Florida poised to apply Daubert to expert witness testimony

BVWireIssue #129-2
June 12, 2013

On April 26, 2013, the Florida legislature passed a bill that requires courts to evaluate expert testimony under the Daubert standard. It seeks to align Florida with the majority of state courts that already have adopted Daubert wholesale or in part and the federal courts. Most importantly, the new test will replace the state’s controversial, idiosyncratic Frye standard. Assuming Governor Scott will sign the bill—he has in the past expressed support for Daubert—the law will go into effect on July 1, 2013.

Currently, under the state’s rules of evidence, expert testimony in Florida is admissible if the witness has “scientific, technical, or other specialized knowledge” that relates to an issue in the case and assists the jury. Only when an expert’s opinion concerns a “new and novel” scientific technique does a court test its reliability under the Frye standard, which requires that an expert’s methods be “generally accepted” in the relevant scientific community.

An even bigger hole through which testimony has escaped judicial scrutiny has been the state’s “pure opinion exception” (POE). It provides that, if the expert relies only on his or her personal experience or training, the testimony is admissible without being subject to a Frye hearing. Critics long have complained that the current system takes a “let it all in” approach that has relied on the battle of the experts to resolve expert testimony issues. Worse, perhaps, it forces juries to assess matters of science on which there is not yet a consensus among scientists. 

Under Daubert, the court functions as a gatekeeper, admitting only testimony from a witness who qualifies as an expert in the field, whose testimony is helpful to the jury, is relevant, and is “the product of reliable principles and methods.” Cases building on Daubert expressly have rejected the “because I say so,” or “ipse dixit,” approach that Florida has embraced by way of the POE.

Opponents of the new legislation, in turn, have contended that the introduction of a Daubert-like standard will lead to prolonged litigation because of the resulting Daubert challenges and hearings. Also, the greater the scientific complexity of a case, the greater the burden on the state court hearing the matter. 

We welcome comments from readers who have testified in Florida state cases and others.

Find the bill’s history here.

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