Before June of 2014, Florida was one of a few states that applied an older standard of review to expert witness testimony. Prior to its Perez v. Bell South decision, Florida, as well as a handful of other states, used the Frye test to whether expert testimony was scientifically reliable. After Perez, however, any claim brought in a Florida state court is subject to the more rigorous standard of Daubert, and the Daubert standard is much more comprehensive and exacting than its Frye counterpart.
Before the Florida Third District appellate court spoke in the Perez case, any state law claims that were brought in Florida court were held to a lower standard when determining the admissibility of expert witness evidence. That standard, otherwise known as the Frye test, merely requires a court to decide whether an expert witness’s testimony is based upon “sufficiently established” and generally accepted scientific methodologies. See Frye v. U.S., (D.C. Cir. 1923).
In the Perez case, the plaintiffs initially argued that a doctor’s testimony about a particular matter should be adhered to because the expert’s opinion was generally accepted in the medical community and therefore met the Frye standard. On appeal, however, Florida’s Third District Court felt differently, making two important holdings for attorneys and experts to be aware of for future state law cases in Florida.
First, the Court decided that the Frye standard no longer applies to Florida state law claims and, instead, adopted the more common and stricter test embodied in Daubert v Merrell Dow Pharmaceuticals. See 509 U.S. 579 (1993). The Daubert standard requires more than simply “general acceptance” to permit the use of expert testimony that is based on science. Instead, Daubert, which is codified in Federal Rule of Evidence (FRE) 702, requires that: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Id.
A good explanation of the difference between Frye and Daubert is that under Frye, the expert’s conclusions are what matter most, and if a court is persuaded that those conclusions are generally accepted by the scientific community, it can uphold an expert’s opinion. Daubert, however, has the court evaluate both the expert’s conclusions and methodologies. This meant that in Perez, the court decided that it did not matter whether the doctor’s conclusions were sufficient, because it found a lack of credibility with the way in which those conclusions were reached. Put simply, the court rejected the expert’s methods in Perez, so his conclusions became a moot issue.
Second, the Court in Perez made its holding apply retroactively. This means that any state law claims that were brought in Florida and that made use of an expert are now subject to the standards outlined in Daubert (and also FRE 702). This could make a major difference in many cases, because even cases that were brought before the Perez court made its decision are now subject to the higher Daubert standard, rather than being permitted to rely upon Frye. See Perez, Supra. If a state-based claim has been brought on or after July 1, 2013, it is subject to the Daubert test, even if the cause of action occurred before that date, according to the Perez court. Id. Under the Daubert test, “pure opinion” testimony is completely excluded from consideration by a court. An expert’s testimony is now subject to the standard that the federal courts use, which requires a much more searching inquiry into how that expert reached certain scientific conclusions and what methods were employed.
The effect of the Perez case on future litigation will be far-reaching, as the court’s decision now brings Florida state law cases in line with federal ones, holding that both are subject to the standards outlined in the Daubert test. Perez is also far-reaching, in the sense that it applies retroactively to any cases that are currently pending and were filed prior to July of 2013. Experts involved in pending litigation must understand that their current obligation is to meet the Daubert standard, and attorneys should prepare their cases accordingly. However, Perez has an additional reason for being important: It finally brings state law cases in Florida in line with the majority of jurisdictions, which have used the Daubert test for decades. Aside from California and Illinois, nearly every state jurisdiction has adopted some version of Daubert, and all federal cases employ that test. Some commentators say that Florida’s decision to choose the more modern and stringent test for expert testimony was only a matter of time. Others predict that Illinois and California may be next. In either event, Perez is one decision that both experts and attorneys should pay careful attention to, as it may require them to change their ligation strategies in existing cases and prepare differently for future ones.
By: Kat S. Hatziavramidis, Attorney-at-law