population to experience, given the forces he determined. (Deposition of David Gushue, Ph.D, p. 169, lines 10-14).

During his deposition, Dr. Gushue discussed how he arrived at his opinions. He considered the change in velocity and resulting force’s impact on a human body. Injury causation analysis is a stepping stone process. The first step is to perform an energy-based crush analysis on the collision itself to determine the forces in play as well as the principle direction of those forces. In arriving at this result the expert is required to determine a Delta V (change in velocity) of the vehicle in which the plaintiff is an occupant. Then, using certain assumptions, such as the time interval over which the incident took place, the expert calculates a force to the plaintiff’s vehicle.

The second step in the analysis is to attempt to determine, based on the forces exerted on the vehicle and the principal direction of those forces, the kinematic response of the occupant. With this information, the expert says he can determine the forces on the individual occupant.

The third step in the analysis is to determine, based on the forces assumed on the occupant, whether such force was sufficient to cause the injuries alleged by the occupant or to create a mechanism of injury.

This Court has carefully reviewed the deposition transcript of Dr. Gushue, the affidavit of Dr. Gushue, the report of Dr. Gushue, and finds that all three steps of his injury causation analysis are based on insufficient facts. The record is replete with concessions that Dr. Gushue did not have specific information about the Plaintiff, the vehicle, and the crash itself. Dr. Gushue did not speak to the drivers of either vehicle or any other eyewitnesses in the case. (Deposition of David Gushue, Ph.D, p. 90, lines 3-8). Dr. Gushue makes the assumption that Ms. Park was seated normally in her seat at the time of the crash based on the absence in her testimony regarding something abnormal. (Deposition of David Gushue, Ph.D, p. 92, lines 1-20). Dr. Gushue did not personally inspect the Plaintiff’s vehicle, the seat belt, the seat buckle, the lap plate, the seat belt webbing, the D-ring, the seat base, the head rest. (Deposition of David Gushue, Ph.D, p. 64, lines 10-25, p., 65, lines 1-17). Dr. Gushue did not know the seat back angle was for the passenger seat. (Deposition of David Gushue, Ph.D, p. 66, lines 7-10). Dr. Gushue did not know the seat track position for Ms. Park’s seat. (Deposition of David Gushue, Ph.D, p. 68, lines 4-7). Dr. Gushue did not obtain any black box data for the 2010 Ford Fusion. (Deposition of David Gushue, Ph.D, p. 68, lines 11-13). Dr. Gushue did not inspect the interior of the vehicle for damage; and did not inspect the headliner, windshield, instrument cluster, or speedometer. (Deposition of David Gushue, Ph.D, p. 123, lines 3-8). Dr. Gushue did not personally examine the frame of either vehicle and did not examine the rear bumper of the Ford Fusion. (Deposition of David Gushue, Ph.D, p. 76, lines 16-22). Dr. Gushue did not personally measure crush damage on each vehicle. (Deposition of David Gushue, Ph.D, p. 123, lines 3-8). Dr. Gushue did not know the loaded weight of the Ford Fusion and did not know the bumper height. (Deposition of David Gushue, Ph.D, p. 77, lines 23-25, p. 78, lines 1-21). Dr. Gushue did not measure any skid marks at the scene. (Deposition of David Gushue, Ph.D, p. 78, lines 7-8). Dr. Gushue did not specifically calculate the angle of impact. (Deposition of David Gushue, Ph.D, p. 150, lines 19-21).

Moreover, Dr. Gushue’s opinions are based on the use of dissimilar tests. His methodology lacks general acceptance in the relevant scientific community. Furthermore, Dr. Gushue lacks the expertise to render medical opinions. A review of each step outlines the flaws in each step, although a flaw in any one of the steps will negate any ultimate opinion that the forces are insufficient to cause an injury.STEP 1

Dr. Gushue testified that he performed an energy based crush analysis which he said was derived from the EDCRASH computer program. (Deposition of David Gushue, Ph.D, p. 12, lines 2-9). He first looked at and analyzed photographs of the vehicles involved. (Deposition of David Gushue, Ph.D, p. 89, lines 23-24). He then inputted different crush measurements into the EDCRASH computer program to calculate the Delta V based on the crush measurement. Then, he incorporated that into his overall analysis to settle on, or determine what the Delta V was. (Deposition of David Gushue, Ph.D, p. 89, lines 12-18). However, Dr. Gushue later testified that he did not have a specific calculation as to the Delta V in this case. He simply opined that it was below ten miles per hour. (Deposition of David Gushue, Ph.D, p. 123, lines 3-8).

