Daily Blast - May 24, 2019

In an Unexpected Shift, the Florida Supreme Court Resurrects the Daubert Standard for Admissibility of Expert Testimony and Evidence in Florida State Courts, Receding From Its Prior Adherence to the Frye Standard, In re: Amendments to the Florida Evidence Code, SC19-107, 44 Fla. L. Weekly S170a (Fla. May 23, 2019)

In a 5-2 decision, the Florida Supreme Court utilized its exclusive rulemaking authority and adopted the Florida Legislature’s amendments to sections 90.702 and 90.704, of the Florida Evidence Code, as amended by chapter 2013-107, sections 1 and 2. The amendments recede from Florida’s prior adherence to the Frye standard and conclusively adopt the more universally-applied Daubert standard for admissibility of expert testimony and evidence. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Florida Supreme Court’s Opinion became effective immediately upon its release on May 23, 2019, and the text of the Opinion and minority (concurring and dissenting) opinions may be found here.

In order to adopt the Legislature’s amendments, it was necessary for the Florida Supreme Court to recede from its 2017 rules opinion declining to adopt the same amendments on the basis of “grave constitutional concerns” pertaining to access to the courts. In re Amendments to Florida Evidence Code, 210 So. 3d 1231, 1242-43 (Fla. 2017). Citing Justice Polston’s minority 2017 opinion (concurring in part and dissenting in part), the Court explained that these concerns “appear unfounded.” Specifically, as Justice Polston’s asserted in his minority 2017 opinion, the “clear majority of state jurisdictions also adhere to the Daubert standard... I know of no reported decisions that have held that the Daubert standard violates the constitutional guarantees of a jury trial and access to the Courts. To the contrary, there is case law holding that the Daubert standard does not violate the constitution...”

The Court’s Opinion briefly addresses its decision in Delisle v. Crane Co., 258 So. 3d 1221, 1229 (Fla. 2018). In Delisle, the Florida Supreme Court confirmed the procedural nature of section 90.702, Florida Statutes. The Court then held that the Legislature’s codification of the Daubert standard was unconstitutional as it exceeded the Legislature’s substantive rulemaking authority and invaded the Court’s power to enact procedural law. The Opinion observes “without now readdressing the correctness [of Delisle],” that the Delisle decision only determined that section 90.702 was “procedural in nature,” and did not otherwise determine the extent to which section 90.704 may be procedural. The Court’s Opinion notes that any constitutional concerns pertaining to section 90.704 must be left for a proper case or controversy and cannot be determined in this rules Opinion.

The Opinion further explains that the Daubert amendments “remedy deficiencies of the Frye standard.” The Opinion cites to the fact that the Daubert standard applies more expansively to relevance and reliability of “all scientific testimony and evidence,” as opposed to the Frye standard’s more narrow applicability to “new or novel scientific techniques and general acceptance.” In addition, use of the Daubert standard will create greater consistency between the state and federal courts by “promoting fairness and predictability in the legal system” and discouraging forum shopping.

Under the Daubert standard, the trial judge serves as the “gatekeeper” charged with evaluating all proffered expert testimony to determine whether the expert’s opinions are: (1) based upon scientifically valid methodology and reasoning; and (2) properly applied to the facts at issue in the case. Like the Frye standard, the burden lies with the party seeking to offer the witness as an expert—not upon the party asserting the Daubert challenge. Contrary to Frye, however, the Daubert standard tightens the rules of admissibility, making “general acceptance” only one factor to be considered,  and eliminating an expert’s ability to rely upon “pure opinion” testimony, which was a noted exception under the Frye standard.

The Florida Supreme Court’s Opinion immediately and conclusively adopts the Daubert standard, consistent with the standard used by the federal courts and many other state courts. Due to this new Opinion, we recommend reviewing active cases to ensure that any pending motions challenging the admissibility of expert testimony in the Florida state courts are in compliance with the Daubert standard.

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