Florida’s Expert Witness Standard:  Daubert Reigns Supreme (Again)

(This post assumes a general understanding of the Frye and Daubert standards.  For a detailed explainer, click here.) Daubert is again the standard for admission of expert witness testimony and evidence in Florida state courts, displacing the Frye standard.  Daubert limits the admission of so-called “pure opinion testimony” from expert witnesses. Since 2013, Florida’s standard for determining the admissibility of expert witness testimony and evidence has fluctuated.  After decades following the more permissive Frye standard, in 2013, the Legislature amended the Florida Evidence Code by adopting the more robust Daubert standard. Daubert and its progeny had controlled expert testimony in the federal courts and at least 36 state courts for over 20 years. But in response to the Legislature’s amendment, the Supreme Court of Florida concluded, in a rule-making opinion, that the Legislature had infringed upon the Supreme Court’s rulemaking authority by passing the amendment. The Florida Supreme Court explained that the amendment was procedural in nature, and therefore could only be changed by the court. Additionally, after considering the extensive briefings, oral arguments, public commentary, a Report of the Florida Bar’s Code and Rules of Evidence Committee, and extra jurisdictional case law study, the Florida Supreme Court reasoned that that Daubert’s broad applicability to all expert testimony (as opposed to Frye’s limitation to “new and novel” methods) posed “grave constitutional concerns” about access to courts and the expense of litigation on the parties and the judicial system.  The Court’s reasoning seemed at odds with greater than twenty years’ worth […]

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