Opinion
Case No. 2D19-2399
05-05-2021
Angel MARTINEZ and Maria Elena Martinez, Appellants, v. LOBSTER HAVEN, LLC, Appellee.
Brent G. Steinberg, Brandon G. Cathey, and Daniel L. Greene of Swope, Rodante, P.A., Tampa, for Appellants. Alexandra Valdes and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellee.
Brent G. Steinberg, Brandon G. Cathey, and Daniel L. Greene of Swope, Rodante, P.A., Tampa, for Appellants.
Alexandra Valdes and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellee.
BLACK, Judge.
Angel and Maria Martinez challenge the final judgment entered in favor of Lobster Haven, LLC. The Martinezes contend that the trial court erred in granting Lobster Haven's posttrial motion for entry of judgment in accordance with the motion for a directed verdict. We agree.
I. Background
"The rules governing a posttrial motion for judgment in accordance with a previous motion for directed verdict are the same as those governing a motion for a directed verdict at the close of the evidence." Greene v. Flewelling, 366 So. 2d 777, 779-80 (Fla. 2d DCA 1978) (first citing Hendricks v. Dailey, 208 So. 2d 101, 103 (Fla. 1968) ; and then citing Hall v. Ricardo, 331 So. 2d 375, 376 (Fla. 3d DCA 1976) ). Accordingly, in reviewing the propriety of the order granting judgment in accordance with the motion for a directed verdict in this case, we view factually conflicting evidence in favor of the Martinezes. See Sims v. Cristinzio, 898 So. 2d 1004, 1006 (Fla. 2d DCA 2005).
On December 21, 2013, the Martinezes had a seafood dinner, including raw oysters, at Lobster Haven. That night and the following day, the Martinezes were ill. It was undisputed that Mr. Martinez suffered from a gastrointestinal illness that began on December 21. On December 24, 2013, Mr. Martinez experienced more severe gastrointestinal symptoms and did not feel well until December 31. On January 4, 2014, two weeks after his dinner at Lobster Haven, Mr. Martinez began experiencing pain, numbness, and weakness in his legs and feet. Mr. Martinez was seen at the hospital on three occasions and was admitted to the hospital on January 9. He was ultimately diagnosed with Guillain-Barré Syndrome (GBS), a disorder in which the body's immune system attacks the nerves. It was undisputed that Mr. Martinez had GBS. Mr. Martinez was not discharged from the hospital until February 21. In August 2015, the Martinezes sued Lobster Haven, alleging that the restaurant had served them contaminated seafood that was a legal cause of Mr. Martinez's GBS.
The case went to trial in August 2017. During that trial, the Martinezes presented expert testimony from Dr. Michael Freeman, an epidemiologist. Lobster Haven had previously filed a motion to strike Dr. Freeman as an expert witness or, alternatively, in limine to preclude Dr. Freeman from testifying to his opinion on causation. The motion in limine was based on what Lobster Haven identified as impermissibly stacked inferences used to form Dr. Freeman's opinion. The inferences identified by Lobster Haven were (1) that the oysters served to Mr. Martinez by Lobster Haven contained bacteria or a pathogen; (2) that the level of bacteria or pathogen present was sufficient to cause a gastrointestinal infection (GI infection); and (3) that the GI infection caused GBS. In opposing Lobster Haven's motion, the Martinezes primarily contended that Lobster Haven's argument was not a pretrial issue determinable by a motion to strike or a motion in limine. Rather, the issue could and should be addressed on cross-examination of Dr. Freeman and via a motion for a directed verdict. The Martinezes represented that Dr. Freeman's testimony would address whether the food at Lobster Haven caused the December 21 GI infection which then caused the GBS. Both parties' characterizations of the issue establish that the foundational fact which the Martinezes were required to prove was that the food served by Lobster Haven and consumed by Mr. Martinez was defective and caused the December 21 GI infection. Lobster Haven's motion was denied, and Dr. Freeman was permitted to testify at trial.
At no time prior to the verdict being returned did Lobster Haven challenge Dr. Freeman's opinion testimony pursuant to section 90.702, Florida Statutes (2017), or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the then-applicable law.
