The Court, according to its exclusive rulemaking authority pursuant to article V, section 2(a) of the Florida Constitution, adopts chapter 2013-107, sections 1 and 2, Laws of Florida (Daubert amendments), which amended sections 90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts), Florida Statutes, of the Florida Evidence Code to replace the Frye¹ standard for admitting certain expert

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testimony with the Daubert² standard, the standard for expert testimony found in Federal Rule of Evidence 702.

§ 90.702. Testimony by experts

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.

§ 90.704. Basis of opinion testimony by experts

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

An expert may be qualified by knowledge, skill, experience, training, or education. City of S. Miami v. Desantis, No. 19-CV-22927, 2020 WL 7074644, at *4 (S.D. Fla. Dec. 3, 2020). To satisfy the qualification prong, experts must have "specialized knowledge" regarding their proposed area of testimony. Section 90.702. However, an expert need not have formal education in order to testify. While scientific training or education may provide possible means to qualify, experience in a field may offer another path to expert status. United States v. Frazier, 387 F.3d 1244, 1260-61 (11th Cir. 2004) (en banc); see also section 90.702. Moreover, "[a]n expert is not necessarily unqualified simply because [his] experience does not precisely match the matter at hand." City of S. Miami v. Desantis, No. 19-CV-22927, 2020 WL 7074644, at *4 (S.D. Fla. Dec. 3, 2020) (citation omitted). "[S]o long as the expert is minimally qualified, objections to the level of the expert's expertise go to credibility and weight, not admissibility." City of S. Miami v. Desantis, No. 19-CV-22927, 2020 WL 7074644, at *4 (S.D. Fla. Dec. 3, 2020) (citing Ciena Invs., Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)).

Dr. Boesky is certainly qualified to offer opinions on the standard of care when dealing with incarcerated individuals as it relates to suicide risk factors, suicide protective factors and foreseeability. See A.H. v. ST. Louis Cty., No. 4:14-CV-2069 (CEJ), 2016 WL 4269548, at *2 (E.D. Mo. Aug. 15, 2016) (expert's background as a licensed clinical and forensic psychologist with 36 years of experience in correctional settings developing suicide prevention training programs sufficient to qualify him to testify as an expert on suicide prevention in jails pursuant to Rule 702). The Plaintiff's assertion that Dr. Boesky has more experience with juveniles in detention settings goes to the weight of her testimony, not to its admissibility. The Plaintiff can examine her regarding the differences between suicide risks/assessments in juveniles versus adults. Moreover, the Plaintiff takes issue with the fact that Dr. Boesky has not provided direct psychological care to a patient in twenty years. However, that does not render her opinions inadmissible under Daubert. See e.g. White v. Watson, No. 16-CV-560-JPG-DGW, 2018 WL 4326998, at *6 (S.D. Ill. Sept. 10, 2018) (despite the fact that expert had not practiced psychology in an adult prison setting for more than two [*13]  decades, court determined he was qualified through knowledge, skill, experience, training and education). Moreover, in lieu of providing direct patient care, Dr. Boesky provides training to mental health staff that provide direct care to patients. (See Depo Trans., pg. 187/5 -pg. 188/5)

"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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 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,

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despite the minimal qualifications needed under Daubert.

With the foregoing principles of law as a guide, this Court has evaluated the challenged expert and finds that the Defendant has failed to establish by a preponderance of the evidence that Hanada Cox's testimony meets the criteria for admissibility under Florida Statute §90.702 and Daubert. Ms. Cox's testimony is being offered regarding the reasonableness of the medical charges by Plaintiffs providers for the treatment rendered. There is no indication in the record before the Court that she is being offered to testify as to billing or medical coding errors; rather, she will testify that she has determined what the "usual and customary" billing rates are for particular procedures, and compare [*8]  them to the actual bills and perhaps the anticipated medical costs in order to opine as to the reasonableness of those bills.

Certainly, Ms. Cox has an extensive background in medical coding, billing and reimbursement as indicated by both her testimony and her curriculum vitae. Under State Farm Mut. Auto. Ins. Co. v. Bowling, 81 So. 3d 538 (Fla. 2d DCA 2012), she would have the "requisite skill and training to render an opinion on whether the bills submitted by [Plaintiffs] medical providers accurately reflect the care documented in the medical records of those same providers." Bowling at 541. She is most certainly qualified to testify as to any billing mistakes, inconsistencies or coding errors - if those were issues in this case. However, this Court does not find, nor does the case law support, that a medical coding specialist is qualified to testify regarding the usual and customary billing rates for medical procedures.

It is apodictic that expert testimony is not admissible unless the witness has expertise in the area in which he opines. Husky Industries, Inc. v. Black, 434 So. 2d 988, 992 (Fla. 4th DCA 1983). "The qualification of a person as an expert is within the sound discretion of the trial judge." Penalver v. State, 926 So. 2d 1118, 1134 (Fla. 2006). Whether a witness is qualified to render an opinion on a specific subject matter is a question of fact for the trial court. Dedge v. State, 442 So. 2d 429 (Fla. 5th DCA 1983). It is reversible error for a trial court to allow a witness to testify as an expert on matters about which they have no expertise. See Sea Fresh Frozen Products, Inc. v. Albin, 411 So. 2d at 219. Florida courts have also stricken experts witnesses when the expert's opinion was not based on any methodology, literature, or studies. See, e.g., Brito v. County of Palm Beach, 753 So.2d 109 (Fla. 4th DCA 1998); Husky Industries, Inc., 434 So. 2d 988 (Fla. 4th DCA 1983).

William L. Jacobs is not qualified to opine in the area of retail grocery store safety procedures and practices. William L. Jacobs' experience in the retail grocery industry was a one-year period over 30 years ago when he was a corporate safety director for Farm Stores, a chain of drive-thru convenience stores. (William L. Jacobs Deposition 45: 19-21). Farm Stores safety practices or guidelines have no justifiable or practical relation to safety practices in the supermarket context as Farm Stores would not take into account customer slip/falls as the patrons stay [*11]  in their vehicles.

Since 1987, William L. Jacobs' employment in the safety industry has consisted entirely of his own consulting practice, ninety-five percent of which focuses on litigation. (William L. Jacobs Deposition 35: 14-18; 36: 5-8). Over the last five years, one hundred percent of Mr. Jacobs' safety consulting work has been providing "expert" opinions in various types of litigation. (William L. Jacobs Deposition 36: 16-18). Mr. Jacobs has not conducted any inspections for retail grocery stores as part of his safety consulting work. (William L. Jacobs Deposition 37: 9-12). He has never been asked by a supermarket retailer to review their safety policies and provide counseling or guidance related to their policies. (William L. Jacobs Deposition 49: 9-13). In fact, over the past thirty years, Mr. Jacobs has not provided consultation outside litigation for any type of retail store on safety issues. (William L. Jacobs Deposition 51: 3-6). Thus, the extent of Mr. Jacobs' experience as a safety consultant within the supermarket industry has been through testimony in other cases and not actual hands-on knowledge, skill, experience, training, or education. Based on William Jacobs' reasoning, [*12]  he is qualified as a safety expert for the retail grocery market because he has given advice through testimony in other cases. This does not comport with the qualification requirements of knowledge, skill, experience, training, or education as enumerated in Florida Statute § 90.702.