|
31 ELR 20366 | Environmental Law Reporter | copyright © 2000 | All rights reserved U.S. Sugar Corp. v. HensonNo. 1D99-2798 (Fla. Dist. Ct. App. December 29, 2000)The court holds that expert testimony offered by an individual alleging permanent and total disability due to pesticide exposure in the workplace is admissible under Frye v. United States, 93 F. 1013 (D.C. Cir. 1923). The individual brought suit against its employer under the state's workers' compensation statute. The court first certifies to the Florida Supreme Court the question of whether the standards of Frye need to be applied prior to admitting expert opinions concerning novel scientific principles or methodologies in a workers' compensation proceeding. Despite the applicability of Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993), in other circuits, the court recognizes the applicability of Frye in all civil and criminal litigation in Florida. Moreover, Frye's application in workers' compensation cases has been implicitly recognized by the Florida Supreme Court. But the court certifies its question to the Florida Supreme Court due to concerns with the impact of applying Frye in workers' compensation cases. The court next holds that the employer failed to raise its Frye objection in a timely manner. A party who seeks to raise a Frye objection in a workers' compensation proceeding must do so in the pretrial stipulation and at the deposition. Nevertheless, because the individual did not raise the issue of waiver and because the court is able to affirm on the merits of the Frye issue, the court holds that it will not address whether the procedural defects barred the employer's Frye objections. The court also holds that it would not be appropriate in the present case to take judicial notice of the scientific principles and methodology underlying the opinions of the individual's experts. Courts rarely take judicial notice of scientific theory or scientific technique. The court then holds that the Frye standards were met and that the record contains competent substantial evidence to support the finding that to a reasonable degree of medical certainty the individual's disability was caused by his exposure to pesticides during employment. The individual's problems are neurological in nature, and the court noted that it is generally accepted in the scientific literature that the various pesticides to which the individual was exposed are neurotoxic. The lack of epidemiological studies in the record relating to a causal link between chronic pesticide exposures and neurotoxic disease is not fatal to the individual's claims. Additionally, judicial decisions in many jurisdictions have recognized the neurological toxicity of chronic exposure of pesticides. Further, the individual's physicians relied on differential diagnosis in reaching their opinion. The individual's experts reviewed medical test results and the individual's history, examined the individual, and reviewed relevant medical literature that supported the general acceptance of the scientific principles on which they relied. The full text of this decision is available from ELR (43 pp., ELR Order No. L-322). Counsel for Appellant Counsel for Appellee [OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE] 31 ELR 20366 | Environmental Law Reporter | copyright © 2000 | All rights reserved |