Dr. Gushue conceded that he did not know much about the photographs that he relied on in estimating crush damage. He did not know who took the photographs, what kind of camera was used, what the distance was between the photographer and the object in the photographs, and what type of lens was used. (Deposition of David Gushue, Ph.D, p. 162, lines 3-20).

Dr. Gushue analyzed how much crush deformation there would be to the rear of the Ford Fusion had it sustained a ten mile an hour Delta V. He testified that it would have been six inches of permanent residual crush along the entire rear. He then opined that six inches of crush damage was not consistent with the evidence in this case, presumably based on his review and analysis of the photographs. (Deposition of David Gushue, Ph.D, p. 123, lines 20-25).STEP 2

Dr. Gushue described in generalities the kinematic response of Ms. Park. He testified that Ms. Park’s body was at rest. The vehicle she was in was struck from behind and pushed forward, and her body moved inside that vehicle. Based on the fundamental laws of physics, her motion was backwards, meaning into the seat back. (Deposition of David Gushue, Ph.D, p. 123, lines 20-25). Implicit in Dr. Gushue’s analysis is the assumption that the Delta V and average acceleration experienced by the 2010 Ford Fusion were the exact same Delta V and average acceleration that were experienced by Ms. Park’s neck. Nowhere in the materials in this record does Dr. Gushue explain why this is a reasonable assumption.

Furthermore, the data that Dr. Gushue relied upon to determine the effect of varying body positions was based upon tests that he conducted on crash test dummies that had the specifications of 50th percentile males. (Deposition of David Gushue, Ph.D, p. 119, lines 8-18). Dr. Gushue wrote an article based on those tests, which was presented at a conference, but not published in a peer-reviewed journal. (Deposition of David Gushue, Ph.D, p. 114, lines 6-14). Dr. Gushue testified that he considers his own article to be authoritative. (Deposition of David Gushue, Ph.D, p. 116, lines 3-5). When asked whether he was aware of any other articles studying the effect of different body angles or different positions and how that affects injuries, Dr., Gushue made a vague reference to another article, but he could not recall thae name of the author. (Deposition of David Gushue, Ph.D, p. 117, lines 7-14).

The Court finds that Dr. Gushue’s opinions with respect to the kinematic response of Ms. Park were unreliable because the opinions were based on dissimilar tests involving crash test dummies with different specifications than Ms. Park. Furthermore, the only research that Dr. Gushue was able to cite to support his opinion regarding the effect of different body angles and how it affects injuries was an article that he wrote.STEP 3

In order to determine whether the forces involved were sufficient to cause injury to Ms. Park, Dr. Gushue relied on studies that were done on cadavers to determine how much force is required to herniate a disc. (Deposition of David Gushue, Ph.D, p. 153, lines 19-25). He conceded that in those studies done on cadavers, not all of them involved situations where MRIs were performed on the cadavers before the testing was done. (Deposition of David Gushue, Ph.D, p. 154, lines 9-13). He also testified that he does not know how many cadavers were used in the studies that he referenced. (Deposition of David Gushue, Ph.D, p. 155, lines 2-5). He also testified that most cadaveric papers do not include young individuals. (Deposition of David Gushue, Ph.D, p. 156, lines 8-10). He then goes on to stay that it takes more force to cause a herniation in an 80 year-old than a 39 year-old. (Deposition of David Gushue, Ph.D, p. 157, line 25, p. 157, lines 1-11). Finally, he testified that the cadaver studies that he relied upon to determine how much force is necessary to herniate a disc involve tests that were not done on cadavers in motor vehicles with rear end impacts, but were instead based on taking spines out of cadavers and compressively squeezing the spine together. (Deposition of David Gushue, Ph.D, p. 160, lines 11-25, p. 161, lines 1-21).

DAUBERT STANDARDS

The issue of whether a witness is qualified to render an expert opinion is an evidentiary question, procedural in nature, and governed by the law of the forum Morris vs. LTV Corp., 725 F.2d, 1024, 1030 (5th Cir. 1984). For years, Circuit Court judges, when faced with the issue of the qualifications and substantive support for the admissibility of expert testimony followed the principles set forth in Frye vs. United States, 293 F. 1013 (D.C. Cir. 2912). However, effective July 1, 2013, Section 90.702, Florida Statutes was amended to reflect the previous Frye standard would be supplanted with the analysis set forth under Daubert vs. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny (the “Daubert standard”). See, e.g., Kumho Tire Co, Ltd. vs. Carmichael, 526 U.S. 137 119, S.Ct. 1167 (1999); United States vs. Frazier, 387 F.3d 1244 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C1132a]².

