May 28, 2019
On May 23, 2019, the Florida Supreme Court reversed it stance regarding a critical rule on expert testimony, adopting the Daubert standard, effective immediately, and reversing a 2017 decision implementing Frye.
In a 5-2 decision, the Court amended 90.702 (testimony by experts) and 90.704 (basis of opinion testimony by experts), Florida Statues, of the Florida Evidence Code to replace the Frye standard for admitting certain expert testimony with the Daubert standard, the standard for expert testimony found in Federal Rule of Evidence 702. In re Amendments to the Florida Evidence Code, No. SC19-107, May 23, 2019. Before yesterday’s decision, Florida was one of only 14 states following Frye while all the other 36 state and federal courts operate under Daubert.
Yesterday’s decision comes only a few years after the Florida Supreme Court in 2017 declined to adopt the legislature’s 2013 revisions to the Florida Evidence Code codifying Daubert. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. Opponents of the Daubert amendments expressed concerns that the amendments undermined the right to a jury trial and denied access to the courts.
Subsequently, in DeLisle v. Crane Co., the Court ruled that the legislature overstepped its authority in enacting the Daubert amendments, returning Florida to the Frye standard. Delisle v. Crane co., et al, No. SC16-2182, October 15, 2018. In DeLisle, the Fourth DCA excluded expert testimony under the Daubert standard and reversed a trial court’s verdict and ruling on directed verdict. The Florida Supreme Court accepted the case for discretionary-review to determine the constitutionality of the Daubert amendment. In a narrow 4-3 decision, the court rejected Daubert and adopted Frye ruling that the adoption of Daubert or Frye as the law in Florida was a matter of procedure solely within the authority of the Court, and that the Daubert Amendment conflicted with the Frye rule previously adopted by the Court.
The Frye standard is a more relaxed and lenient test while Daubert is a more stringent standard to meet. Frye only requires that the proponent of the evidence establish the general acceptance of the underlying scientific principle and the testing procedures. Notably, Frye only applies to new or novel scientific evidence. The Frye inquiry was meant to be flexible and focused on scientific principles and methodology, not conclusions. However, in its application, it has made the courts and decisions susceptible to “junk science”. Under the Frye standard, experts can testify based on their opinion, bringing evidence that could be somewhat new or novel, and, therefore, not necessarily repeatable or peer-reviewed.
In 1993, following a revision to the Federal Evidence Code by Congress, the Supreme Court of the United States annunciated the new standard in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The Daubert opinion emphasized that the Federal Rules of Evidence governed admissibility and suggested a series of factors a court could consider, but did not establish a test per se. Under Daubert, the admissibility of expert evidence rests squarely within the discretion of the trial court judge. In contrast to Frye, Daubert applies to all expert witness testimony and requires the Court to look not only to the relevance of the evidence being offered but also its reliability. Daubert held that the Federal Rules of Evidence superseded Frye.
The Florida Supreme Court noted that adoption of the Daubert amendments will create consistence 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. In it’s decision, however, the Court did not revisit the ruling in DeLisle and instead adopted the Daubert Amendment as a procedural rule of evidence. The decision also does not address the constitutional or other substantive concerns that have been raised about the amendments and that those issues must be left for a proper case or controversy.
For further information, contact Hanson Horn in our Fort Lauderdale office at 954-848-3681.