The Subrogation Strategist

Seven months ago, the Florida Supreme Court declined to adopt Daubert as the standard for admitting expert testimony in Florida state courts. In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida.” On May 23, 2019, however, Florida’s high court did an about-face. In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and declared that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible.

The Daubert standard comes from the case of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), which held that the longstanding Frye test[1] for admitting expert testimony was superseded by Rule 702 of the Federal Rules of Evidence. Daubert instructed that federal judges should act as “gatekeepers” to ensure expert testimony is rooted in scientifically valid principles and that those principles are properly applied to the facts at issue. In determining whether scientific evidence should be admitted, Daubert sets forth several factors to consider: the testability of the theory or technique; the peer review and publication of the theory or technique; the error rate for the technique; the standards controlling the technique’s operation; and the general acceptance of the theory or technique.[2] The Daubert standard is generally considered a more onerous test than Frye, precluding expert testimony that might otherwise go to the jury under Frye.[3] Whereas Frye is a single factor test that applies only to new or novel science, Daubert is a multifactor test that applies to all expert testimony.

Since Daubert, a growing number of states have moved away from the Frye test in favor of the Daubert standard; it is now followed by a majority of jurisdictions in the country. In 2013, the Florida State legislature attempted to move Florida in this direction by amending the Florida Evidence Code to codify the Daubert standard. But because the Florida Supreme Court is vested with the power to make procedural rules and it was unclear whether the Daubert standard was a procedural or substantive rule, it was uncertain whether the 2013 Daubert amendments were controlling law. Then in 2017, in In Re: Amendment to the Florida Evidence Code, No. SC16-181, the Florida Supreme Court expressly declined adopting the Daubert amendments to the extent they were procedural. This decision signaled that, if faced with the Daubert standard on appeal from a litigated case, the Florida Supreme Court would reaffirm that Frye – not Daubert – controlled the admissibility of expert testimony in Florida state courts.

Such an appeal presented itself this past year in DeLisle. In DeLisle, the defendants appealed the trial court’s admission of expert testimony. The intermediate appellate court reviewed the evidence under Daubert and, in applying the Daubert standard, found that the trial court should have excluded certain expert testimony. The Florida Supreme Court reversed, however, because the Fourth District erred in applying Daubert instead of Frye. Finding that the 2013 Daubert amendments were procedural rules, the court stated it was within the provenance of the judiciary, not the legislature, to accept or reject the Daubert standard. The DeLisle Court rejected the legislature’s attempt to adopt the Daubert standard. In doing so, the DeLisle Court explained why it found Frye superior to Daubert:

Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.

Fast-forward seven months and three newly appointed justices later, and the Florida Supreme Court changed course in In Re: Amendment to the Florida Evidence Code, No. SC19-107. As of May 23, 2019, the Daubert standard now governs the admissibility of expert testimony in Florida. In adopting Daubert, the Florida Supreme Court stated that the “Daubert amendments remedy deficiencies of the Frye standard.” The court further expressed that Daubert will create consistency across Florida’s state and federal courts and “promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

Critics exist on both sides of Daubert. Opponents of Daubert argue that the jury, as the trier of fact, should be the one weighing the quality of the evidence – not the judge. Weak expert testimony should be attacked by cross-examination and the presentation of contrary evidence, they argue, rather than being precluded by a judge acting as a gatekeeper. Proponents of Daubert argue that the standard serves to ensure the reliability of all scientific evidence, not only that which is new or novel. Daubert advocates also contend that courts typically find that the purported challenge goes to the weight of the testimony and not its reliability. One thing is certain, however: Daubert results in an increase in motions in limine. With the new standard controlling the admissibility of scientific evidence, we can anticipate a rise in challenges to expert testimony in Florida state courts.

[1] The Frye test requires that expert testimony based on new or novel science be “sufficiently established to have gained general acceptance in the particular field in which it belongs.” The Frye test originated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

[2] Daubert and its progeny have become embodied in amendments to Rule 702. In its current form, Rule 702 provides:

A witness who is qualified by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

[3] In some circumstances, however, scientific evidence might be barred by Frye but admitted under Daubert. For instance, a judge applying Frye may toss certain expert testimony that is not yet considered generally accepted but that is nonetheless reliable. Under Daubert, by contrast, there is no determinative factor like there is in Frye. While the general acceptance of scientific evidence is a factor for the judge to consider, it is not dispositive.