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From Products Liability Law Daily, February 17, 2017

Florida high court rejects adoption of Daubert expert testimony standard

By Susan Lasser, J.D.

By a 4 to 2 decision, the Florida Supreme Court has declined to adopt an amendment to the Florida Evidence Code that would change the standard of admissibility of expert testimony in the state, to the extent the change is procedural. The Florida legislature’s amendment to the Code adopted the Daubert standard for admitting expert opinion evidence to replace the Frye standard. In its regular cycle report, the Florida Bar’s Code and Rules of Evidence Committee (Committee) recommended that the Florida high court not adopt, to the extent it is procedural, the legislative amendment. The court agreed with the recommendation, finding that the constitutional concerns raised by the Committee and commenters should be left for a proper case or controversy (In re: Amendments to the Florida Evidence Code, February 16, 2017, per curiam).

In 2013, the Florida Legislature amended the state’s evidentiary code by changing the standard of admissibility for scientific expert evidence from the long-standing Frye standard (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) to the Daubert expert evidence standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The state high court noted that the Frye test only applies to expert testimony based on new or novel scientific evidence. To introduce such expert testimony, the scientific principle or discovery on which the testimony is based must be sufficiently established to have gained general acceptance in its particular field.

Under FRE 702, a qualified witness can offer testimony if (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. In 1993, the U.S. Supreme Court, in Daubert, held that the Federal Rules of Evidence superseded Frye’s general acceptance test for the admissibility of scientific evidence. In addition, in interpreting FRE 702, Daubert provides that the trial judge, acting as a gatekeeper, "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."

Daubert Amendment. The Florida legislature adopted the Daubert standard and FRE 702 with two amendments to the state’s evidence code. First, the legislature amended section 90.702 of the Laws of Florida to mirror FRE 702; and second, section 90.704 addressing the basis of opinion testimony by experts, was amended by adding the following text: "Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect."

Adoption of recommendation. The Committee recommended that the Florida Supreme Court not adopt the Daubert Amendment, to the extent it is procedural. The court noted that both the Committee and commenters who supported the recommendation raised "grave constitutional concerns," including that the amendment undermined the right to a jury trial and that it denied access to the courts. The court said that it does not address the constitutionality of a statute or proposed rule within the context of a rules case, but there possibly being "grave concerns about the constitutionality of the amendment" had been a basis previously for the court’s not adopting an amendment to the Evidence Code to the extent it is procedural. Therefore, the court declined to adopt the Daubert Amendment to the extent that it is procedural because of the constitutional concerns raised, which the court said must be left for a proper case or controversy.

Dissent. Justice Polston dissented stating that he would adopt the legislature’s amendment. He noted that since the U.S. Supreme Court’s decision in Daubert, the standard has been "routinely applied in federal courts" and "the clear majority of state jurisdictions also adhere to the Daubert standard." He also observed that 36 states have rejected Frye in favor of Daubert to some extent, and asked rhetorically, "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?" His answer: "Of course not." Finally, he stated that he knew of no reported decisions holding that the Daubert standard violates the constitutional guarantees of a jury trial and access to courts. Rather, he noted, there is case law holding that the Daubert standard does not violate the constitution.

The case is No. SC16-181.

Attorneys: Peter Anthony Sartes, II (Law Offices of Tragos, Sartes & Tragos, Clearwater) for Amendments to the Florida Evidence Code Evidence. Patrick Michael R. Alford (Raymond James Financial Services, Inc.) for Raymond James Financial Services, Inc.

Companies: Amendments to the Florida Evidence Code Evidence; Raymond James Financial Services, Inc.

MainStory: TopStory ExpertEvidenceNews LawsPendingLegNews FloridaNews

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