Over the past year, a number of state supreme courts have decided to re-evaluate what evidentiary standard to apply when addressing the admissibility of expert witness evidence. See, e.g., Michelle M. Bufano & Lewis M. Russo, ”’Accutane’ Appeal Presents Opportunity For NJ To Adopt ‘Daubert,’” New Jersey Law Journal, Dec. 18, 2017, at https://www.law.com/njlawjournal/sites/njlawjournal/2017/12/08/accutane-appeal-presents-opportunity-for-nj-to-adopt-daubert/ (last visited Apr. 26, 2018); See Celia Ampel, “Much-Debated ‘Daubert’ Standard Has Its Day in Florida Supreme Court,” Law.com, at https://www.law.com/dailybusinessreview/2018/03/05/much-debated-daubert-standard-has-its-day-in-florida-supreme-court/ (last visited Apr. 26, 2018).
The Florida Supreme Court granted a writ of certiorari to determine whether it will continue to follow the Frye rule that currently governs the admissibility of expert testimony, or if Florida will adopt the federal Daubert standard instead. See id. This decision is anticipated with a great deal of concern by some attorneys, and much controversy exists over which policy the Court should apply. See, e.g., id. This article assesses Florida’s current way of handling expert witness evidence and examines the possibilities that may ensue once the Court rules on the matter.
(1). Background: Not only are expert witnesses integral in many cases, but their testimony/statements are often required in order for parties to even file certain types of complaints, such as medical malpractice suits. The potential shift in any state’s rules on the extent to which expert opinions are admissible is one that affects litigators, experts, and adjudicators. Not only are parties who reside in the state in question affected by such cases, but out-of-state litigants who seek certain venues based on the applicable rules are also impacted. See, e.g., Michelle M. Bufano & Lewis M. Russell, supra. Because such decisions are momentous and can change legal equations entirely, it is important to examine what the possibilities are when a state decides to re-examine its admissibility rules for expert witnesses.
In 2017, the Court upheld Frye and expressly rejected the Daubert law because it believed “a rule change would raise constitutional concerns, including access to justice that ‘must be left for a proper case or controversy.’” Id. Nonetheless, Frye has been challenged in Florida numerous times, and litigants have asserted that “Daubert is constitutional and more flexible than Frye” and that Frye has led to unjust results in certain instances. Id.
(2). The Stakes: The standard that Florida should apply to expert testimony is hotly-contested among members of the legal community. See, e.g., Celia Ampel, supra. For instance, proponents of adopting Daubert have claimed that “[t]he civil and criminal defense bar supports the Daubert standard, which requires a trial judge to ensure the relevance and reliability of scientific testimony or evidence. ‘It will keep junk science out of the courtroom,’ said [one] attorney…, who leads the amicus committee of the Florida Defense Lawyers Association. Daubert is used in all federal and most state courts.” Id.
(3). The Arguments: Many attorneys feel the Frye rule, which federal courts utilized prior to Daubert, and which Florida employs at present, should be upheld, and they argue that Daubert would be inappropriate. See, e.g., id. Numerous opponents of Daubert maintain that “plaintiffs[’] attorneys want Florida to keep the long-used Frye standard, which only asks the court to look at new or novel evidence to make sure it’s based on generally accepted science. The Daubert standard gives the trial judge ‘wide latitude’ to determine the admissibility of expert testimony. That latitude is often abused. …’ [Daubert has] been used to exclude people from court more often than not.’” Id.
Some legal analysts argue that the current Frye standard Florida uses encourages “forum shopping” by litigants, which drains judicial resources. See, e.g., id. If the Court upholds Frye, certain plaintiffs may believe that bringing suit in Florida will improve their odds of success because they think their experts will face less scrutiny. See, e.g., id. Several defense attorneys contend that Frye has led to incorrect and unfair results and that such injustices are more important than whether Frye causes forum shopping. See, e.g., id.
No matter which side attorneys represent, all expert witness evidence will be affected by the Court’s ruling. If the Florida Supreme Court continues to employ Frye, judges may be more lenient and allow experts who would not be admitted by Daubert to testify. This has both advantages and consequences for lawyers. On the one hand, a litigant’s experts are often more likely to be admitted by judges who utilize the Frye test. However, this situation can cause unforeseen problems for attorneys. If an expert is admitted but is not well-respected, has a problematic reputation, or asserts a theory that either lacks corroboration or is rejected by most specialists in a particular field, the party using that expert may pass the admissibility test but face embarrassment before a jury. An adept cross-examiner may still be able to expose that expert’s weaknesses, and admissibility does not automatically translate into jurors finding a witness’s opinion to be credible or persuasive.