The 2017 trial resulted in a deadlocked jury, and the court granted a mistrial. A new trial was set for May 2018. At the final pretrial hearing before the 2018 trial, the parties discussed various stipulations including preservation of issues from the 2017 trial. Counsel for the Martinezes deferred to Lobster Haven's counsel to explain the stipulation reached by the parties; Lobster Haven's counsel advised the court:
[T]here were several evidentiary issues in the case that we had, I think, a day-long motion in limine hearing. And what we had discussed is instead of having to reargue those, to make sure that both sides have preserved those for any appellate issues that might come up, to just adopt the Court's prior rulings regarding evidence, regarding the jury instructions that we went through; and both sides have just preserved their previous objections or motions in limine that we had argued.
Importantly, prior to the 2018 trial, Lobster Haven stipulated that the food it had served to the Martinezes had "a defect." That is, Lobster Haven admitted that its food caused the December 21 food poisoning. Lobster Haven's counsel repeatedly asserted during the 2018 trial that Lobster Haven was not contesting that the food served to Mr. Martinez led to the December 21 GI infection.
Although there was some discussion at oral argument as to this stipulation, the record reflects that the parties and the court understood that food poisoning is the widely used term for a gastrointestinal infection. The parties and the experts interchanged "food poisoning," "gastrointestinal illness," and "gastrointestinal infection" without distinction throughout the proceedings. Thus, Lobster Haven admitted that its defective food caused Mr. Martinez's December 21 GI infection.
In his testimony at the 2018 trial, Dr. Freeman opined that the December 21 GI infection—the GI infection Lobster Haven stipulated that it had caused—was the event that caused Mr. Martinez's GBS. In reaching that opinion, Dr. Freeman testified that he did not know what bacteria or pathogen was in the food served to Mr. Martinez by Lobster Haven or which of the foods that Mr. Martinez had consumed caused the GI infection. He also testified, however, that it was the GI infection and more precisely Mr. Martinez's immune system response to the infection that was the cause of the GBS.
While acknowledging that the preceding cause of GBS is unknown in about 20% of cases, Dr. Freeman stated that when a GI infection "precedes GBS by anything less than three or four or five weeks ... the relationship between the two is always going to be considered causal." That is, "whatever was in th[e] meal accounts for 100% of the explanation of [the GI infection] which accounts for 100% of the explanation for [the GBS]"; "[w]hen a GI infection precedes GBS, 100% of the time you are going to attribute the GBS to the infection." Dr. Freeman further testified that although a second GI infection was possible, it was very unlikely and "certainly not a more likely explanation" for the GBS than the December 21 GI infection. Dr. Freeman saw "no evidence of likelihood" of a second GI infection in this case.
The Martinezes also presented the testimony of Dr. Adam Didio. Dr. Didio testified as an expert and as one of Mr. Martinez's treating physicians. He is a neurologist familiar with GBS, having treated approximately 140 patients with the disorder. In addition to providing details regarding Mr. Martinez's symptoms and prognosis, Dr. Didio gave his expert opinion that Mr. Martinez's GBS was "directly caused or triggered from his gastrointestinal illness" which began on December 21, 2013. Dr. Didio testified that the majority of patients with GBS report having had an infection, most often a GI infection, in the weeks preceding the onset of the GBS symptoms and that Mr. Martinez's December 21 GI infection fit the timeframe. He also stated that he did not know which pathogen might have caused Mr. Martinez's GI infection but that identifying the pathogen has no bearing on the outcome; the infection, and more specifically the body's immune system response to the infection, is what causes GBS.
Lobster Haven presented the expert testimony of Dr. Kenneth Gorson. Dr. Gorson described GBS as an autoimmune disease, with two-thirds of the cases having an identifiable immunological trigger—an infection. He testified that in those cases it is the patient's immune response to the infection that triggers GBS. Dr. Gorson agreed with Dr. Freeman that in the remaining cases the cause of GBS is unknown; that is, an infection did not precede the onset of GBS symptoms. He also agreed with Dr. Freeman that GBS is not linked to a single bacteria or pathogen but testified that knowing which bacteria was present in food would be "good" or helpful for purposes of understanding "the mechanism of the illness." Dr. Gorson testified that there is a particular bacteria that causes GI infections and is "disproportionately" linked to triggering GBS. His opinion was that the oysters served by Lobster Haven had not caused Mr. Martinez's GBS; he did not give an opinion on whether the December 21 GI infection caused the GBS. Dr. Gorson also testified that people suffering from a GI infection did not typically "get back to normal" and then experience a resurgence of symptoms; but he agreed that it was more plausible to have vacillating symptoms of a single GI infection than to have a complete recovery from one GI infection only to develop a second GI infection within two days.
