CURRENT MONTH (October 2018)

Business Litigation

Florida Supreme Court Rules on Expert Testimony

Ernest Wagner

In a decision that impacts litigation involving expert testimony, the Florida Supreme Court in Richard Delisle v. Crane Co., No. SC16-2182, recently held that the Florida Legislature’s 2013 amendment of the Florida Rules of Evidence adopting the federal Daubert standard for admitting expert testimony was unconstitutional because it conflicted with a procedural rule set by the Florida Supreme Court.  In doing so, the Florida Supreme Court returned Florida to the Frye standard for admitting expert testimony.

As you may recall, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court pronounced the standard to admit expert scientific testimony in federal court holding that that Federal Rules of Evidence 702 had superseded the prior standard to admit expert testimony announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  The Frye Court had held than courts should admit “expert testimony deduced from a well-recognized scientific principle or discovery” that had “gained general acceptance in the particular field in which it belongs.”  Daubert receded from Frye holding that to qualify as admissible “scientific knowledge, an inference or assertion must be derived by the scientific method” shifting the focus from “general acceptance” to “principles and methodology, not on the conclusions that they generate.”

Moving forward in Florida, courts must apply the Frye standard which does not apply “to the vast majority of cases because it only applies when experts render an opinion that is based on new or novel scientific techniques.”  

Thorough Document Searches are Costly but May Save You in the Long Run  

By Peter W. Mueller, Greensfelder, Hemker & Gale, P.C.

In White v. CitiMortgage, Inc., No. 15-0289-CV-W-SRB, 2018 WL 4926306 (W.D. Mo. Oct. 10, 2018), Judge Stephen R. Bough of the Western District of Missouri sanctioned CitiMortgage pursuant to Federal Rules of Civil Procedure 26 and 37 for its four-year delay in locating and producing several supplemental emails belonging to a key fact witness, Amy Cullen.  The Cullen emails, which plaintiff David White described as “highly probative,” were responsive to a June 2014 request for production.  When CitiMortgage supplemented its production in July 2018, White moved for sanctions because the new emails “would have played an important role in several depositions and dispositive motions.”  Notably, it’s not as if CitiMortgage sat on the emails.  Rather, it found them when it renewed and expanded its search after the court decided that Cullen would be allowed to testify despite White’s objections.  CitiMortgage believed its initial email search, though not perfectly exhaustive, was a “reasonable inquiry” under FRCP 26 and that it also had met its duty to promptly supplement.  However, the Court ultimately agreed with White that CitiMortgage’s delay was “neither substantially justified nor harmless” within the meaning of FRCP 37 and ordered sanctions in the form of attorney’s fees related to depositions and a jury instruction stating that “Defendant was required to provide these emails in June 2014 but did not do so until July 2018.”  Thus, the takeaway from this opinion is to perform in-depth document searches related to fact witnesses early, even if the witness’s testimony may later be excluded.

Out-of-State Employee’s Non-Compete Not Subject To Employer’s Choice-of-Law Provision

By Courtney Adair  Greensfelder, Hemker & Gale, P.C.

In Oxford Global Resources, LLC v. Hernandez, 480 Mass. 462 (2018), Oxford, a Massachusetts-based employer, brought suit against Hernandez, a former employee who worked out of one of Oxford’s California offices, after Hernandez began to compete with Oxford in violation of a non-compete. After Oxford sued Hernandez in Massachusetts, Hernandez successfully moved to dismiss the action based upon the doctrine of forum non conveniens. Hernandez appealed, and the Supreme Judicial Court of Massachusetts took the case on its own motion. The Court first considered whether the Massachusetts choice-of-law provision, which provided that it would apply “without giving effect to conflict of laws provisions,” was enforceable. The Court noted that such provisions are generally upheld under Massachusetts law unless doing so would be contrary to public policy. The Court, however, invalidated the choice-of-law provision contained in Hernandez’s employment agreement on the ground that it was against California’s “settled legislative policy in favor of open competition and employee mobility.” Importantly, under California law, with certain exceptions that do not apply to this case, non-competes are void, whereas, under Massachusetts law, non-competes are enforceable so long as they are necessary to protect a legitimate business interest and reasonably limited in time and scope.

This case serves as a good reminder for employers that choice of law provisions contained in employment agreements are subject to challenge from employees who live or work in another jurisdiction. Thus, even well-drafted choice-of-law provisions may not be enforced in disputes with out-of-state workers.


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