Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Petitioner, v. BRIAN BARBER, Respondent. No. 2D22-2036 April 14, 2023 Petition for Writ of Certiorari to the Circuit Court for Sarasota County; Lee E. Haworth, Judge. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims- Bohnenstiehl, Assistant Attorney General, Tampa, for Petitioner. Andrea Flynn Mogenson, Sarasota, for Respondent. VILLANTI, Judge. The State of Florida seeks certiorari review of the trial court's May 24, 2022, order granting Brian Barber's motion to exclude from trial the testimony of the State's expert witness, Dr. Bruce Goldberger. Because the trial court utilized an incorrect standard in qualifying Dr. Goldberger's expert opinion testimony and because the exclusion of his testimony causes irreparable injury to the State that cannot be remedied on appeal, we grant the petition and quash the May 24, 2022, order. I. On July 9, 2016, at approximately 1 a.m., Brian Barber and two other men were involved in a single-vehicle accident in Sarasota County. One of the occupants of the vehicle died at the scene; Barber and the other occupant were taken by ambulance to a nearby hospital. Although Barber owned the vehicle in question, he told law enforcement who interviewed him at the hospital that the decedent had been driving when the crash occurred. However, based on the decedent's position within the vehicle as well as DNA evidence, law enforcement concluded that Barber was the driver at the time of the accident. The investigating officers requested a search warrant to obtain a sample of Barber's blood following Barber's interview at 8 a.m. The sample that was obtained from Barber at 9 a.m. revealed that his blood alcohol level was .041.1 Barber was subsequently charged with DUI manslaughter and vehicular homicide. The State filed its pretrial notice of intent to present as its expert Dr. Bruce Goldberger to provide testimony about the "retrograde extrapolation" of Barber's blood alcohol level at the time of the accident.2 The defense filed a motion to exclude Dr. Goldberger's testimony, 1 In Florida, a blood-alcohol level of .08 or more grams per 100 milliliters of blood is prima facie evidence of impairment. See §§ 316.193, .1934(2)(c), Fla. Stat. (2022). 2 Retrograde extrapolation is a methodology of determining an individual's blood alcohol level at an earlier time by multiplying the average rate at which alcohol is eliminated from the body by the amount of time between the accident and the blood test and adding that product to the individual's known blood-alcohol level. See Vitiello v. State, 281 So. 3d 554, 558 (Fla. 5th DCA 2019). 2 claiming that Dr. Goldberger's methodology is not widely accepted by the scientific community, that his testimony would confuse the jury, and that it would be prejudicial to Barber. The trial court held an evidentiary hearing during which Dr. Jimmie Valentine testified for the defense and Dr. Goldberger testified for the State. Both Dr. Goldberger and Dr. Valentine are experts in the field of toxicology. Dr. Valentine testified that retrograde extrapolation is an accepted methodology in the field of toxicology but that the numerous "assumptions" Dr. Goldberger made to reach his conclusion rendered the extrapolation of Barber's blood alcohol level unreliable. These assumptions included the start and end time of Barber's alcohol consumption in the hours before the accident, Barber's alcohol metabolic rate, what state of absorption Barber was in at the time of the accident, whether Barber was the driver or the passenger of the vehicle, and possibly other data. Dr. Goldberger testified that the assumptions he makes in retroactive extrapolation are scientifically based and that when possible he includes known variables—such as field sobriety test results and witness reports of the subject's last known meal or drink consumption before the accident—in making those assumptions. In this case, Dr. Goldberger testified he reviewed a "four-inch thick" binder containing crash and autopsy reports, information from the vehicle's "black box," toxicology results from the Florida Department of Law Enforcement, photographs, and DNA evidence obtained from the vehicle. Dr. Goldberger did not know when Barber had his last alcoholic drink but assumed he was postabsorption. He thus used a "conservative" assumed absorption rate to err on the side of caution. Dr. Goldberger further testified that he has been familiar with retroactive extrapolation for forty 3 years and that the methodology has been utilized in the scientific community for much longer. Based on his calculations, Dr. Goldberger concluded that Barber's blood alcohol level was 0.161 at the time of the accident. The trial court granted Barber's motion to exclude Dr. Goldberger's testimony on May 24, 2022. In its written order, the trial court acknowledged that retroactive extrapolation is widely accepted in the scientific community and discussed the Fifth District's approval of Dr. Goldberger's retroactive extrapolation methodology in Vitiello v. State, 281 So. 3d 554 (Fla. 5th DCA 2019). In Vitiello, Dr. Goldberger utilized retroactive extrapolation to determine the blood alcohol level of a defendant who was charged with four counts of boating under the influence with serious bodily injury. Id. at 