Daubert Standard Expert WitnessesThe Florida Supreme Court has refused to recognize a 2013 law that was designed to bring the state’s expert witness standard in line with the majority of jurisdictions, holding that the law overreached into the court domain.

The Supreme Court reversed the decision of the Fourth District Court of Appeal in DeLisle v. Crane Co., et al., No. SC16-2182 and ordered reinstatement of an $8 million verdict for the plaintiff, who blamed his mesothelioma on exposure to asbestos in cigarette filters and in his workplace. It was a 4-3 decision.

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” Justice Peggy Quince wrote in the majority decision, joined by justices Barbara Pariente, R. Fred Lewis, and Jorge Labarga. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

The state legislature has authority over substantive law, and the court is responsible for procedural standards. This was a question of standards—one for the court alone to decide under the separation of powers, Quince stated in her opinion.

The change to the Daubert standard was supported by the Republican-controlled legislature and business groups. However, the change was opposed by plaintiffs attorneys.

Chief Justice Charles Canady wrote a scathing dissent, that was joined by justices Ricky Polston and Alan Lawson. Canady opined the court didn’t have the legal basis to decide the case because there had not been conflicting decisions in lower courts. Canady wrote that the majority “charts an unprecedented and ill-advised course” in the case.

“The constitutionality of (the 2013 law) is unquestionably an important issue that is worthy of consideration by this (Supreme) Court,” Canady wrote. “But the importance of an issue does not justify transgressing the constitutional bounds of this court’s jurisdiction. Instead, such an issue should be considered by this court only in a case that presents a proper basis for jurisdiction under our Constitution.”

Following the Daubert standard is “a lot more for the trial judge to do,” Quince wrote. “Basically, every expert is subject to being challenged as opposed to just new and novel theories. Frye only applies to new or novel theories.”

But the majority said DeLisle’s claim didn’t deal with new or novel science.

Supporters of Daubert argued that moving to this standard would keep “junk science” out of court cases. But those opposed to the switch held that a change in standard would make cases more expensive and time-consuming.

The opinion also describes Daubert as the more lenient standard, even though it applies more broadly to all cases and requires the trial court to evaluate the reliability of the science underlying expert testimony. This is because Daubert doesn’t require expert testimony be “generally accepted” in the scientific community.

Justice Quince found that Daubert was initially adopted by the United States Supreme Court because “otherwise probative and scientifically valid evidence was being excluded under the Frye standard ….”

Justice Pariente concurred in a separate opinion to state her contention “that the Daubert amendment also has the potential to unconstitutionally impair civil litigants’ right to access the courts.” She wrote about issues of the effect of increased hearings on motions to exclude experts under Daubert in increasing costs to litigants, resulting in attorneys rejecting worthwhile but lower-value claims and overburdening the court system with lengthy and technical hearings. However, Justice Pariente suggested that trial courts still play an important gatekeeping function under Frye and explained that “a proper and thorough application of Frye allows the trial judge to inquire beyond bare assertions of general acceptance.”

DeLisle won his Circuit Court lawsuit claiming that asbestos in the workplace and filtered Kent cigarettes caused his disease. R.J. Reynolds Tobacco Co. and gasket maker Crane Co. appealed. The Fourth DCA in 2016 reviewed the testimony of expert witnesses under the Daubert standard and overturned the verdict.

The Supreme Court’s ruling resolves the persistent question in the lower courts on the proper standard for expert testimony after the Supreme Court decided not to adopt the Daubert Amendment as a rule of court, to the extent it was procedural in 2017’s In Re: Amendments to the Florida Evidence Code, No. SC16-181.

“[T]he decision in DeLisle, which applied the Daubert standard, conflicts with earlier decisions by this Court that conclude Frye is the appropriate test,” the Supreme Court stated.