Prepared by Justin Siegwald, Esq.
In 2013, the Florida Legislature amended Section 90.702 of the Florida Rules of Evidence, effectively incorporating Daubert as the standard governing the admissibility of expert witness testimony. Daubert, the standard used by federal courts, relies upon trial courts to determine the reliability of an expert’s testimony by conducting a detailed analysis of the facts, data, principles, and methods supporting an expert’s opinion, as well as to the expert’s application of those principles and methods. Daubert proponents have long contended that the Daubert standard, in comparison to Frye, promotes greater reliability for expert testimony. Daubert opponents, however, contend that the standard is often misused and tends to add expenditure to an already over-burdened court system.
Four years after the Legislature amended Section 90.702, the Florida Supreme Court issued a rules decision on the amendment. Although that decision did not invalidate the amendment because there was no “case or controversy” on appeal that would permit the Court to quash the amendment, the Court declined to adopt the Daubert standard for use in Florida’s state courts. That changed, however, when DeLisle came before the Court. In DeLisle, the Court overruled the Legislature’s incorporation of Daubert on constitutional grounds and effectively determined that Frye was the standard governing expert testimony in Florida’s state courts.
In DeLisle v. Crane Co., the plaintiff sued a number of defendants after contracting mesothelioma from exposure to asbestos from both gaskets used at his job and cigarette filters in his cigarettes. The plaintiff’s own experts did not agree on which products produced sufficient exposure to asbestos to constitute a substantial contributing factor to the plaintiff’s disease. The defendants challenged each expert’s opinions under the Daubert standard, challenges which the trial court rejected. The jury ultimately awarded the plaintiff an $8 million verdict. On direct appeal, the Fourth District Court of Appeal reversed the trial court’s decision to admit the expert testimony, finding that the trial court failed “to properly exercise its gatekeeping function” as to several of the experts.
The Florida Supreme Court, in turn, reversed the Fourth District. In doing so, the Supreme Court determined that the Legislature’s codification of Daubert violated the Florida Constitution. Specifically, the Court determined that the standard for admitting expert testimony under Section 90.702 was procedural in nature. In that regard, according to the Court, only the Court had the power to amend it. Additionally, and in no uncertain terms, the Court established that the Frye standard was the standard for Florida’s state courts regarding the admissibility of expert testimony. (It should be noted that the Daubert standard continues to be used by federal courts). The Court also expressed worries that the potential time and expense created by “Daubert proceedings” could affect litigants’ access to courts.
Under the Frye standard, an expert’s expected testimony must be based on “generally accepted” principles in the scientific community. Critics of the Frye standard argue that it opens the door to “flawed scientific evidence.” In DeLisle, the Court answered some of this concern by stating that Frye only applies to cases where the expert’s opinion is based upon new or novel scientific techniques.
Going forward, pending Daubert motions will need to be reevaluated under a Frye analysis. Of course, any future motions directed toward the admissibility of an expert’s testimony will need to be done pursuant to the Frye standard. Should you have any questions in this regard, please do not hesitate to contact us.
For more information about what this means for you and your files, please feel free to contact Robert Bowling or Jeffrey Vernis