Photo of Stephen McConnell

In his poem “To Summer,” Blake begs the season to “curb thy fierce steeds, allay the heat/That flames from their large nostrils!”  That is typical Blake; he takes our favorite time of the year and turns it into a satanic beast.  We’d prefer to consider the delightful aromas that Summer brings to our nostrils: beach, fresh cut grass, BBQ, citronella, funnel cakes, empty courtrooms, etc.  Plus, if we believe the Seals and Crofts song “Summer Breeze,” the scent of jasmine is out there.  Summer is redolent of youth and hope.

Sometimes we get the sense that the sense of smell does not get its due.  We are taught that seeing is believing.  McCartney sang, “Listen, do you want to know a secret?”  Morrison insisted, “C’mon, c’mon, c’mon and touch me, babe.”  It took us a moment to think of any olfactory songs, but there are more than you might suspect.  Primus inter pares, of course, is Nirvana’s “Smells Like Teen Spirit.”  A mellow Mac Davis asked his fans to “Stop and Smell the Roses.”  Lynyrd Skynyrd rocked out to “That Smell.”  Todd Rundgren might have been floating in that ocean of cash he got from producing Bat Out of Hell when he wrote “The Smell of Money.”  And what was the reason for the great guitarist Buddy Guy’s fixation on all things nosey?  His huge catalog of classics includes “I Smell Trouble,” “I Smell a Rat,” and “Smell the Funk.”  Does all that Chicago blues stinkiness have anything to do with the fact that the name “Chicago” comes from an Indian word for a malodorous onion?   [Meanwhile, expect the Abnormal Use blog to issue a challenge about which roster of legal geeks can come up with more smelly songs.  Hey, Dedman, we’re waiting.]

A lawyer friend of ours who was born without a sense of smell reports that she considers it a blessing.  She reasons that when people mention smells, they (like Buddy Guy) are usually not happy about it.  There is more fetor than perfume in the air.  But, clearly, not everyone agrees with this opinion.

Today’s case, Bunin v. Matrixx Initiatives, Inc., 2016 WL 3090777 (Fla. 4th DCA June 1, 2016),  was brought by a plaintiff who alleged that she had lost her sense of smell from using a nasal spray. Loss of the sense of smell is called anosmia.  She brought her case in Florida state court in 2009, and brought in an expert to testify that the nasal spray was what caused the plaintiff’s anosmia.  The issue was whether that expert’s opinions would be tested by Florida’s old expert standard, which existed when the case was filed, or the new test, patterned after the federal Daubert test, which had been enacted by the Florida legislature in section 90.702 of the Florida statutes in 2012 — after the case had been filed.  In other words, the issue was whether Florida’s adoption of the Daubert test would have retroactive effect.   Retroactivity mattered in this case, because the trial court held that the plaintiff expert’s opinions would have been admissible under the old test (the court referred to a “pure opinion” rule, which sounds loosey-goosey), but not under the new Daubert test.

The appellate court held that the test for retroactivity is “well-settled.” Procedural or remedial statutes are to be applied retrospectively and are to be applied to pending cases.  More specifically, a statute “that merely ‘relates to the admission of evidence’ is generally considered procedural.”  Applying this rule, “Section 90.702 of the Florida Evidence Code indisputably applies retrospectively.”  That makes sense.  After all, no matter what the expert test is under any state law, if the case is in federal court, the Daubert test (and Fed. R. Evid. 702) will apply.  That is because the standard for admitting expert evidence is procedural.  If it were substantive, we’d be talking about Erie.

Once the appellate court decided that Florida’s version of Daubert applied, it wasted little time in affirming the trial court’s exclusion of the plaintiff expert.  There was no abuse of discretion.  Without the expert causation opinion, the case was not viable.  Accordingly, it was dismissed.

We’d say that the Florida Bunin opinion passes the smell test.