In a recent blog (Link: http://www.forensisgroup.com/blog-articles/are-your-expert-witnesses-ready-for-daubert), I commented that the California Supreme Court seems to be on the precipice of adopting the United States Supreme Court’s expert testimony admissibility test provided in Daubert v. Merrell Pharmaceuticals, Inc, 505 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 1993.
The Daubert standard is in the news again as the Florida House Civil Justice Subcommittee has just approved PCB CJS 13-02 (“Expert Testimony”) along a 9-4 party-line vote on February 13th, 2013. The Bill, which would bring Florida in line with the majority of states that utilize the Daubert standard, should be presented to the full Florida House and Senate for approval in the near future.
The current standard for Florida expert witnesses, known as the Frye standard, requires a court to determine whether proposed expert testimony is consistent with generally accepted principles within the applicable field of expertise. According to the Florida Chamber of Commerce, this 85 year-old standard is too amorphous. They believe that business interests would be better served by Daubert, which requires the trial judge to act as a “gatekeeper” in determining whether the expert testimony is based upon scientifically sound principles.
David Hart, the Executive Vice President of the Florida Chamber, has endorsed this proposed change, claiming that the Frye standard is killing jobs because it “imposes burdensome costs on employers, consumers, small businesses and the health care community.”
According to the article, a more stringent expert witness standard will vastly improve the integrity of Florida’s court system. Presumably this will negatively impact both the number of civil actions filed as well as the costs of the awards. Not surprisingly, the article claims that plaintiffs’ attorneys are “lining up” to oppose the new standard.
The Chamber of Commerce claims that adopting the Daubert standard will save Florida families and businesses “$2.8 billion and increase employment by 2 percent.” Not being an economist, I won’t comment on the accuracy of those numbers. But the stars seem to be aligning for Florida to join the majority of states that have adopted Daubert.
As I stated in my earlier blog, Daubert, requires the court to apply a three prong test in determining the admissibility of expert testimony: 1) whether the proposed expert theory or technique has been scientifically tested; 2) has the court been made aware of its known or potential error rate; and 3) whether it has been subjected to peer review and attracted widespread acceptance within the relevant scientific community.
To return from the prior blog, wherever you practice law, make certain that your expert is Daubert tested and approved before you get to court.
By: Ian Heller, J.D.