The new Florida statute is patterned after Rule 702, Federal Rules of Evidence, in that the federal courts had long utilized the Daubert standard. This new version Section 90.702, Florida Statutes, states as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods, and;

(3) The witness has applied the principles and methods reliably to the facts of the case.

If technical, scientific or other specialized knowledge will assist the trier of fact in understanding evidence or determine a fact at issue, a witness may serve as an expert by knowledge, skill, experience, training, or education and testify in the form of opinions. Fed. R. Evid. 702. Under the Daubert standard, in order to testify in accordance with Rule 702 an expert must offer opinions that are scientifically trustworthy or reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 589 (1993). The Federal Rules impose a special obligation upon a trial judge to “ensure that any and all scientific testimony. . . is not only relevant, but also reliable.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) quoting Daubert, 509 U.S. at 589 (1993).

As such, the court serves an important function as gatekeeper charged with screening out experts whose methods are untrustworthy. Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007) [20 Fla. L. Weekly Fed. C243a]. In making the determination of whether expert testimony may be admitted, the trial court must engage in a “three-part inquiry” of whether:

1. the expert is qualified to testify competently regarding the matters he intends to address;

2. the methodology by which the expert reaches his conclusions is sufficiently reliable; and

3. the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998).

The Eleventh Circuit refers to each of these requirements as the “qualifications,” “reliability,” and “helpfulness” prongs. U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C1132a]. While there is some overlap among these requirements, the court must individually analyze each prong. Id.

In functioning as a gatekeeper, the court must focus on the principles, methodology, and data on which the expert relies. Daubert, 509 U.S. at 592-93. An expert’s testimony carries great weight and importance, “[i]ndeed, because expert testimony can be very powerful, it is essential to ensure that only scientifically reliable methods are used to produce the opinions offered to a jury.” Morehouse v. Louisville Ladder Group, LLC, 2004 WL 2437196 (June 28, 2004). The Court should not place emphasis on an expert’s qualifications, because the relevant inquiry surrounding Rule 702 is reliability. Rushing v. Kansas City Southern Ry. Co., 185 F. 3d 496, 507 (5th Cir. 1999). Because of this inquiry, well qualified experts may offer opinions that simply do not meet the Daubert standard of reliability. Moore v. Ashland Chemical Inc., 151 F.3d 269, 273 (5th Cir. 1998). “Vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Quiet Technology DC-8 Inc. v. Hurel-Dubois, UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C503a] (quoting Daubert, 509 U.S. at 596). In admitting an expert’s opinion, a preponderance of proof must be established. Daubert 509 U.S. at 592 n.10. Nonetheless, the trial court’s gatekeeping function requires more than taking an “expert’s word for it;” instead, the court must determine the reliability of scientific expert opinion by assessing “whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.” Frazier, 387 F.3d at 1261-62 (quoting Daubert, 509 U.S. at 590)).

Several factors are considered in making the determination regarding whether an expert will be permitted to testify as to a particular theory, these include: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether a theory or technique has general acceptance in the scientific or technical field. Daubert, 509 U.S. at 593-94. The Advisory Committee’s notes to the 2000 Amendments provides a list of additional factors that were gleaned from case law, these include: (6) whether the experts have developed their opinions out of their independent research or expressly for purposes of testifying; (7) “[w]hether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;” (8) whether the expert has considered obvious alternative explanations; (9) [w]hether the expert ‘is being as careful as he would be in his regular professional work outside his paid litigation consulting;’ ” (10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give or is a discipline which itself lacks reliability. Fed. R. Evid. 702 Advisory Committee Note (2000). It is important to note that these factors are neither determinative nor exclusive. Daubert, 509 U.S. at 593. The Advisory Committee notes go on to state that “[o]ther factors may also be relevant. . . yet no single factor is necessarily dispositive of the reliability of a particular expert’s testimony.” Id.

The trial court’s gatekeeping function requires more than simply ‘taking the expert’s word for it.’ ” Fed. R. Evid. 702 Advisory Committee Note (2000). Courts have consistently held that “A supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based on some recognized scientific method.” McDowell v. Brown, 392 F. 3d 1283, 1298 (11th Cir. 2004) [18 Fla. L. Weekly Fed. C92a] quoting Clark v. Takata Corp., 192 F.3d 750, 759 n. 5 (7th Cir. 1999).

