Daubert Standard Expert WitnessesThe Florida Supreme Court has reversed its position on the standard for expert testimony, adopting the Daubert standard, and reversing its previous decision to keep Frye. The majority held in a per curiam opinion:

We now recede from the Court’s prior decision not to adopt the Legislature’s Daubert amendments to the Evidence Code and to retain the Frye standard. As Justice Polston has explained, the “grave constitutional concerns” raised by those who oppose the amendments to the Code appear unfounded…

The change arises from an underlying case involving an $8 million personal injury verdict in DeLisle v. Crane, 258 So. 3d 1219, 1228-30 (Fla. 2018). In that case, the defendants challenged the admission of expert testimony. The Supreme Court ruled that expert testimony was properly admitted and shouldn’t have been excluded by the district court because medical causation testimony wasn’t new or novel and wasn’t subject to Frye analysis.

The Florida Supreme Court makes the sunshine state the latest to adopt the more rigorous Daubert standard that’s been applied in federal court for decades. There are 37 states that use the Daubert standard, which provides a five-prong test to determine the scientific validity of expert witness testimony. The bar is set higher for experts, who must attend a hearing before they’re permitted to testify. Under Frye, experts are allowed to testify based on their opinion on new or novel scientific techniques and general acceptance.

Florida’s Legislature enacted the Daubert standard in 2013; however, the Florida Supreme Court ruled that separation of powers invalidated that action, reasoning that only the Court had the power to make it.

The issue has divided the Florida Supreme Court, as noted by the three separate opinions that accompany the per curiam majority.

Justice Alan Lawson wrote:

I fully concur in the majority opinion and write separately to address Justice Luck’s contentions that: (1) we lack the authority to adopt this rule amendment now, and (2) we should not reconsider whether to codify the Daubert standard into our procedural rules until “we have a proper case or controversy,” […] in which to reconsider DeLisle v. Crane Co., holding that the standard for use in determining the admissibility of scientific evidence is procedural and not substantive, such that the standard can only be validly adopted by rule of court, and holding the statute adopting the Daubert standard to be an unconstitutional encroachment on this Court’s rulemaking authority.

Lawson disagreed with Justice Luck’s criticism that the majority wasn’t following the process set forth in rule 2.140.

With respect to Justice Luck’s contention that the Court should wait for a “proper case” to reconsider DeLisle, Justice Lawson noted that the Court “routinely adopts evidence rules ‘to the extent that they are procedural’—without deciding whether they are procedural.”

The concurring opinion, Justice Lawson wrote, in fully concurring in the majority opinion,” “is willing to double down on our mistake in DeLisle by treading on the legislature’s turf and adopting a substantive rule as procedural. I am not. I’d rather fold and wait to play another hand.”

In a dissent, Justice Robert Luck regretted that he couldn’t join the majority opinion in adopting Daubert. “I really do,” he wrote. Luck believes that the Court’s decision in DeLisle was wrong, and the Court should overrule it when it has a proper case or controversy. Justice Luck said he couldn’t join the majority’s opinion because he thought that the majority adopted the amendments to section 90.702 as procedural rules without following the procedure for adopting rules. In addition, “the majority opinion rests on DeLisle’s erroneous holding that the Daubert amendment is a procedural rule, rather than a substantive law, that can be adopted by the court.”

“[W]e must follow our own rules if we expect anyone else to…” he warned.

Finally, Justice Jorge Labarga in his dissent, wrote that in his view, “Frye is the superior standard for determining the reliability of expert testimony.”

The text of the opinion can be found here.