Dr. Freeman, Dr. Didio, and Dr. Gorson were not the only witnesses at the 2018 trial. Significant testimony and evidence was presented. Lobster Haven presented evidence suggesting that a second GI infection, occurring between the date that Mr. Martinez ate at Lobster Haven and the date he began having symptoms of GBS, caused his GBS. That evidence and other disputed facts relevant to causation are not detailed here because they are not necessary to our resolution of the issues before us. We note, however, that while Lobster Haven's arguments rest largely on the evidence that there had been no recorded case of GBS being preceded by an infection caused by the bacteria most associated with raw oysters, Lobster Haven's theory—that Mr. Martinez suffered from a second GI infection resulting from Mr. Martinez's possible exposure to the bacteria disproportionately linked to GBS through his work as a rancher—was likewise not supported by a single reported case.
The jury was instructed that Lobster Haven had served defective food to the Martinezes and that
[a] defective product is a legal cause of loss, injury, or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the defect or negligence, the loss, injury or damage would not have occurred.
In order to be regarded as a legal cause of loss, injury or damage, a defect need not be the only cause. A defect may be a legal cause of loss, injury or damage even though it operates in combination with some natural cause or some other cause if the defect contributes substantially to producing such loss, injury or damage.
The only question presented to the jury on the verdict form, other than damages-related determinations, was whether the defective food was a legal cause of Mr. Martinez's GBS.
A verdict in favor of the Martinezes was returned. Lobster Haven then filed a motion for entry of judgment in accordance with the motion for a directed verdict or, alternatively, motion for new trial and motion for remittitur. Lobster Haven had not moved for a directed verdict during the 2018 trial. However, in its motion for entry of judgment in accordance with the motion for a directed verdict, Lobster Haven argued that its motion for a directed verdict in the 2017 trial carried over to the 2018 trial through the stipulation placed on the record prior to the 2018 trial. Lobster Haven asserted that a directed verdict was appropriate because Dr. Freeman's testimony was "a chain of inferences and plain guesswork." Specifically, Lobster Haven contended that there was no evidence to support the conclusion that Mr. Martinez's consumption of raw oysters caused his GBS. In opposition to the motion, the Martinezes argued that Lobster Haven's failure to move for a directed verdict during the 2018 trial precluded consideration of its posttrial motion, that the Martinezes did not stipulate that Lobster Haven's 2017 motion for a directed verdict would carry over to the 2018 trial, and that the facts and evidence had changed between the 2017 and 2018 trials such that a motion testing "the sufficiency of the evidence presented during the first trial would have no bearing on the sufficiency of the evidence presented during the second trial." The Martinezes also argued that they had presented sufficient evidence to withstand a motion for a directed verdict even had Lobster Haven made the motion in the 2018 trial.
On August 21, 2018, the trial court entered the order granting Lobster Haven's motion to the extent that it requested a directed verdict. The court found that Dr. Freeman's testimony was based upon impermissible inference stacking. The Martinezes filed a motion for reconsideration which was denied after a hearing, and a final judgment in favor of Lobster Haven was rendered June 14, 2019.
Because it granted the motion for judgment in accordance with the motion for a directed verdict, the court did not address the motion for new trial, which was based in part on the same inference-stacking argument as the motion for judgment in accordance with the motion for a directed verdict. Nor did the court address the motion for remittitur.
II. Analysis
The Martinezes raise two issues, both of which have merit. First, the Martinezes argue that because Lobster Haven did not move for a directed verdict during the 2018 trial, it waived its right to file the posttrial motion. Second, the Martinezes argue that even if the trial court could have considered the posttrial motion for judgment in accordance with the motion for a directed verdict, the court misapplied Florida law with regard to directed verdicts.
A. Motion for a directed verdict in the 2018 trial
Having the benefit of the full transcript of the proceedings, it is apparent that the parties did not stipulate that the motion for a directed verdict made during the 2017 trial would carry over to the 2018 trial. The record reflects that counsel for the Martinezes deferred to Lobster Haven's counsel to explain the stipulation. The stipulation was specific to jury instructions and to evidentiary issues addressed in a motion in limine that had been heard and denied. A motion for a directed verdict is not an evidentiary ruling; the motion raises the legal sufficiency of the evidence. See Fla. R. Civ. P. 1.480(b) ; Lincare Holdings Inc. v. Ford, 307 So. 3d 905, 909 (Fla. 2d DCA 2020). It is clear that there was no stipulation that Lobster Haven could rely on its 2017 motion for a directed verdict in the 2018 trial; Lobster Haven was therefore required to move for a directed verdict during the 2018 trial in order for the court to consider the posttrial motion.
