Trial News

After previously declining to adopt amendments to the Florida Evidence Code replacing the Frye standard for expert testimony with Daubert, the Florida Supreme Court, 5-2, has changed course and adopted Daubert with immediate effect. (In re Amends. to the Fla. Evid. Code, 2019 WL 2219714 (Fla. May 23, 2019).)

Last November, the Florida Supreme Court rejected amendments to the Florida Evidence Code adopting Daubert to the extent that they were procedural because of constitutional concerns, as Trial News previously reported. Now, the state high court, based on its “longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature,” has adopted the amendments to §§90.702 (testimony by experts) and 90.704 (basis of opinion testimony by experts).

The court had long followed the expert testimony standard from Frye v. United States (293 F. 1013 (D.C. Cir. 1923)), which states that expert testimony should rely on “well-recognized scientific principle or discovery.” In previous case law, the state high court had rejected arguments that the state legislature’s adoption of an evidence code superseded Frye and replaced it with a balancing test. Even after the U.S. Supreme Court adopted Daubert in 1993, the Florida Supreme Court continued to use Frye.

When the amendments passed in 2013, the court refused to adopt the amended code to the extent that it was procedural because of concerns that it was an unconstitutional infringement on the court’s authority to make procedural rules. (In Re Amends. to the Fla. Evid. Code, 2017 WL 633770 (Fla. Feb. 16, 2017).) At the time, the court stated that it would have to wait for a “case or controversy” before ruling on the amendment’s merits. That opportunity arose in DeLisle v. Crane Co. (2018 WL 5075302 (Fla. Oct. 15, 2018)): The court affirmed Frye as the appropriate standard and explained that the amendments were procedural because they governed “the actions of litigants in court proceedings” and they conflicted with the existing standard for expert testimony that the court already adopted through its case law.

In this latest development, the court’s majority, in a brief opinion, noted two points from the Florida Bar’s Code and Rules of Evidence Committee’s minority report in favor of the amendments: Daubert fixes certain deficiencies in the Frye standard and following Daubert will create consistency between state and federal courts, thus promoting “fairness and predictability.”

Justice Jorge Labarga dissented, writing that he believes “Daubert and its progeny drastically expanded the type of expert testimony subject to challenge” and that the amendments “will negatively impact constitutional rights.” Labarga explained that he agreed with the committee majority report “that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts.”

Miami attorney James Ferraro, who represented the plaintiff in DeLisle, said, “Daubert’s higher standards have become a sword, not a shield, prompting excessive motions against expert witnesses. If it’s a qualified scientist talking about generally accepted science and it’s relevant to the case, it goes to the jury because that’s what a jury trial is about. That’s where the gatekeeping should end.”