A state appeals court has upheld the retroactive use of a contentious evidence standard approved by lawmakers in 2013.
The 4th District Court of Appeal this week affirmed a trial court ruling against plaintiff Simona Bunin.
She wanted to use an expert to help prove her case that she lost her sense of smell after using Zicam nasal spray, a zinc-based cold remedy.
The company that makes it has denied a link between its product and loss of sense of smell, but also changed its formula so that the nasal spray no longer contains zinc.
Nonetheless, a judge sided with Zicam’s makers and the Publix supermarket chain and said Bunin’s expert’s testimony couldn’t come in at trial.
It’s generally considered easier for plaintiffs to get damaging expert testimony before a jury under Frye, and much harder to do so under Daubert, which is seen as more defense-friendly.
Bunin appealed, saying the Daubert standard “should not be applied retroactively to her case, which was filed in 2009.”
A three-judge panel of the appellate court disagreed. Its unanimous opinion said such changes to evidentiary standards are “procedural” and “are to be applied retroactively and … to pending cases.”
Last year, the Florida Bar’s Board of Governors voted to recommend that state trial courts not use the Daubert standard, which is favored by Republican Gov. Rick Scott and conservative lawmakers.