This conclusion is further supported by the change in evidence between the 2017 and 2018 trials. In its 2017 motion for a directed verdict, Lobster Haven adopted the argument raised in its motion in limine with regard to Dr. Freeman. Lobster Haven contended that Dr. Freeman's testimony was based upon an improper stacking of inferences, beginning with the inference that the food served by Lobster Haven had caused Mr. Martinez's December 21 GI infection. At the time of the 2017 trial, whether Lobster Haven's food, and more specifically the oysters, had caused the December 21 GI infection was in dispute. But by the 2018 trial, the facts had changed: Lobster Haven had stipulated both that its food was defective and that its food had caused the December 21 GI infection. These were significant concessions that materially changed the case. There was no longer an inference to be drawn as to the cause of the December 21 GI infection; that the GI infection came from food served by Lobster Haven was a fact upon which Dr. Freeman could then base his opinion. "[W]hen a case is tried upon stipulated facts the stipulation is binding not only upon the parties but also upon the trial and appellate courts and further that no other or different facts will be presumed to exist." Landmark Am. Ins. Co. v. Pin-Pon Corp., 267 So. 3d 411, 412-13 (Fla. 4th DCA 2019) (quoting Troup v. Bird, 53 So. 2d 717, 721 (Fla. 1951) ). A motion for judgment in accordance with a motion for a directed verdict tests the sufficiency of the evidence presented. See Houghton v. Bond, 680 So. 2d 514, 522 (Fla. 1st DCA 1996) (reiterating that rule 1.480 permits a party to challenge the legal sufficiency of the evidence and that a motion for a directed verdict should only be granted where the "non-moving party's case is devoid of probative evidence" (citing Perry v. Red Wing Shoe Co., 597 So. 2d 821, 822 (Fla. 3d DCA 1992) )). And "[t]he law in Florida is clear that, once the motion for directed verdict is overruled and additional evidence is produced, any later review of the matter by the trial or appellate courts must take into account all the facts adduced before and after the initial motion." McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992) (citing Gulf Heating & Refrigeration Co. v. Iowa Mut. Ins. Co., 193 So. 2d 4, 5 (Fla. 1966) ); see also Houghton, 680 So. 2d at 522 ("[A] party cannot seek judgment in accordance with a previously-made motion for directed verdict unless that party has actually asserted the grounds raised in the motion for directed verdict made at the conclusion of the evidence in the case." (citing Allstate Ins. Co. v. Gonzalez, 619 So. 2d 318, 320 (Fla. 3d DCA 1993) )).
The stipulated fact that Lobster Haven's defective food caused Mr. Martinez's December 21 GI infection necessarily required a change to the motion for a directed verdict. The motion for a directed verdict made during the 2017 trial could not apply in the 2018 trial; the first two inferences identified by Lobster Haven in its motion in limine—which was the premise of the 2017 motion for a directed verdict—were now stipulated facts. The legal theory might have been the same, but the evidence upon which it would have been based was different. Cf. DiMare, Inc. v. Robertson, 758 So. 2d 1193, 1194 (Fla. 3d DCA 2000) ("Defendants ask us to rule at this time on whether a directed verdict for plaintiffs would be proper at the second trial, assuming the evidence at the second trial is the same as the first trial. We agree with plaintiffs that this issue is not ripe. We decline to address events which may or may not occur at the retrial of this case."). The trial court had no authority to enter judgment in accordance with a motion for directed verdict that was never made. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Anderson, 501 So. 2d 635, 637 (Fla. 1st DCA 1986) ; see also Guadagno v. Lifemark Hosps. of Fla., Inc., 972 So. 2d 214, 219 (Fla. 3d DCA 2007) ("[A] party waives the issue of legal sufficiency of the evidence by failing to move for a directed verdict on that issue at time of trial.").
B. Judgment in accordance with the motion for a directed verdict
We review de novo the trial court's decision to grant the motion for judgment in accordance with the motion for a directed verdict. See Walerowicz v. Armand-Hosang, 248 So. 3d 140, 143 (Fla. 4th DCA 2018) (citing Aragon v. Issa, 103 So. 3d 887, 888 (Fla. 4th DCA 2012) ). Our review of the record and the trial court's order granting the motion for judgment in accordance with the motion for a directed verdict reveals a number of errors in the trial court's ruling.
