Florida Supreme Court reverses course: the Daubert Standard is the law of the land
On May 23, 2019, the Florida Supreme Court issued its opinion in In re: Amendments to the Florida Evidence Code in which the Court reversed its previous position on what standard governs the admissibility of expert testimony. As a result of its opinion, Florida has now replaced the Frye standard with the Daubert standard for admissibility of expert testimony. A copy of the Florida Supreme Court’s opinion can be read here.
The Court’s decision comes after long debate on which standard should govern the admissibility of expert testimony in Florida. The Frye standard was announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under Frye, expert testimony which has been formulated from generally accepted scientific principles in the particular field of expertise is generally admissible.
However, in 1993, the United States Supreme Court addressed the continued applicability of the Frye standard in light of the Federal Rules of Evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). There, the US Supreme Court found that Frye had been superseded by the Federal Rules of Evidence. The Daubert Court made clear that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589. At the federal level, in ensuring such reliability, the courts use numerous factors listed in Federal Rule of Evidence 702. Since the US Supreme Court’s ruling in Daubert, the Daubert standard has been used at the federal level and been adopted by 36 states.
Prior to 2013, Florida law was clear that the Frye standard governed admission of expert testimony. In 2013, the Florida Legislature incorporated the Daubert standard into the Florida Rules of Evidence with amendments to sections 90.702 and 90.704 of the Florida Evidence Code. However, under the Florida Constitution, while the Legislature can established “substantive” rules, rules deemed “procedural” must be adopted by the Florida Supreme Court pursuant to its rulemaking authority. Towards that end, in 2017, the Florida Supreme Court declined to adopt the proposed Daubert amendments to the extent the amendments could be considered procedural. In declining to adopt the Daubert standard, the Florida Supreme Court cited grave constitutional concerns, such as the impingement on the right to a jury trial and access to courts. A copy of the Florida Supreme Court’s 2017 opinion can be read here.
Subsequently, the constitutionality of the Legislature’s amendments to 90.702 and 90.704 were addressed by the Florida Supreme Court in DeLisle v. Crane Co., et al, No. SC16-2182 (October 15, 2018). However, the Court did address the “grave constitutional concerns” hinted at in declining to adopt Daubert; instead, the Court focused on procedure. In DeLisle, the Florida Supreme Court held that the adoption of Daubert or Frye was a procedural question and that the Florida Supreme Court precedent established that Frye was the appropriate standard for expert testimony. As a result, the Florida Supreme Court held that for the Legislature to overturn Frye, amendment to 90.702 required a two-thirds vote. Thus, as the amendments did not meet such a requirement, the Florida Supreme Court held that such amendments were unconstitutional procedural rules. As of October, 2018, it appeared that Florida law was settled that the Daubert standard announced in 90.702 was an unadopted procedural rule and therefore, Frye was the law of the land.
However, on May 23, 2019, the Florida Supreme Court, pursuant to its rulemaking authority under the Florida Constitution, adopted the Daubert amendments and made the Daubert standard the law of the land for admissibility of expert testimony under Florida law. Thus, as it currently stands, Florida Courts will have to govern the standard of admissibility of expert testimony under the factors articulated by 90.702 which states:
Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
While it appears that Daubert is now the law of the land, it is important to note that Frye may again live to see another day. As the Florida Supreme Court explained, “in deciding to now adopt the Legislature’s Daubert amendments, we do not decide, in this rules case, the constitutionality or other substantive concerns that have been raised about the amendments. Those issues must be left for a proper case or controversy.” Fuerst Ittleman David & Joseph will keep a keen eye out for developments as the Frye/Daubert debate continues to unfold.
The litigation and appellate attorneys of Fuerst Ittleman David & Joseph have extensive experience litigating complex matters in a variety of forums throughout Florida and across the United States. If you are in need of assistance please contact us at 305-350-5690 or contact our appellate practice group chair Jeffrey J. Molinaro, Esq. at jmolinaro@fidjlaw.com.