DAUBERT ANALYSIS

A review of Dr. Gushue’s deposition reveals that he gives contradictory testimony regarding whether his opinions relate to general or specific causation. He initially states the following, “Sir, that I have, with respect to causation of these injuries, is that they were not caused by this motor vehicle accident.” (Deposition of David Gushue, Ph.D, p. 47, lines 11-13). He then goes on to say that he is not trying to recreate in any way what may or may not have happened in this particular case. ((Deposition of David Gushue, Ph.D, p. 207, lines 207). He then follows up that testimony by saying that his opinions relate to general causation and the impact on the general population. (Deposition of David Gushue, Ph.D, p. 208, lines 3-6).

The Court specifically finds that under Daubert, Dr. Gushue is not qualified to testify competently regarding the medical opinions he intends to address, including the medical opinions regarding the causation of herniated discs. See generally Mattek v. White, 695 So. 2d 942 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1617b] and Grenitz v. Tomlian, 858 So. 2d 999, 1000 (Fla. 2003) [28 Fla. L. Weekly S495a].

The Court also finds that under Daubert, the methodology by which Dr. Gushue reaches his conclusions is not sufficiently reliable. The Court also finds that Dr. Gushue’s testimony will not assist the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998).

This Court takes seriously its gatekeeping function under Daubert and its progeny. In its analysis, this Court has focused on the principles, methodology, and data on which Dr. Gushue has relied. This Court specifically finds that there has been no record evidence presented, other than the ipse dixit testimony of Dr. Gushue, to establish that the principles and methodology that Dr. Gushue used in this case are generally accepted in the relevant scientific community. The Court finds that the Defendant has not met its burden under Ramirez v. State, 810 So. 2d 836 (Fla. 2001) [27 Fla. L. Weekly S221b] to present the testimony of impartial experts or scientists to provide independent and impartial proof of general scientific acceptability. With respect to the data on which Dr. Gushue has relied, this Court finds that in all of the three steps of the injury causation analysis, the data relied upon is insufficient, speculative, and unreliable.

Even assuming that the principles used by Dr. Gushue were reliable, which in this record is only established by the ipse dixit testimony of Dr. Gushue, the Court finds that the methodology was not reliable as applied to the facts of this case. Further, the principles and methods used by Dr. Gushue were not applied to the specific facts of this case, including the circumstances of this collision, the position of the Plaintiff at the time of the collision, or any body specific factors of Ms. Park. As a result, it has not been shown that Dr. Gushue’s testimony would aid a jury in making factual determinations in this case.

FRYE STANDARDS

Although the legislature has mandated the use of the Daubert standard, the Florida Supreme Court and the Florida Bar would seemingly prefer to use the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). “Frye requires the trial judge, as gatekeeper, to draw three conclusions before allowing an expert to testify. The judge must: 1. Determine whether the proposed testimony will assist the jury in understanding the evidence or in determining a fact in issue; 2. Decide whether the expert’s testimony is based on a scientific principle or discovery that has gained general acceptance in the particular field in which it belongs; and 3. Determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue.” State v. Demeniuk, 888 So. 2d 655, 658 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1971a].

When applying the Frye test, “the burden is on the proponent of the evidence to prove [by the greater weight of the evidence] the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Ramirez II, 61 So. 2d at 1168. This requires more than “[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles,” particularly “if the witness’s application of these principles is untested and lacks indicia of acceptability” or “if the expert has a personal stake in the new theory or is prone to an institutional bias.” Ramirez v. State, 810 So. 2d 836, 844, 844 n. 13 (Fla. 2001) [27 Fla. L. Weekly S221b] (Ramirez III). As our Supreme Court has emphasized, “general scientific recognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation. Id at 851.” Sybers v. State, 841 So. 2d 532, 542 (Fla. 1st DCA 2003) [28 Fla. L. Weekly D596a].FRYE ANALYSIS

Should the Frye standard be applied in this case, the Court finds that Dr. Gushue’s opinions would still be inadmissible. The opinions as to the general population would not be helpful to a jury to determine facts at issue. Further, aside from Dr. Gushue’s ipse dixit testimony, there was no evidence submitted that supports a finding that the principles and methods used by Dr. Gushue are generally accepted as a means of a biomechanical expert opining as to injury causation under the specific facts of this case. Finally, under Frye, this Court specifically finds that Dr. Gushue is not qualified to render an opinion as to whether the subject motor vehicle crash caused the disc herniations in question.