It merits repeating that "[t]he rules governing a posttrial motion for judgment in accordance with a previous motion for directed verdict are the same as those governing a motion for a directed verdict at the close of the evidence." Greene, 366 So. 2d at 779-80 (first citing Hendricks, 208 So. 2d at 103 ; and then citing Hall, 331 So. 2d at 376 ). Just as when considering a motion for a directed verdict, when considering a motion for judgment in accordance therewith, the "court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party." See United Servs. Auto. Ass'n v. Rey, 313 So. 3d 698, ––––, 45 Fla. L. Weekly D1855, D1856 (Fla. 2d DCA Aug. 5, 2020) (quoting Sims, 898 So. 2d at 1005 ). It is apparent on review of the trial court's findings in the order granting Lobster Haven's posttrial motion that the trial court evaluated the testimony in favor of Lobster Haven, the moving party, rather than in favor of the Martinezes, the nonmoving party. Similarly, the court either disregarded the conflicts in the evidence presented or resolved them in favor of Lobster Haven where the law requires the trial court to submit conflicting evidence or evidence from which different inferences may be drawn to the jury. Cf. Cox v. St. Josephs Hosp., 71 So. 3d 795, 801 (Fla. 2011) ("[W]hile a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury, it is not appropriate in cases where there is conflicting evidence as to the causation or the likelihood of causation.").
Here, although there were several established facts, the ultimate issue involved differing inferences. The established facts were that Lobster Haven served defective food to Mr. Martinez on December 21; that Mr. Martinez suffered from a GI infection on December 21; that Lobster Haven's defective food caused the December 21 GI infection; and that Mr. Martinez had GBS. There was no conflict in the evidence on these facts. Whether Mr. Martinez also suffered a second GI infection a few days after the December 21 GI infection was in dispute, as was whether the December 21 GI infection caused the GBS.
It is well established that directed verdicts in negligence actions should rarely be granted. Rey, 313 So. 3d at 700 (citing cases). It is also well established that "[t]he opinion of an expert is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion," Harris v. Josephs of Greater Miami, Inc., 122 So. 2d 561, 562 (Fla. 1960) ; "an expert cannot merely pronounce a conclusion that the negligent act more likely than not caused the injury," Cox, 71 So. 3d at 801. The expert cannot merely speculate; his opinion must have a factual basis. Cox, 71 So. 3d at 799-801. Additionally, where a party "depends upon the inferences to be drawn from circumstantial evidence as proof of one fact," inferences cannot be stacked "unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences." Davie Plaza, LLC v. Iordanoglu, 232 So. 3d 441, 445 (Fla. 4th DCA 2017) (quoting Nielsen v. City of Sarasota, 117 So. 2d 731, 733 (Fla. 1960) ). "[W]hen the evidence is susceptible to [an] inference that would allow recovery even though there are opposing inferences that are equally reasonable," the jury is entitled to make the ultimate determination. Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So. 2d 1264, 1279 (Fla. 2003) ; see also Sanders v. ERP Operating Ltd. P'ship, 157 So. 3d 273, 277 (Fla. 2015) ("Where the jury only has to draw one inference from direct evidence to reach a decision regarding the defendant's negligence, the jury is entitled 'to make the ultimate factual determination' regarding whether the defendant's breach was the proximate cause of the harm suffered." (quoting Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329 (Fla. 2001) )). Lobster Haven rested its posttrial motion on the argument that the Martinezes proved their case as to causation through testimony that impermissibly stacked inference upon inference. In granting the motion, the trial court found that "[t]he impermissible inference stacking during Dr. Freeman's testimony left the jury in the position to base [its] verdict only on inference stacked upon inference." In so finding, the trial court identified the stacked inferences as follows:
1. The gastrointestinal illness caused the GBS.
2. The gastrointestinal illness that led to GBS came from a meal served at Lobster Haven.
3. There was only one Lobster Haven gastrointestinal illness, to the exclusion of [a second, unrelated gastrointestinal illness].
4. The gastrointestinal illness was caused by [the bacteria most associated with raw oysters].
5. Plaintiff's GBS was caused by that gastrointestinal illness.
According to the trial court, "[s]ince [the first] three of Dr. Freeman's original inferences [could not] be established to the exclusion of any other reasonable inference, there is no reasonable evidence for the jury to have found for the plaintiffs."