In addition, attorneys on both sides may have a harder time with challenging more lightly vetted experts. Litigators could challenge and possibly get certain expert testimony excluded under the Daubert rule. With Frye, lawyers may be able to count on a higher probability of their own experts being admitted, but their opponents’ experts have the same advantage. At that point, a rule that a party felt was initially favorable could backfire if an adverse expert lacks credibility but is deemed admissible by courts adhering to Frye.
Some commentators express concern that Frye allows for “junk science” to be admitted, which juries may then consider authoritative and rely upon in reaching their verdicts. See, e.g, id. On the other hand, others argue that Daubert would take power away from juries to determine the validity of expert testimony and cause unnecessary expenditures and delays. See, e.g., id.
Both sides claim that the standard they oppose (whether it’s Daubert or Frye) will lead to court clog. See, e.g.,id. Both groups also express concern that the rule they contest may lead to unjust verdicts and give too much power to corporate concerns, rather than the needs of the people. See id. The standard that Florida should adopt to decide the admissibility of expert testimony is hotly debated, and several prominent legal organizations have filed amicus briefs for both the petitioners and the respondents.
The deep-seated controversies over this issue, potential impacts of whatever decision the court makes, and high stakes involved in this case indicate that the Florida Supreme Court has a daunting and important task to perform. Some legal analysts have already expressed that the case will be a close one, regardless of the verdict. See id.
(4). What If the Rules Change?: If the Florida Supreme Court adopts Daubert, lawyers and judges must face how to adapt to a new set of rules and will have to determine how courts should perform the gatekeeping function Daubert calls for. Litigators will have to vet their experts meticulously. Failure to do so could result in attacks on their experts’ credibility, excluding particular expert testimony, and/or dismissal of a case or claim.
Attorneys should be just as rigorous when evaluating opposing experts. If they feel that an adversarial witness is not reliable according to Daubert, lawyers may consider challenging such testimony in pre-trial motions, attacking their qualifications and conclusions in depositions and cross-examination, and asking a court to exclude certain witnesses. In certain instances, a motion for summary judgment (or other motions) to dismiss a case/claim may be an appropriate strategy. With respect to cases that require expert evidence for a party to even file a complaint to be filed, challenging an expert can mean eliminating the lawsuit entirely.
The lawsuit led to the Court agreeing to reconsider whether to maintain Frye was remarkable, in that it marks the “first time the Florida Supreme Court will directly consider adopting the Daubert standard, which was passed by the Florida Legislature in 2013. Last year, the court declined to adopt the amendment.” Id. Considering that a number of litigants have requested the Court to adopt Daubert for years and that the state Congress also tried to make Daubert the law, it is noteworthy that the Court finally decided to undertake this matter. See, e.g., id.
The case currently under review is unique in the face of the Court’s prior refusals to follow the standard used by the federal courts and most states, and the Court flouted its legislature’s attempt to adopt Daubert. Given this background and the stakes involved, the outcome of this case is highly uncertain. See, e.g., id. Some analysts have suggested that the Florida Supreme Court’s willingness to hear arguments in favor of Daubert replacing Frye indicates its interest in adopting Daubert. See, e.g., id. However, the Court’s history of opposition to Daubert may simply signify that it decided to hear the challenge in order to reaffirm its commitment to Frye. See, e.g., id. It may also reflect a desire to establish that the Court, not the legislature, is the ultimate authority on the issue of admitting expert testimony. See, e.g., id.
Regardless of what the Florida Supreme Court decides, much is at stake for attorneys, experts, courts, and individuals. Its ruling will undoubtedly affect a large number of current and prospective litigants, and it may result in some parties changing their decisions on whether to file suit in Florida or not. Attorneys should pay very close attention to this case, and once the Court issues its verdict, strategic decisions must be made. Such decisions should reflect a careful assessment of how much scrutiny experts (whether friendly or adverse) will face, a plan for how to address the admissibility rules, and a consideration of what steps can be taken to ensure that lawyers are prepared to handle expert witnesses in a way that maximizes their clients’ chances of success.