SECTION 90.403, FLORIDA STATUTES

Notwithstanding the admissibility pursuant to either Daubert or Frye, the evidence must still pass an analysis pursuant to Section 90.403, Florida Statutes, which provides:

“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” This Court finds that Dr. Gushue’s opinions as to general causation and the general population would improperly mislead the jury. Applying an injury causation analysis to predict or to analyze potential injuries to a specific plaintiff was not shown to be a methodology generally accepted in the scientific community. Simply too many plaintiff-specific variables were never considered in this case. A “hypothetical plaintiff” analysis is misleading and would not assist the trier of fact in this case. To be useful, the hypothetical plaintiff would have to come from the study/analysis of similarly structured plaintiffs (age, weight, build, etc.).

Opinions that it is unlikely that the injuries suffered by the Plaintiff in this case would have been caused by this accident or that the collision did not result in the mechanism of injury to a member of the general population would be of no assistance to the fact finder in this case, especially when the Court has already determined as a mater of law that the subject motor vehicle crash was the legal cause of some loss, injury, or damage to the Plaintiff. The determination of the severity of the injury suffered is properly left within the province of the jury with the assistance of proper medical testimony.

The Court finds that Dr. Gushue’s opinion evidence will not assist the trier of fact in understanding the evidence or in determining a fact in issue. See Section 90.702, Florida Statutes.

Furthermore, this Court finds that Dr. Gushue’s opinion evidence presents a substantial danger of unfair prejudice that outweighs its probative value. See Section 90.403, Florida Statutes.

The Court finds that Dr. Gushue’s opinion evidence lacks a predicate of reliability, which is fundamental to issues involved in the admissibility of evidence. Hadden v. State, 690 So. 2d 573 (Fla. 1997) [22 Fla. L. Weekly S55c].

The Court finds that Dr. Gushue’s opinion evidence is based on speculation, founded on assumptions lacking a sufficient factual basis. Carrier v. Ramsey, 714 So. 2d 657 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1802a]. Delta Rent-A-Car, Inc. v. Rihl, 218 So. 2d 469 (Fla. 4th DCA 1969).

The Court finds that Dr. Gushue’s opinion relies on dissimilar tests lacking sufficient similarities. Dempsey v. Shell Oil Co., 589 So. 2d 373 (Fla. 4th DCA 1991).

The Court finds that Dr. Gushue’s opinions fail to account for disregarded variables necessary to arriving at a reliable opinion. Tittsworth v. Robinson, 252 Va. 151, 475 S.E.2d 261 (1996).

The Court considered as persuasive authority several cases involving injury causation analysis and biomechanical engineers that have been decided in Brevard County, Florida, including:

1. Mullinix v. McCoy, 05-2013-CA-39180, in which Judge John Harris struck Dr. David Gushue;

2. Corapi v. Spontak, 05-2001-CA-5915 in which Judge Charles Holcomb struck Dr. Richard Harding;

3. Van Kramer v. Edelan, 05-2004-CA-13147 in which Judge George Turner struck Dr. Richard Harding;

4. Andrews v. McPartland, 05-2004-CA-011325 in which Judge Robert Wohn struck Dr. Richard Harding;

5. Parenti v. Property and Casaulty Insurance Company of Hartford, 05-2009-CA-070824, in which Judge Charles Roberts struck Dr. Richard Allnut, and

6. Foster v. Nagy, 05-2011-CA-08585, in which Judge Edward Richardson struck Dr. William Lee.

Based on the Motion, Memorandum, Response, Deposition of Dr. Gushue, the report of Dr. Gushue, argument of counsel, the relevant legal authority, and the detailed affidavit of Dr. Gushue filed on August 19, 2016, it is hereby

ORDERED AND ADJUDGED that Plaintiff’s Daubert/Frye Motion to Exclude the Testimony of David Gushue, Ph.D, is hereby GRANTED.

__________________

¹Amanda Knapp is the former name of the Plaintiff, Amanda Park.

²The Court is mindful of the argument raised by Plaintiff’s counsel at the hearing that because Section 90.702, Florida Statutes, is a rule of evidence, and therefore procedural in nature, it is at least arguable that Frye still applies because the Florida Supreme Court has not specifically adopted Section 90.702, Florida as a rule of procedure. Notwithstanding the fact that the Florida Supreme Court has yet to adopt Section 90.702, Florida Statutes as a rule of evidence, the Fourth District Court of Appeal has applied Daubert as the appropriate standard. See Bunin v. Matrixx Initiatives, Inc., No. 4D14-3579, 2016 WL 3090777, (Fla. 4th DCA 2016) [41 Fla. L. Weekly D1308a].