New Standard of Admissibility for Evidence in Opposition to Summary Judgement Seems to have Emerged Across Florida

The standard of review on a Motion for Summary Judgment is clear in Florida: “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”[1] In a summary judgment hearing, the court can only look at the record evidence and determine if the evidence shows any material dispute. The judge cannot weigh the evidence in making this determination. In practice, this has meant that simply filing an affidavit in opposition to summary judgment, even if demonstrably false, has been sufficient to defeat a summary judgment by pleading the existence of “a general issue of material fact.” However, a recent appellate opinion out of Florida’s Third District Court of Appeal has raised the bar.

In Gonzalez v. Citizens Prop. Ins. Corp.[2] , the insurer moved for summary judgment on the basis that the insureds’ claimed damages were the result of wear and tear, a specifically excluded cause of loss under the policy. The homeowners opposed the insurer’s motion by offering an affidavit from their retained engineer, who opined that the roof at their property was actually damaged by a one-time wind event, which would be a covered loss under the policy.

The insureds’ engineer stated that, based upon his inspection, the roof at the property required replacement in full. However, it was clear from the record that this expert had not inspected the roof until one year after the roof had already been replaced. Furthermore, the affidavit was executed at a time prior to his inspection of the property, and there was no reasonable supporting basis for his opinion, although he did acknowledge in a deposition that the very data upon which he relied upon “is currently highly inaccurate.”

Ordinarily, this affidavit would still be sufficient to create a “genuine issue of material fact” and defeat summary judgment, even if it was riddled with questionable findings. But for the Gonzalez court, they felt that they had no choice but to set forth a heightened standard based upon a cobbling together of previous sections of analysis from their prior decisions.

The appellate court’s majority stated that affidavits in opposition to summary judgment must identify “admissible evidence that creates a genuine issue of material fact,” stating that “[t]he focus is on whether the affidavits show evidence of a nature that would be admissible at trial.” They further cited to the principle that “[i]t is well established that affidavits, such as those presented by the plaintiff, which are based entirely upon speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment.”

The ultimate takeaway from the Gonzalez opinion is that “no weight may be accorded [to] an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning.” Stated most simply, however, an expert’s evidence in opposition to summary judgment is held to the basic standard of show your work. Any evidence upon which the expert claims to rely, such as photographs or data, must be attached to the affidavit or, at a minimum, identified as already within the court’s record. A judge, reviewing the evidence in opposition, needs to see that the opposition evidence actually contains some reasonable basis in fact and that it is not just a series of conclusory statements calculated solely to manufacture a "genuine issue of material fact" to keep a case alive past summary judgment.

This is not, as some attorneys may try to argue (and as argued in the dissent to Gonzalez), an issue of the trial court impermissibly weighing the evidence. Nor is it a premature evaluation of the expert’s credentials and credibility under Daubert. Rather, the trial court, in reviewing the expert’s findings and underlying analysis and documentation, is acting as a gatekeeper solely with respect to the admissibility of the expert’s evidence. If the evidence is inadmissible due to its lack of a “discernible, factually-based chain of underlying reasoning,” it simply cannot even be considered in opposition to summary judgment.

Where a party opposing summary judgment relies entirely on the evidence from their expert, rendering it inadmissible serves as to present the court with a situation in which there is no admissible evidence in opposition, and therefore there is no “genuine issue of material fact,” requiring the entry of summary judgment.

Putting Gonzalez into practice, an attorney seeking summary judgment should review not only the existing record evidence but also the data upon which the expert claims to rely. If it is not reasonably within the larger record in some fashion, there is an argument that it fails to clear the Gonzalez bar and simply cannot be considered.

The Gonzalez opinion has already been cited in several other appellate circuits[3] and has led to multiple summary judgment verdicts in favor of insurers at the trial court level[4]. A single engineer’s overreaching and unsupported evidence, submitted solely in a calculated effort to defeat summary judgment, may soon be the cause of a statewide acknowledgment of a heightened standard of admissibility for expert evidence in opposition to summary judgment.