In April of 2013, the Florida Legislature passed a bill to amend the statutory standard for admission of expert testimony at trial, adding Florida to a long list of states rejecting the longstanding Frye standard and adopting the current federal standard, known as Daubert, in its place. However, in the five years since it became effective, challenges to the constitutionality of the amendment has generated much debate and confusion regarding how an expert’s opinion is evaluated to determine whether it may be offered at trial. A trial judge in Florida has broad discretion to determine the subject matter of an expert’s testimony; however, the court is bound to and must nonetheless follow applicable law. Earlier this week the Florida Supreme Court released its opinion in DeLisle v. Crane Co., No. SC16-2182 (Fla. Oct. 15, 2018), weighing in on what the law actually is – and according to the court, the winner is Frye.
Prior to the 2013 amendment, section 90.702, Florida Statutes, stated:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
As amended in 2013, section 90.702 provides:
Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
1. The testimony is based upon sufficient facts or data;
2. The testimony is the product of reliable principles and methods; and
3. The witness has applied the principles and methods reliably to the facts of the case.
Notably, the earlier version of the statute does not mention, nor contain, the Frye standard. Rather, the Frye standard was established in a 1923 case before the United States Court of Appeals of the District of Columbia, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under the Frye standard, when an expert forms an opinion based upon new or novel scientific techniques, the party offering the opinion must establish that the underlying scientific principles and methodology are generally accepted in the scientific community for the opinion to be admissible at trial.
Following this decision, many state courts as well as other federal courts adopted the Frye test. The Florida Supreme Court adopted Frye in the mid-1980s, in two decisions regarding the use of hypnosis to aid witness’ recollections in connection with the Florida Ted Bundy trials. Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984), abrogated on other grounds by Fenelon v. State, 594 So. 2d 292 (Fla. 1992).
Seventy years after the D.C. circuit articulated the Frye test, the United States Supreme Court adopted a different standard, referred to as the Daubert test, under which the “general acceptance” analysis was one of several factors used to determine the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Under Daubert, an expert may offer an opinion if it is based upon sufficient facts or data and is the product of reliable principles and methods that were appropriately applied to the specific facts of the case. Several factors may be taken into consideration to analyze whether the principles and methods used by the expert are reliable, including whether they are generally accepted in the relevant scientific community.
There is much debate over whether Frye or Daubert is the more stringent standard, driven largely by Frye’s limited applicability: Frye only applies when an opinion is based upon new or novel scientific techniques. Therefore, one long-standing frustration was the test does not apply to “pure opinion” testimony, where an expert bases his or her opinion on the expert’s personal experience and training rather than a scientific principle or test. In fact, the Florida Legislature noted its intent to prohibit this pure opinion testimony in Florida courts in making the 2013 amendment. Ch. 2013-107, Laws of Fla.
In February of 2017, the Florida Supreme Court released a “rules case” declining to adopt the statutory Daubert amendments as rules of evidence to the extent they were procedural “due to the constitutional concerns raised,” which at that time included undermining the right to a jury trial and denying access to the courts. In re Amendments to the Fla. Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017). It is important, however, to understand the context in which the court issued this decision. A “rules case” arises out of the Florida Supreme Court’s exclusive authority to adopt rules for the practice and procedure in all courts of the state pursuant to Article V, section 2(a), of the Florida Constitution. As explained in the February 2017 decision, “It has been [the c]ourt’s policy to adopt, to the extent they are procedural, provisions of the Florida Evidence Code as they are enacted and amended by the Legislature. However, on occasion the [c]ourt has declined to adopt legislative changes to the Evidence Code because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.” Id. at 1236. Accordingly, while the court declined to adopt the amendments as part of the Florida Evidence Code, it did not determine whether section 90.702 was procedural or substantive, nor did it invalidate the statute in the rules case. Instead, the court noted it would wait for a proper case or controversy to decide such matters. Accordingly, although debated, it was generally recognized that unless or until the Florida Supreme Court ruled on the Daubert amendments on substantive grounds, Daubert remained the law in Florida and governed the admissibility of expert testimony at trial.