As is apparent, the first and fifth inferences are identical. And while Lobster Haven argued that Dr. Freeman's testimony began and ended with the inference that the December 21 GI infection caused the GBS, that inference addresses the ultimate issue on which Dr. Freeman was permitted to give his opinion. See § 90.703, Fla. Stat. (2018). Utilizing the imagery often associated with inference stacking—a pyramid—whether the December 21 GI infection caused the GBS is the vertex of the pyramid. See Reaves v. Armstrong World Indus., Inc., 569 So. 2d 1307, 1309-10 (Fla. 4th DCA 1990) (adopting the trial court's explanation of the pyramiding of inferences in that case from base to ultimate causation); cf. Tillery v. Standard Sand & Silica Co., 226 So. 2d 842, 846 (Fla. 2d DCA 1969) ("It must now be determined whether a jury in the instant case could properly infer that Tillery died from electrical shock or as a result of the fall caused by the electrical shock and based on that inference conclude that the shock came from a defective welding machine, without violating the inference on an inference rule."). Whether Lobster Haven served defective food was the base or foundation of the pyramid. The trial court identified the same inference as both the vertex and the base, erroneously creating an inferential step that was not required.
Adding to that error, the trial court identified as a single inference that "[t]he gastrointestinal illness that led to GBS came from a meal served at Lobster Haven." In doing so, the court erroneously combined the ultimate issue—the cause of the GBS—with a stipulated fact for which no inference was required—that Lobster Haven's defective food caused the December 21 GI infection. Unlike the cases cited by the trial court and Lobster Haven, Broward Executive Builders, Inc. v. Zota, 192 So. 3d 534, 538 (Fla. 4th DCA 2016), and Stanley v. Marceaux, 991 So. 2d 938, 940 (Fla. 4th DCA 2008), the jury in this case was not required to infer the existence of a defect. The defect was established through the stipulation, as was the fact that the defect caused the December 21 GI infection. See § 90.705(2) ("[T]he opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data."); Christakis v. Tivoli Terrace, LLC, 181 So. 3d 579, 580 (Fla. 4th DCA 2016) (reversing judgment notwithstanding verdict where the plaintiff "was not building inference upon inference because the [defect] was established"); cf. Davie Plaza, 232 So. 3d at 446 ("[T]he inference that Maroudis placed his ladder on a defect in the premises cannot be made to the exclusion of all other reasonable inferences."); Young-Chin v. City of Homestead, 597 So. 2d 879, 882 (Fla. 3d DCA 1992) ("The trial court allowed Dr. Kirkpatrick to furnish a prognosis for David from an inference of what David's microscopic brain tissue slides might reveal, even though no slides existed from which Dr. Kirkpatrick could have formulated an opinion. The facts underlying Dr. Kirkpatrick's opinion were not established."). Dr. Freeman did not infer that the December 21 GI infection came from food served by Lobster Haven; it was a stipulated fact upon which he could base his opinions.
In that respect, the court improperly characterized the evidence as "circumstantial" where it was direct. See Norman v. DCI Biologicals Dunedin, LLC, 301 So. 3d 425, 431 (Fla. 2d DCA 2020) ; cf. Broward Exec. Builders, 192 So. 3d at 537 (identifying as circumstantial the only evidence of where and how the victim fell).
Compounding these errors, the trial court identified as a third inference that there was only the December 21 GI infection. Stated differently, the third inference to be drawn was that there was not a second GI infection. But the Martinezes were not required to disprove an alternate causation theory; the Martinezes were required to introduce evidence that Lobster Haven's defective food "more likely than not" caused Mr. Martinez's GBS. See Sanders, 157 So. 3d at 277. Dr. Freeman unequivocally testified that given the stipulation that Lobster Haven served defective food which caused the December 21 GI infection, the December 21 GI infection was the cause of the GBS. He testified that GI infections are causally connected to GBS when the GI infection precedes the GBS symptoms by a period less than three to five weeks. Moreover, Dr. Freeman considered the possibility of a second GI infection and determined it to be implausible in this case. Any inference involving a second GI infection is independent both of the fact that there was a December 21 GI infection and of the inference that the December 21 GI infection caused the GBS. See Castillo, 854 So. 2d at 1279 (concluding that inferences were not stacked where "[o]ne inference need not be established before the next inference can be considered" and "[e]ach fact inferred is independent of the other"); cf. Broward Exec. Builders, 192 So. 3d at 539 ("In a case involving dependent facts, where circumstantial evidence is utilized to establish an inference, that inference must be exclusively established as the only reasonable inference before a subsequent dependent inference can be considered."). Where the inferences are independent of each other, they are not stacked. The Martinezes were not required to establish one inference to the exclusion of all other reasonable inferences.
