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Florida Governor Rick Scott recently signed controversial legislation which overturned the long-standing thresholds as to what type of expert witness testimony is admissible in state courts.

HB 7015 restricts Florida state courts concerning the admission of expert testimony by abolishing the 90-year old Frye standard.  Frye allowed scientific evidence to be admitted if it was “generally accepted” as being reliable within the relevant scientific community. The new legislation sets out more rigorous criteria.  The shift is to Florida’s standards for evaluating the admissibility of expert witness testimony away from the Frye standard to the Daubert standard, which is used in federal courts and other states.

The Daubert standard holds that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) 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;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.

That wording was added to amend Florida Statute § 90.702.

Governor Scott said, “These are reasonable standards, yet they weren’t practiced in Florida. In fact, Florida was the only state in the South that did not use this common sense method for determining who is an expert. By signing HB 7015 into law, we will create a fairer system for Florida families.”

Some detractors argued that the legislation will make it more difficult and more expensive for injured people to pursue legitimate cases.  Senator Maria Lorts Sachs, D-Delray Beach, as reported in law360, pointed to a New York University study that showed that implementation of the Daubert standard could have a narrowing effect on a citizen’s access to court.

Despite these concerns, a 30-9 majority in the Senate voted in favor of Daubert’s three-pronged test, which says a witness may testify as an expert in a particular field if the testimony “is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case.”

Senator Joe Negron, R-Palm City, admitted it might take judges some time to get used to the new system, in which they play a more significant part as gatekeepers charged to hold mini-hearings and rule on whether testimony meets the standard, but he thinks they will be prepared.

“Judges have to have the ability to be nimble and think on their feet,” he said, adding that they already know what the Daubert standard is.

The Frye standard, originating in the 1923 case Frye v. United States, was abandoned by the United States Supreme Court in 1993 upon ruling in Daubert v. Merrell Dow Pharmaceuticals that the rules of evidence superseded that standard.  Nonetheless, Florida courts have continued to follow Frye in decisions such as Brim v. State in 1997 and Marsh v. Valyou in 2007.

There have been 20 states have moved to the Daubert standard since it was announced in 1993, while over a dozen other states have implemented some elements of Daubert.
Senator Garrett Richter, R-Naples, said, “For too long, lawyers put so called expert witnesses on the stand in courtrooms with little review as to whether they actually understood the material. This bill will provide courts with a reliable set of criteria to assess whether an expert witness actually lends real credibility to a case, which will improve Florida’s legal climate.”

HR 7015 received a final 70-14 vote from the House.  The switch to the Daubert standard went into effect July 1.

Senator Tom Lee, R-Brandon, chair of the Senate Judiciary Committee, said the bill would allow a better opportunity for evidence law to be able to evolve over time, and he applauded that under Daubert the appeals process would be tightened to cover only whether a lower court abused the evidence standard and not all of the technical details of a decision.  “This legislation applies common sense to the law by ensuring expert witnesses must have knowledge in the specialized medical fields that are being deliberated upon in the courts. It also provides clarity to the law in ensuring doctors have access to attorneys for potential suits,” Lee said.

By: Kurt Mattson, J.D., L.L.M.