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Appellate court approves of controversial evidence standard

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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’s one of the inventors behind a line of spray-bottle flavored olive oils. Bunin, based in South Florida, also holds a patent for a disposable women’s panty.

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.

Hundreds of reports similar to Bunin’s claim have been lodged against the product, and the U.S. Food and Drug Administration issued a consumer advisory in 2009 not to use it.

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.

That’s because the state switched to the Daubert standard, which holds expert evidence to a higher scientific bar than the old Frye standard that had been used in Florida.

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.

Before joining Florida Politics, journalist and attorney James Rosica was state government reporter for The Tampa Tribune. He attended journalism school in Washington, D.C., working at dailies and weekly papers in Philadelphia after graduation. Rosica joined the Tallahassee Democrat in 1997, later moving to the courts beat, where he reported on the 2000 presidential recount. In 2005, Rosica left journalism to attend law school in Philadelphia, afterwards working part time for a public-interest law firm. Returning to writing, he covered three legislative sessions in Tallahassee for The Associated Press, before joining the Tribune’s re-opened Tallahassee bureau in 2013. He can be reached at jim@floridapolitics.com.

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