The fourth inference identified by the trial court is likewise not an inference necessary to the Martinezes' case, if only because of the stipulation that Lobster Haven's food caused the December 21 GI infection. The stipulation eliminated any need for the Martinezes to establish that Lobster Haven's food was contaminated with a specific bacteria or pathogen which caused the December 21 GI infection. As explained by Dr. Gorson, the type of bacteria or pathogen can be helpful to understanding "the mechanism of the illness," but here the illness was undisputed. Cf. Gant v. Lucy Ho's Bamboo Garden, Inc., 460 So. 2d 499, 501-02 (Fla. 1st DCA 1984) ("It has been held in a food poisoning case that although the only means of definitely ascertaining the precise cause of illness is to chemically analyze the food and plaintiff's stools, the failure to present such evidence does not leave the plaintiff's case legally insufficient in the presence of circumstantial evidence that some of the defendant's customers consumed a shrimp salad alleged to have been deleterious while other customers in the group partook of different food and only those having ingested the shrimp salad became ill." (citing Ogden v. Rosedale Inn, 189 So. 162, 164 (La. Ct. App. 1939) )). And both Dr. Freeman and Dr. Gorson testified that GBS results from the body's reaction to an infection.
To the extent that Lobster Haven argued that Dr. Freeman's testimony was purely speculation because it was not premised on scientific evidence or sufficient facts, Lobster Haven's failure to challenge Dr. Freeman's methodology precludes consideration of that argument even as it relates to the directed verdict or motion in limine. Cf. SDI Quarry v. Gateway Estates Park Condo. Ass'n, 249 So. 3d 1287, 1293 (Fla. 1st DCA 2018) ("Appellant never raised a Daubert objection or requested a Daubert hearing below. Accordingly, we cannot address Appellant's legal challenge to McNew's opinion to the extent Appellant alleges a flawed scientific foundation or methodology." (citations omitted)); Kaelbel Wholesale, Inc. v. Soderstrom, 785 So. 2d 539, 547 (Fla. 4th DCA 2001) (addressing the trial court's determination to admit expert scientific testimony where a challenge pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), had been raised). Further, "[w]hile epidemiology is considered generally accepted in the scientific community as a way of studying causal links between disease and chemicals, these types of studies are not necessarily required for a party to meet its burden of showing the causal link by a preponderance of the evidence." Castillo, 854 So. 2d at 1270.
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We note that to the extent that the trial court determined that judgment in accordance with the motion for a directed verdict was appropriate because Dr. Didio's testimony was speculation and conjecture and could not independently support the Martinezes case, this was error. Lobster Haven at no point prior to or during either the 2017 or 2018 trial objected to Dr. Didio's testimony as speculative or improperly stacking inferences. See § 90.104(1)(a), Fla. Stat. (2018). Moreover, Dr. Didio's expert opinions were consistent with those of Dr. Freeman and otherwise provided sufficient evidence to present the case to the jury.
There was no stacking of inferences in this case. The causation pyramid required the Martinezes to present evidence that Lobster Haven served defective food, a stipulated fact; that the defective food caused the December 21 GI infection, also a stipulated fact; that Mr. Martinez suffered from GBS, an undisputed fact; and that the December 21 GI infection more probably than not caused the GBS. The singular inference made by Dr. Freeman was the ultimate conclusion—that the December 21 GI infection caused Mr. Martinez's GBS. Dr. Freeman "did not simply provide a summary conclusion without a factual basis." See Sanders, 157 So. 3d at 279 (quoting Cox, 71 So. 3d at 801 ). Thus, the jury was entitled to determine that the defective food—served by Lobster Haven and which caused the December 21 GI infection—was a legal cause of Mr. Martinez's GBS.
III. Conclusion
The trial court erred as a matter of law in granting Lobster Haven's motion for entry of judgment in accordance with the motion for a directed verdict. The final judgment in favor of Lobster Haven is reversed, and we remand for reinstatement of the jury's verdict.
Reversed and remanded.
MORRIS and SMITH, JJ., Concur.