Jacqueline Huggins, individually, and with Alexander Huggins, as Mother and Father and Next Friends of A.R.H., a minor child v. Jeffrey Siegel, individually

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D19-3987

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JACQUELINE HUGGINS,

individually, and with

ALEXANDER HUGGINS, as Mother

and Father and Next Friends of

A.R.H., a minor child,

Appellants,

v.

JEFFREY SIEGEL,

Appellee.

_____________________________

On appeal from the Circuit Court for Alachua County.

Donna M. Keim, Judge.

September 15, 2021

ON MOTION FOR REHEARING, CLARIFICATION, AND CERTIFICATION

B.L. THOMAS. J.

On consideration of Appellant’s motion, this Court grants the

motion for clarification, denies the motion for rehearing,

withdraws the opinion filed June 3, 2021, and substitutes the

following opinion in its place.

Appellants rented a house on Appellee’s property from August

2015 through December 2017. Appellants complained about

potential water intrusion and mold before moving into the home,

and again in July or August of 2017. When Appellee refused to

have the house inspected, Appellants hired their own mold

inspection company. The inspection report indicated that multiple

mold types, including two toxic molds—aspergillus and

penicillium—were present in the home. After receiving the mold

report, Appellants vacated the property.

Appellants alleged that Appellee’s negligence as a landlord

exposed Mrs. Huggins to dangerous mold while she was pregnant

with one of Appellants’ children. Throughout Mrs. Huggins’s

pregnancy, ultrasounds showed that the child was forming two

kidneys, but when the child was born it had only one kidney, a

condition known as renal agenesis. The child also exhibited signs

of brain injury. The child’s medical conditions caused Mrs.

Huggins severe emotional distress.

Appellants retained a medical expert to testify about the issue

of causation. Approximately a month before the pretrial

conference, Appellee moved to exclude Appellants’ expert’s

testimony. The trial court’s pretrial scheduling order advised that

all motions were to be heard and filed before the pretrial

conference including motions in limine, objections to deposition

exhibits, and (Daubert) motions.

Following a non-evidentiary hearing, the trial court granted

Appellee’s motion to exclude the expert testimony. The trial court

rejected Appellants’ argument that the motion was untimely

because it was filed within the time allowed by the pretrial

scheduling order. The trial court also found that the expert was

not qualified to testify on causation and his testimony was neither

reliable nor valid under Daubert. Following the trial court’s ruling,

Appellants did not move for a continuance to acquire a new expert

or request another form of relief from the trial court.

Appellee moved for summary judgment on all remaining

claims and Appellants conceded that without their expert’s

testimony they were unable to assert a genuine issue of material

fact on the issue of causation. The trial court granted Appellee’s

motion for final summary judgment.

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On appeal, Appellants challenge the trial court’s decision

granting Appellee’s Daubert motion to exclude the testimony of

Appellants’ expert medical witness. Appellants challenge the

timeliness of Appellee’s Daubert motion, the proper standard of

review for Daubert decisions, and whether the trial court properly

excluded the expert’s testimony.

Timeliness

Appellants argue that Appellee’s Daubert challenge was not

timely filed. The focus for determining whether a Daubert motion

is untimely is on when the party became aware of the opposing

party’s expert’s opinion. Booker v. Sumter Cnty. Sheriff’s Office,

166 So. 3d 189, 192 (Fla. 1st DCA 2015). However, a trial court’s

enforcement of its own pretrial order is reviewed for an abuse of

discretion “and reversal is appropriate only when the affected

party can clearly show the abuse resulted in unfair prejudice.”

Gutierrez v. Vargas, 239 So. 3d 615, 622 (Fla. 2018) (emphasis

added).

Here, Appellee waited approximately 230 days after deposing

Appellants’ expert to challenge the expert’s testimony, but he filed

his Daubert motion approximately one month prior to the pretrial

conference and within the time limitation established by the

pretrial scheduling order. Additionally, the trial court held a non-

evidentiary hearing addressing Appellee’s Daubert motion

approximately two weeks before the pretrial conference. Finally,

following the trial court’s ruling excluding the expert testimony,

Appellants failed to move for a continuance or request another

form of relief from the trial court. As a result, Appellants were

unable to “clearly show” that the trial court’s decision to follow its

pretrial scheduling order unfairly prejudiced Appellants. See id.

