(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 of federal case law following Daubert, as well as a majority of states that also follow Daubert.

Moreover, in DeLisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018), decided in October, 2018, the Florida Supreme Court re-affirmed its decision to reject the Daubert standard in an opinion authored by Justice Quince and joined by Justices Pariente, Lewis, and Labarga to form the majority. However, less than eight months later, Florida’s new Governor Ron DeSantis (sworn in January 8, 2019)replaced Justices Quince, Pariente, and Lewis by the appointment of Justices Lagoa, Luck, and Muñiz.

Now, with two of these three recent appointments swinging the majority, the Florida Supreme Court has reversed course and issued a new rulemaking opinion on May 23, 2019, in which it declared that its prior rationale for declining to adopt Daubert was unfounded—that the “grave constitutional concerns” turned out to be more fervor than fact.  The new opinion fully adopted the Legislature’s 2013 Amendments to the Florida Evidence Code’s Section 90.702 (codifying the Daubert factors) and 90.704 (precluding the disclosure of facts or data otherwise inadmissible by and through an expert’s opinion or inference unless the court determines that their probative value to the jury’s ability to evaluate an expert’s opinion substantially outweighs their prejudicial effect).

The Opinion is quite short on substance and detail.  A large portion of the opinion is just block-quoted language from Justice Polston’s previous concurrence in part/dissent in part from the 2017 rule-making opinion that declined to adopt Daubert.  The Court’s rationale for adopting Daubert now may be summarized as follows:

     1.     The Federal Courts’ and 36 other states’ experience show that the Daubert standard does not actually limit the constitutional right of access to courts on a large enough scale to be considered, by any objective measure, a “grave constitutional concern.”

     2.     The Daubert standard will “remedy the deficiencies” of the Frye standard by requiring the trial judge to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”  This is more all-encompassing than Frye’s limited applicability only to “new or novel scientific techniques” before the courts.

     3.     Daubert’s adoption will create “consistency between state and federal courts with respect to the admissibility of expert testimony,” and will “promote fairness and predictability in the legal system” with a byproduct of lessened “forum shopping.”

     4.     It is a long-standing tradition that the Supreme Court of Florida adopts the Legislature’s amendments to the Florida Evidence Code to the extent they are procedural, with very few exceptions.

What does this mean for litigants?

     1.     The Daubert standard seriously limits the ability of experts to offer “pure opinion testimony,” which is evidence that the expert deduces from his or her “experience” in the field of inquiry.  Under Frye, challenges to the qualifications of the expert to offer such testimony if it did not cross into the realm of “new or novel” techniques or methodologies was limited to cross-examination before the jury.  Under Daubert, on the other hand, challenges to the expert’s qualifications and methods must first pass through the gate-keeping function of the judge, who assesses the expert’s application of methodologies to the specific facts of the case to determine relevancy and reliability—a more stringent standard. Under Daubert, any evidenced that the court deems irrelevant and unreliable is never heard by the jury.

     2.     A possible increase in litigation costs.  Pre-trial Daubert motions will be an occurrence in almost every case, but litigants have been challenging the qualifications of witnesses since the beginning of time, so the difference may be negligible in the long run. Moreover, lawsuits reliant upon pure opinion testimony of experts will be curtailed.

     3.     More certainty or consistency between state and federal courts.