In 2013, the Florida legislature adopted the standard outlined in Daubert v. Merrill Dow Pharmaceuticals (509 U.S. 579) as the requirement that expert witnesses must meet in order to provide testimony in court. A little over a year later, the implications of that legislative decision are many, with numerous issues arising that pertain to expert witnesses. This article discusses the results of implementing Daubert as seen over the past year, rather than the statute itself.
Plaintiffs’ attorneys in Florida were the most resistant to changing the evidentiary standard for experts from the Frye to Dauberttest, as they anticipated that their expert witnesses would face more rigorous scrutiny. They were correct in predicting that the legal landscape in Florida has shifted quite a bit since 2013, and many specific issues: from the fact that Daubert is, in itself, a stricter test of expertise than Frye was, to the knowledge that Florida has had little experience with Daubert hearings in the past (particularly when compared to other jurisdictions that have utilized the Daubert standard for decades). Indeed, many of the predictions made by the Florida Plaintiffs’ Bar have come true. So far, however, what plaintiffs’ attorneys feared may not have turned out so badly, after all.
For example, it is certainly the case that in litigation where any party offers an expert opinion without a scientific basis, as well as peer-reviewed concurrences, studies, and testing, the expert’s testimony is much more likely to be thrown out. However, this does not necessarily disproportionately harm plaintiffs’ lawyers. In fact, it may save resources of parties and their attorneys by causing them to only file cases that have a solid background and are not highly questionable in their theories. This, in turn, saves lawyers and clients the time and costs involved in bringing a case that, under Daubert, would likely be dismissed due to insufficient expert evidence. In addition, lawyers who are bringing more cases with testimony that is more solid, scientifically speaking, will have clients who are more likely to prevail. Although Daubert has required adaptation on the part of counsel, it does not necessarily translate into a disadvantageous position for plaintiffs. Moreover, defense attorneys and their experts are also subject to Daubert. Plaintiffs will have some breathing room, as defendants who might, pre-Daubert, bring experts with theories that had scant scientific backing, will no longer be able to advance those theories and potentially damage a plaintiff’s case.
Many attorneys in Florida were concerned with how the required Daubert hearings would function. Certainly, this was a valid concern. Any time that a legal system lacks familiarity with something and is then responsible for doing something entirely new, uncertainty arises. The Daubert evidentiary hearing is a pretrial event where a judge will decide if the expert witnesses proffered to advance a particular cause of action are reliable enough, under Daubert, for the case to continue. Again, while some attorneys were concerned that these hearings would cause them to have large expenditures, only to be unable to proceed at the trial phase, several factors mitigate against this result. First, as aforementioned, attorneys can be more careful when initially selecting a case, saving themselves and their clients time and money. If a case will not pass muster at a Daubert hearing, in the opinion of an attorney, those cases will not be brought. The result is to reduce questionable cases, as well as to strengthen the cases (and potentially a favorable outcome) for the ones that do make it. The main component of passing the Daubert test is to be able to demonstrate that a particular expert’s opinion is backed by reliable, scientific data, using methodologies that can be duplicated by independent testing. Attorneys on both sides in Florida need not worry that Daubert means death for their theories. Rather, they should concentrate on retaining the best expert witnesses in the field and, while Florida is still rather new at applying Daubert, any attorney who utilizes an expert who is not only familiar with Daubert, but has testified and been subjected to the Daubert standard many times, is a step ahead of their opponent. Finding an expert witness with the ability to withstand Daubert challenges is not difficult, even though many experts in Florida were previously accustomed to the more lenient Frye standard, because federal cases in Florida have been subjected to Daubert for years, so there are a host of experts available in state to meet the test. Moreover, retaining an out-of-state expert who knows the ins and outs of Daubertmay also be of assistance to attorneys. In either event, there are plenty of expert witnesses who know the ropes and whom attorneys can avail themselves of.
Finally, some commentators expressed concern that attorneys and clients would incur additional expenses when Florida switched to Daubert because the experts would be more costly. While this concern is certainly valid, it is highly unlikely to be the case. This is because expert witnesses are only valuable insofar as their theories and testimony are truly useful to a party. Accordingly, it was not only the courts or attorneys in Florida who have had to deal with some new territory. Experts who were only able to understand how to qualify themselves under Frye have not been useful or in demand as testifying witnesses in Florida since 2013. The experts, too, have to adapt and accustom themselves to Daubert, and make sure that they have done a better job than might have been previously required, or there would be no demand for their services. No attorney should have to pay more for an expert who can pass the Daubert test, versus one who cannot, because the latter would not be able to find work as an expert witness in the Florida courts.
Judges, lawyers, and experts have certainly had to adapt their styles in order to comport with a different set of standards, but if everyone conscientiously plays by the new rules, no one should be at a disadvantage. While the transition period of the past year may have been confusing at times for Floridians, the concerns raised about Daubert should largely take care of themselves with a little time and experience on all sides.
By: Kat S. Hatziavramidis, Attorney-at-Law