Bracing for Impact: What Standard for Expert Testimony Will the Florida Supreme Court Choose?

Daubert or Frye?

On the morning of September 1, 2016, as Hurricane Hermine lumbered toward the Florida panhandle, the State’s highest court heard oral argument on a proposal that would change the course on admissibility of expert testimony in Florida. In 2013, the Florida legislature adopted for Florida state courts the standard for admissibility of expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., the seminal 1993 United States Supreme Court case on this topic. By 2013, Daubert was being followed by all federal courts and the majority of state courts around the country. Under the Daubert standard, the trial judge serves as a gatekeeper for expert testimony which is admissible only if: (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. The Daubert standard replaced the Frye standard, named for the 1923 United Supreme Court case of the same name, under which the proponent of expert testimony is required to establish “general acceptance” of the underlying scientific principles and methodology. But Frye was only applied where an expert attempted to offer an opinion based on new or novel scientific techniques, and the Frye standard was subject to an exception such that if the proffered opinion relied solely on the expert’s personal experience and training -- his or her “pure opinion” -- the testimony was deemed admissible without further scrutiny.

The adoption of Daubert in Florida was met with enthusiasm by Florida practitioners who believe the stricter standard enhances reliability of expert testimony. The countervailing view is that application of the Daubert standard has overwhelmed our court system because of the required ‘preliminary’ hearing and the depth of analysis required to determine some of the more complex Daubert challenges. Some Daubert opponents argue that the standard may restrict access to courts for those individuals who are most aggrieved – i.e., those who lack resources to retain sophisticated expert witnesses or pay attorneys’ fees associated with lengthy Daubert proceedings.

To address concerns raised by the adoption of Daubert, the Code and Rules of Evidence Committee of the Florida Bar (“CREC”) formed a working group to analyze the legislation which resulted in the adoption of the Daubert standard. CREC recommended that the Florida Supreme Court reject the adoption of the Legislature’s 2013 amendments to the Florida Evidence Code and return to the Frye standard, to the extent the 2013 amendments are procedural in nature and therefore within the province of the Supreme Court, not the legislature. This recommendation was the subject of the proceedings in the Florida Supreme Court on September 1, and drew the attention of litigators across the State. Indeed, almost 200 public comments on CREC’s recommendation were filed by attorneys and private companies, all weighing in on the attributes of their preferred standard.

At oral argument, the Court heard ‘war stories’ of successive Daubert motions filed as tactical maneuvers, and of Daubert hearings being held on weekends because overburdened trial courts had no additional time during the work week to schedule these lengthy hearings. Proponents of the Daubert standard argued that it has not been misused since its adoption in 2013, and has instead brought a greater reliability to expert evidence juries are asked to review. The Court focused heavily on whether the standard for the admissibility of expert testimony is a substantive or procedural matter, probing whether the question is properly decided by the legislature or the judiciary. Daubert proponents argued that it is substantive and properly determined by the legislature, while Frye supporters maintained it is a procedural issue within the purview of the Supreme Court.

While it remains unclear just how the Supreme Court will ultimately come down on the Daubert v. Frye question, one thing is certain – Florida litigators are monitoring the issue closely and bracing for the impact the Supreme Court’s decision may have on their clients and their practices.

  • Jennifer P. Sommerville
    Of Counsel

    Jennifer P. Sommerville is an attorney in the Orlando office of Shutts & Bowen LLP, where she is a member of the Construction Litigation Practice Group.  She has over 20 years of experience representing clients in complex commercial ...

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