In 2013, the Florida legislature amended the Florida code, section 90.702, dealing with expert testimony, to incorporate the Daubert standard in the state’s rules of evidence. In a recent ruling, the state’s Supreme Court found the legislature had overstepped its authority, declared the amendment unconstitutional, and reinstated the Frye standard.
The validity of the Daubert standard arose in the context of a personal injury case in which the plaintiff claimed the defendants’ products exposed him to asbestos that caused his illness. Following a Daubert hearing, the trial court admitted the plaintiff’s experts testifying regarding causation. A jury awarded the plaintiff $8 million in damages. The appeals court struck the award, finding the trial court did not properly exercise its gatekeeping role when it allowed the expert testimony into evidence.
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.
The high court explained that the state constitution prohibited one branch of government from infringing on the authority of the other branches. The court explained that generally the Florida legislature has authority to make substantive law, but the Supreme Court has the power to make procedural law. Section 90.702 as amended in 2013 was not substantive in that it did not create or regulate a right, the state high court explained. Importantly, the high court explained, the recent legislative amendment also conflicted with the existing approach for determining the admissibility of expert testimony.
“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,” the high court said. It explained that Frye 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.”
“With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts,” the court’s majority said, sending the instant case back to the appeals court for reinstatement of the final judgment.
In a concurring opinion, one judge noted that Daubert limited access to courts. Where Frye only applied to testimony based on a new or novel scientific theory, Daubert applied to all expert testimony. More litigants risked having their expert testimony excluded under Daubert, the concurring judge said. Also, Daubert saddled trial judges, “who typically do not possess the requisite training or experience in the expert’s field,” with the responsibility of assessing admissibility, the concurrent opinion observed.
Three judges dissented on technical grounds.
The case is DeLisle v. Crane Co., 2018 Fla. LEXIS 1883 (Oct. 15, 2018).