557-58. What the trial court found distinguishing in Vitiello—and dispositive in this case—was what it deemed a lack of independent evidence of Barber's intoxication. In Vitiello, law enforcement administered field sobriety tests to the defendant based on visible signs of impairment, and eyewitnesses testified that she had been drinking prior to crashing the boat. In the instant case, the trial court wrote that although Dr. Goldberger reviewed a significant amount of "collateral evidence," none of that established Barber's impairment and assisted Dr. Goldberger only in "contextualization." The trial court went on to cite several other Florida appellate cases that upheld the application of retroactive extrapolation but only in the presence of independent evidence of impairment. Notably, the trial court wrote: "But for the crucial missing data [other signs of impairment other than Dr. Goldberger's calculations], based on Dr. Goldberger's nearly identical 4 testimony and methodology in Vitiello and Barber, the State's burden of proof would have been met." The State moved for rehearing, noting in its motion its intent to provide additional evidence that Barber was intoxicated at the time of the crash, including testimony from law enforcement and medical personnel who smelled alcohol on Barber's breath and witnessed signs of impairment, Barber's interview with law enforcement wherein he admitted to drinking alcohol at the Cheetah Lounge just prior to the crash, and the fact that Barber's known blood alcohol level was 0.04 eight hours after the crash. The motion for rehearing was denied, prompting the State to file the instant petition. II. Certiorari review is appropriate when "the challenged order (1) constitutes a departure from the essential requirements of the law; (2) causes material injury throughout the remainder of the proceedings below; and (3) causes injury that is irreparable, as it effectively leaves no adequate remedy at law." Menke v. Wendell, 188 So. 3d 869, 871 (Fla. 2d DCA 2015) (quoting Boby Express Co. v. Guerin, 930 So. 2d 842, 843 (Fla. 3d DCA 2006)). "[I]f the requirements permitting certiorari jurisdiction otherwise exist, a pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review." State v. Davis, 857 So. 2d 349, 350 (Fla. 2d DCA 2003) (quoting State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988)). Here, the trial court expressly acknowledged in the order under review that Vitiello is binding precedent. In that case, the defendant Vitiello, while driving a boat on a lake after dark, crashed into a seawall, resulting in injury to her passengers. 281 So. 3d at 557. Upon arrival, 5 law enforcement first observed Vitiello cradling an injured passenger, praying, and slurring her words and later noticed that her eyes were bloodshot and that she smelled of alcohol. Id. An officer then performed field sobriety tests, which indicated Vitiello was impaired. Id. After her arrest, Vitiello refused to provide a blood sample. Id. By the time a warrant was secured to obtain the sample, more than six hours had passed and Vitiello's blood alcohol level was 0.027. Id. Dr. Goldberger was the State's witness in Vitiello, and the defense mounted the same challenges to Dr. Goldberger's methodology in that case as it has in the instant case. See id. at 558. The Fifth District explained Dr. Goldberger's methodology: Dr. Goldberger explained that he made two assumptions when performing the calculations. First, he assumed Vitiello eliminated alcohol at .015mg/mL/h, although he acknowledged that the rate can be higher or lower depending on factors such as a person's weight or their pattern of alcohol consumption. Second, he assumed Vitiello's blood alcohol level had peaked, meaning her body had finished absorbing alcohol at the time of the crash. Dr. Goldberger conceded that, similar to the elimination rate, many variables could affect when a person has finished absorbing alcohol, including the time of the person's last drink, how much they drank, and when they last ate. Dr. Goldberger admitted that he did not know the time of Vitiello's last meal or last drink. However, he did not perform his calculations in a vacuum— he also considered the reports of law enforcement, including their descriptions of Vitiello's performance on the field sobriety tests, and the depositions of the other passengers, all of which confirmed his estimation of Vitiello's BAC. Id. In the instant case, the trial court distinguished Vitiello by concluding that [I]t is not the lack of information relating to the time of last drink, last meal, length of time from crash to blood draw, or 6 any of the other missing "critical data points" asserted by defense and their expert Dr. Valentine, that prevent the introduction of Dr. Goldberger's opinion. . . . Those arguments were presented and explicitly rejected in Vitiello, which held that the claimed deficiencies go to the weight, and not their admissibility. The trial court also noted in its written order that Dr. Goldberger's methodology has been judicially recognized as meeting the standards of Daubert and admissibility standards under Florida law. The State argues that the trial court abused its discretion in excluding Dr. Goldberger's testimony because by its own admission, the trial court acknowledged the testimony meets the criteria of section 90.702, Florida Statutes (2022)3, which provides: 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. When engaging in a Daubert analysis, the judge's role is that of the evidentiary "gatekeeper," that is, the one who determines whether the expert's testimony meets the Daubert test. The purpose of the gatekeeping requirement is to ensure an expert "employs in the court room the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." 