Standard of Review

The standard of review for a trial court’s Daubert decision is

an abuse of discretion. Kumho Tire Co., Ltd. v. Carmichael, 526

U.S. 137, 152 (1999) (“Our opinion in Joiner makes clear that a

court of appeals is to apply an abuse-of-discretion standard when

it ‘reviews[s] a trial court’s decision to admit or exclude expert

testimony.’” (citations omitted)); see also Booker, 166 So. 3d at 194

n. 2); Baan v. Columbia Cnty., 180 So. 3d 1127, 1131 (Fla. 1st DCA

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2015); Hedvall v. State, 283 So. 3d 901, 911 (Fla. 3d DCA 2019);

Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109, 1110 (Fla. 4th

DCA 2016).

Additionally, Appellants’ reply brief acknowledged that “to

the extent the trial court ruled that [the expert] was unqualified,

that decision should be reviewed for an abuse of discretion.” This

Court’s decision only addresses the qualification prong of Daubert.

Thus, as agreed upon by Appellants, the standard of review is

abuse of discretion.

Application of Daubert to Expert Testimony

“Under Daubert, the trial court not only evaluates a putative

expert’s credentials, but also serves as a gatekeeper in ‘ensuring

that an expert’s testimony both rests on a reliable foundation and

is relevant to the task at hand.’” Baan, 180 So. 3d at 1133 (quoting

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)).

Appellants’ expert is a board certified, licensed physician in the

specialty of obstetrics and gynecology and the subspecialties of

reproductive endocrinology and embryology. However, Appellants

retained him as their causation expert to testify that the mold in

Appellee’s rental home caused their child’s renal agenesis and

brain injury. Despite the expert’s extensive medical resume, he

was not qualified to testify as to causation because he lacked the

experience and knowledge to connect the mold to the child’s

medical conditions. See White v. Ring Power Corp., 261 So. 3d 689,

696–97 (Fla. 3d DCA 2018) (excluding expert witness testimony

where none of the experts had ever interpreted crane-loading data

or used such data to investigate the cause of a crane accident or

wire rope failure).

Appellants’ expert testified that he treated a patient with an

unborn child with renal agenesis during his training, but his

current practice specializes in infertility, and he does not typically

treat patients like Mrs. Huggins. He testified that he has never

been involved in cases involving the disappearance of a kidney in

an unborn child, or cases where a kidney was observed but later

disappeared before birth. Appellants’ expert never attempted to

link mold to unilateral renal agenesis before this case and he never

presented on the topic of mold in the developing kidney. He

admitted that he is not a mold expert and knowledge of mold

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growth is outside his specialty. Additionally, he was unable to find

scientific or medical literature directly linking mold to kidney

disappearance in humans.

A mold expert testified that he believed within a reasonable

degree of scientific probability that mold existed in Appellants’

home while the child was in utero, but he was unable to determine

the quantity of mold that was present or whether the property

would have passed a mold inspection. Thus, even if Appellants’

medical expert had relied on the mold expert’s report, which he did

not, * he did not have enough independent knowledge or additional

expert information to determine whether the mold was the cause

of the child’s renal agenesis and brain injury. Because of the

medical expert’s lack of experience with mold and its ability to

cause renal agenesis, he could only speculate on the issue of

causation and his opinion was “a classic example of the common

fallacy of assuming causality from temporal sequence.” Perez v.

Bell S. Telecomms, Inc., 138 So. 3d 492, 499 (Fla. 3d DCA 2014).

As a result, Appellants’ medical expert was not qualified to testify

regarding causation, despite the minimal qualifications needed

under Daubert.

AFFIRMED.

ROWE, C.J., and M.K. THOMAS, J., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Jordan S. Redavid of Fischer Redavid PLLC, Hollywood, for

Appellants.

* Appellant testified that he received no information reflecting

the condition of the mold in the home during the pregnancy and

when asked how he knew there was mold present during the

relevant period he stated that he relied on basic knowledge and

common sense that “mold doesn’t grow overnight.”

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Rhonda B. Boggess of Marks Gray, P.A., Jacksonville, and

Chandra L. Miller of Goodis Thompson & Miller, P.A., St.

Petersburg, for Appellee.

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