Florida Supreme Court Rejects Daubert Statute

February 2017
Evelyn Fletcher Davis, Todd C. Alley
Florida

The Daubert standard for admission of expert testimony at trial is now on life-support in Florida after a 4-2 ruling by the Florida Supreme Court on February 16th. The Court declined to adopt the statute enacted by the Florida Legislature in 2013, which amended the Florida Rules of Evidence to make the Daubert standard the applicable standard for expert testimony, “to the extent procedural.”

In 2013, the Florida Legislature enacted HB7015, the amendment to replace the Frye rule with the Daubert standard. The Frye standard for admissibility of expert testimony, which had previously been in use in Florida and dates back to the 1923 federal case of Frye v. United States, requires a trial judge only to determine whether expert testimony relies upon principles that have gained “general acceptance” in the particular expert’s field and then leaves it up to the jury to determine what weight to give the expert testimony in the same way the jury weighs all other evidence. It is considered an easier standard with which to gain admittance of expert testimony and is favored by plaintiffs’ attorneys. The Daubert standard, so-called as it resulted from the 1993 United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., requires the trial court to act as a “gatekeeper” to prevent junk science and unsupported opinions from coming before a jury.  The trial court must undertake a three-part test in determining whether expert testimony can be admitted:  whether the testimony is “based upon sufficient facts or data”; whether it is the “product of reliable principles and methods”; and whether a witness has “applied the principles and methods reliably to the facts of the case.”  The more restrictive Daubert standard, favored by the defense bar, and businesses, has been in use in the federal courts and over two-thirds of the states since 1993.  

Despite its wide acceptance, the United States Supreme Court’s Daubert standard was not adopted by Florida courts until the Florida Legislature took action in 2013. The Daubert amendment was supported by Florida Governor Rick Scott, but immediately opposed by the plaintiffs’ bar who challenged the amendment through the Florida Bar’s Code and Evidence Rules Committee. Following fierce debate among Florida lawyers that generated hundreds of comments, the Code and Evidence Rules Committee voted 16-14 against the Daubert standard, and following further debate the Florida Bar Board of Governors in late 2015, voted 33-9 to recommend to the Florida Supreme Court that the Court not adopt the Daubert statute to the extent it was procedural. That recommendation came before the Florida Supreme Court in 2016, and the Court heard arguments from parties in favor of and in opposition to the amendment.

In announcing its decision not to adopt the Daubert standard, the 4 liberal justices on the Florida Supreme Court gave as their only reason for doing so that it had “grave constitutional concerns” about the Daubert standard, including that it may undermine the right to a jury trial and deny access to courts. Conservative justices, in their dissent, noted that the federal courts and most states have been using the Daubert standard for years with no such constitutional issues. “Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not.”

The impact of this decision, in the short term, remains to be seen. Defense counsel will likely continue to argue that the Daubert standard should be applied, and Plaintiffs’ counsel that the courts should revert back to the Frye standard. Ultimately there must be an adverse decision on the use of the Daubert standard for one party or another that results in an appeal and, through the appellate process, reaches the Florida Supreme Court for determination on the merits of the issue. The litigation will concern the issue of whether the amendment is substantive or procedural. One issue that may alter any future outcome on the issue of the Daubert standard’s application in Florida is further appointments to the Florida Supreme Court by conservative Governor Rick Scott, which may swing the tide on the bench from its current split of 4 liberal justices and 3 conservative justices. 

The matter is In re: Amendments to the Florida Evidence Code, case number SC16-181, in the Supreme Court of the State of Florida.

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