Flip-flopping, Florida Supreme Court adopts Daubert

BVWireIssue #201-1
June 5, 2019

expert testimony
daubert, expert testimony, admissibility, Frye

In a startling move, the Florida Supreme Court recently ruled that, “effective immediately upon the release of this opinion,” the state would adhere to the Daubert standard when assessing the admissibility of expert testimony. Doing so, the court reversed its October 2018 decision to stick with the Frye standard.

The issue of which standard to follow is a contested one in Florida. In 2013, the Florida legislature rejected the long-standing Frye standard by amending the Florida code, section 90.702, dealing with expert testimony, to incorporate the Daubert standard in the state’s rules of evidence. Then, in October 2018, the state’s Supreme Court found the legislature had overstepped its authority, declared the amendment unconstitutional, and reinstated the Frye standard.

As our prior reporting noted, the validity of the Daubert standard became an issue in a personal injury case in which the plaintiff claimed the defendants’ products exposed him to asbestos that caused his illness. Following a split between the trial court and the appeals court on the applicable standard, the plaintiff petitioned the state Supreme Court for a determination of whether the 2013 legislative change on expert testimony infringed on the high court’s rule-making authority. The Supreme Court said it did.

It said: “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.” Frye, the Court explained, relied on the scientific community to assess reliability, whereas Daubert “relies on the scientific savvy of trial judges to determine the significance of the methodology used.”

A majority of the court concluded: “With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

Seven months later, the court walked it all back. “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.” The court said the “grave constitutional concerns” some opponents of the amendments had expressed “appear unfounded.” Moreover, “the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping,” the court stated.

It added that the latest move accorded with the court’s “exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.”

To read the Florida Supreme Court’s most recent decision, click here.

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