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Meet the New Law. Same as the Old Law. Florida Reverts Back to the Daubert Standard for Expert Evidence

Author: Haldon Greenburg

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

Where We Were

It seems like only yesterday (October 2018 to be exact), that litigation attorneys in Florida were buzzing about the Florida Supreme Court’s 4-3 decision in DeLisle v. Crane Co.,[1] which seemed to resolve the question of how courts in the state would analyze the admissibility of expert testimony and evidence. In the DeLisle opinion the Court took a metaphorical red pen through the 2013 Legislature’s efforts to have the admissibility of expert testimony in Florida be analyzed through the lens of the Daubert standard. Instead, the DeLisle opinion threw Florida back in with a minority of States who followed the Frye standard of expert testimony admissibility.  Case closed.  Issue settled.  Right?

Where We Are

Well, a lot can change in less than a year.  Specifically, the appointment of three new justices to Florida’s highest court since January 2019.  A result of that change is In Re: Amendments to the Florida Evidence Code[2], a 5-2 per curiam opinion in which two of the new justices joined the majority, whereby the Florida Supreme Court reversed its stance on the admissibility analysis of expert testimony in the State.

In the opinion, the Court invoked its exclusive rule making authority pursuant to article V, section 2(a) of the Florida Constitution and decided to recede from the Frye standard, and adopt the Daubert standard for expert testimony as proposed for Florida Rules of Evidence 90.702 and 90.704 by the Legislature in 2013.  The Court did not revisit the ruling in DeLisle and instead adopted the Daubert Amendment as a procedural rule of evidence.

What It Means

Under Daubert, it is the trial court’s job to evaluate the proposed expert evidence to be produced and to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.”[3]  Those in favor of the Daubert standard believe the requirement of a trial judge (as opposed to the scientific community), to ensure the relevance and reliability of scientific testimony or evidence will help keep “junk science”, non-verifiable and scientifically unreliable opinions out of the courtroom.  The practical effects of this opinion will be that Florida will once again have consistency between the State and Federal Courts with respect to the admissibility of expert testimony, it will promote fairness and predictability in the legal system, and it will cut down on potential forum shopping.

The Court’s opinion changes the manner in which parties will seek to admit or prevent expert testimony from being presented to a jury, but it does nothing to change the continued importance of having a knowledgeable attorney who is arguing issues related to expert testimony and the selection of qualified and credentialed experts to support their case.

 

[1] DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018).  For further analysis, see Tyson & Mendes’ November 2018 Insurance Newsletter covering this issue.

[2] In Re: Amendments to the Florida Evidence Code.  44 Fla. L. Weekly S170a, Florida Supreme Court, May 23, 2019.

[3] See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89 (1993).

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