Is it safe to use the Daubert standard of the new section 90.702, Florida Statutes, to exclude your opponent’s expert testimony? Do you have a choice?
Earlier this year, the Florida supreme court raised a red flag on the new Florida Statute section 90.702 in In re Amendments to the Florida Evidence Code, SC16-181, 2017 WL 633770 (Fla. Feb. 16, 2017). In that opinion, the supreme court only noted it had “grave concerns” those (unidentified) elements of the new section 90.702 Daubert statute are constitutionally suspect – it gave no substantive ruling on the matter.
The supreme court hinted that its concern was that the new Daubert procedure may impinge on constitutional rights of access to the courts and the right to a jury trial. This is notable because Daubert has been the standard in federal courts and dozens of state courts for decades without such problems. The supreme court stated these concerns “must be left for a proper case or controversy.”
The supreme court was clear that it “does not address the constitutionality of a statue or proposed rule within the context of the case of a procedural rule,” like this one. So, since enactment, the Daubert amendment to 90.702 has been the (questioned) law of the land. But that may be about to change.
On July 11, 2017, the supreme court apparently found its “proper case or controversy.” The case is Richard Delisle v. Crane Co., et al., case SC16-2182. The initial brief challenging the new law was filed on July 31st. The Florida Justice Association has sought leave to file an amicus in support. The briefing process will take the case into the Fall, with oral argument to be set perhaps by the end of this year or early next year.
What is the upshot on orders “in the pipeline” in other cases that exclude expert testimony on the basis of the new 90.702 Daubert standard? If the supreme court were to alter the enforceability of the new 90.702, that exclusionary order based on the Daubert standard, and perhaps a verdict rendered after a trial, could be at risk. Stay tuned, as we will be closely following this issue!