3 In 2013, the Florida Legislature amended section 90.702 to align with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See ch. 2013-107, Laws of Fla.; see also In re Amends. to Fla. Evidence Code, 278 So. 3d 551 (Fla. 2019) (adopting section 90.702, as amended, as a procedural rule of evidence). 7 Booker v. Sumter Cnty. Sheriff's Off./N. Am. Risk Servs., 166 So. 3d 189, 192 (Fla. 1st DCA 2015) (citations omitted). "Under this gatekeeping authority, '[a] trial judge must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." ' " Royal Caribbean Cruises, Ltd. v. Spearman, 320 So. 3d 276, 290 (Fla. 3d DCA 2021) (alteration in original) (quoting Kemp v. State, 280 So. 3d 81, 88 (Fla. 4th DCA 2019)). The State contends that the trial court imposed its own "Daubert plus" standard because it acknowledged that Dr. Goldberger's methodology meets the requirements of section 90.702 and Daubert and further noted that Dr. Goldberger's identical methodology is "judicially recognized" as accepted in the scientific community. The State argues that Vitiello does not require additional evidence of impairment when admitting retroactive extrapolation BAC evidence but that the additional information would go to the weight of the evidence. The State contends that the trial court's misapplication of Vitiello and subsequent exclusion of Dr. Goldberger's testimony will cause irreparable harm because it will substantially hinder the prosecution and double jeopardy prevents prosecuting Barber a second time. We agree. A close reading of Vitiello reveals the merit in the State's arguments. Nowhere does Vitiello say that Dr. Goldberger's testimony was admissible only because additional evidence also supported the conclusion that Vitiello was intoxicated. To the contrary, while recognizing Vitiello's argument that Dr. Goldberger's testimony might be subject to challenge due to factors such as the time between the accident and the blood test, what Vitiello was drinking, and when she stopped 8 drinking, 281 So. 3d at 558-59, his testimony was nevertheless admissible under Daubert, and "the lack of information cited by Vitiello, which was presented and argued to the jury, goes to the weight of Dr. Goldberger's testimony, not its admissibility," id. at 563-64. It should also be noted that there was one significant "independent" piece of evidence presented at the hearing on Barber's motion to exclude: the fact that Barber's blood alcohol level was .04 a full eight hours after the crash occurred. Barber was taken by ambulance from the accident scene to the hospital, where undisputedly he did not ingest more alcohol before his blood was collected at 9 a.m. The trial court wrote that it was "unable to find any Florida case where retrograde extrapolation was admitted in an alcohol related event without there existing surrounding circumstances indicating the subject was under the influence of a behavior-altering substance at or around the relevant incident." But Barber's "behavior" at the time of the accident is an "additional fact" that goes to the weight of the evidence, not the admissibility of Dr. Goldberger's testimony. See id. Moreover, under these circumstances, the very fact that Barber's blood alcohol level was .04 eight hours after the accident strongly supports Dr. Goldberger's conclusion that Barber was under the influence of alcohol at or around the accident. The State also points out that the law enforcement officer who responded to the crash and treating medical personnel at the hospital to which Barber was transported detected the odor of alcohol on his breath and that Barber himself admitted to being at a bar prior to the crash, which was confirmed via surveillance video. Additionally, Barber admitted to drinking alcohol prior to the crash and even said that the decedent drove because he drank less alcohol than Barber. The State raised these arguments in its motion for rehearing, but the trial court 9 opined that if Dr. Goldberger considered any of the above in making his opinion, he did not state so during the hearing on Barber's motion to exclude. The transcripts from that hearing reflect that Dr. Goldberger considered numerous extraneous reports and results in forming his opinion. Dr. Goldberger's unequivocal testimony that these materials provided contextualization indicate to us that his opinion that Barber was impaired at the time of the accident was not formed "in a vacuum." See id. at 558. III. We hold that the trial court's order excluding Dr. Goldberger's testimony departs from the essential requirements of the law, causing material injury that cannot be remedied on appeal. Accordingly, we grant the State's petition and quash the trial court's May 24, 2022, order. Petition granted; order quashed. SILBERMAN and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 10