It is likely the Florida Supreme Court already had its “proper case or controversy” in mind when it issued the 2017 rules case: a November 2016 opinion involving a constitutional challenge to section 90.702, issued after rehearing from the Fourth District in Crane Co. v. DeLisle, 206 So. 3d 94 (Fla. 4th DCA 2016), review granted, SC16-2182, 2017 WL 3484484 (Fla. July 11, 2017). On appeal in Crane, the appellee argued the Daubert amendments were an impermissible legislative enactment of procedural law, and, therefore, unconstitutional – an argument that was intriguingly and ironically dismissed by the appellate court, because according to it, “statutes are presumed to be constitutional and are to be given effect until declared otherwise.” Crane Co., 206 So. 3d at 100. Dismissing the argument on this basis is of course fraught with irony; the Florida Supreme Court noted it needed a case or controversy to rule on the amendment’s constitutionality, while the lower courts were dismissing constitutional arguments in favor of instead simply presuming the amendment was constitutional. As the petitioner in Crane pointed out to the Florida Supreme Court, “Allowing a presumption of statutory validity has the effect of making separation of powers subject to temporary legislative abuse incapable of being immediately remedied.” Petitioner’s Initial Brief, Crane Co. v. DeLisle, SC16-2182 (Fla. July 31, 2017).
The Florida Supreme Court granted review of Crane on the basis that the Fourth Circuit Court of Appeal’s decision conflicted with the Florida Supreme Court’s decision in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), the case widely recognized as reaffirming Florida’s adherence to Frye despite the U.S. Supreme Court’s decision to adopt Daubert. The underlying issues in Crane arise out of a mesothelioma personal injury action Mr. Richard DeLisle filed against sixteen defendants, claiming each caused him to be exposed to asbestos. The case proceeded to trial against only three of the defendants, and as causation was hotly disputed, at trial the parties challenged admission of each expert opinion under the newly adopted Daubert standard. The trial court ultimately admitted each opinion and the jury awarded DeLisle $8 million in damages. On appeal, the Fourth District reviewed the admission of expert testimony under the Daubert standard, found the trial court failed to properly exercise its gatekeeping function by allowing the opinions in evidence, reversed for a new trial as to one defendant, and reversed and remanded for entry of a directed verdict as to another defendant. DeLisle sought review of this decision by the Florida Supreme Court.
In its opinion, the Florida Supreme Court framed the issue before it as “we are asked to determine whether chapter 2013-107, section 1, Laws of Florida, which revised section 90.702, Florida Statutes (2015), and which we previously declined to adopt, to the extent it was procedural, infringes on this Court’s rulemaking authority.” The rulemaking authority the court refers to is its exclusive authority under article V, section 2(a) to “adopt rules for the practice and procedure in all courts.” Art. V, § 2(a), Fla. Const. One check and balance between the courts and the Legislature does allow the Legislature to repeal rules of the court by “general law enacted by two-thirds vote of the membership of each house of the legislature.” Id. However, the vote on the Daubert amendment did not meet this two-thirds requirement; while the bill passed the Senate with a 75% vote, it passed the House with only a 58.3% vote.
After officially declaring in the opinion that section 90.702, as amended in 2013, is procedural, not substantive, the court noted to determine the amendment’s constitutionality, it must look to whether the amended statute conflicts with a rule of the court. Premised on the understanding that a procedural rule may be pronounced in caselaw, the court noted that the rule announced in Marsh was a procedural rule of the court, which the Legislature was therefore unable to repeal by simple majority. Finding that the Frye and Daubert standards are competing procedural rules, the court held that the Legislature’s Daubert amendment backed only by a simple majority vote was an unconstitutional infringement on the court’s rulemaking authority and clarified that this decision reaffirms, “Frye, not Daubert, is the appropriate test in Florida courts.”
The opinion, however, is likely not the last word on the Florida Frye versus Daubert debate. For more than the past five years, practitioners and courts have been litigating with the understanding that Daubert was the standard to determine whether an expert’s testimony would be admissible at trial, generating more than five years of trial verdicts, appellate decisions, and pending discovery based upon a standard for evaluating expert testimony that the Florida Supreme Court declared was unconstitutionally adopted. The court’s concerns, noted both in the rules case and the Crane case, regarding whether the Daubert amendment may undermine the right to a jury trial or deny access to the courts, have the potential for generating the next chapter of the debate and are now likely resonating with many litigants throughout the state who believe their case may have resolved differently under the Frye standard.