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May 29, 2019

Prior to 1993, federal and state courts used the standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to determine whether scientific evidence should be admitted at a trial. The Frye standard requires the offeror of the evidence to establish that the expert opinion is based on principles and testing procedures that are generally accepted by the scientific community. The standard only applies to new and novel scientific evidence.

In 1993, the Supreme Court of the United States announced a new standard for the admissibility of evidence in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), following a revision of the Florida Evidence Code. In Daubert, the Court suggested a series of factors that a court could consider when deciding whether to allow scientific evidence. Notably, the trial judge acts as a gatekeeper to determine whether to allow scientific evidence and expert testimony at trial. Unlike FryeDaubert applies to all expert testimony, not just new and novel scientific evidence. Since 1993, most state courts adopted Daubert, but Florida continued to use the Frye standard.

In 2013, the Florida State Legislature amended §§ 90.702 and 90.704 of the Florida Evidence Code adopting the Daubert standard. Because the Florida Constitution vests the Florida Supreme Court, not the Legislature, with the authority to make changes to the evidence code, the 2013 amendments caused confusion to reign in the Florida legal community over which standard to apply. As a result, most attorneys argued both the Daubert and Frye standards in their motions in limine to exclude expert testimony, and general trial courts analyzed both standards when determining whether to allow the testimony. 

The Florida Supreme Court put an end to this confusion in 2017 when it declined to adopt the Daubert standard explaining that the Florida Bar’s Code and Rules of Evidence Committee noted “grave constitutional concerns” in adopting this standard. Specifically, a closely split Committee expressed concerns that the Daubert standard would undermine the right to a jury trial and deny access to the courts. The Court held that the 2013 amendments were procedural in nature and infringed on the Court’s rulemaking authority. The Court expressly declined to rule on the constitutionality of the amendments. Plaintiff’s attorneys celebrated the decision as they believed that Daubert created an imbalance of power and equity between the average plaintiff and powerful corporations and insurance companies. 

The Florida legal community thought this was the final word on the Frye/Daubert standard. They were wrong. On May 23, 2019, the Florida Supreme Court in In Re: Amendment to the Florida Evidence Code, No. SC19-107 receded from its prior decision and adopted the 2013 amendments to the Florida Evidence Code, thereby adopting Daubert. The Court held that the “grave constitutional concerns” expressed by the Florida Bar’s Code and Rules of Evidence Committee were unfounded. Instead, the Court explained that the Daubert standard would remedy deficiencies found in the Frye standard. The Court explained, “…the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.” The Court declined to address the constitutionality of the amendments because this was a rule-making case. 

One may wonder what changed between February 16, 2017, and May 23, 2019? The most obvious answer is the change in the composition of the Florida Supreme Court. Three of the Florida Supreme Court Justices on the Court on February 16, 2017, Pariente, Lewis and Quince, retired before the Court handed down its decision on May 23, 2019. They represented the liberal wing of the Florida Supreme Court. After reaching their mandatory retirement age of 70, Florida’s Republican Governor replaced these justices with three conservative justices, even though one of these justices, Justice Luck, dissented from the Court’s May 23, 2019, opinion. Who says elections do not have consequences.

Critics of Daubert argue that the judge’s gatekeeping role blocks access to the courts and that large corporate defendants use the Daubert standard as a sword against average plaintiffs to prevent juries from hearing expert testimony to support their claims. Other critics of Daubert argue that courts are now overwhelmed with Daubert hearings that involve technical and scientific issues which may be too complicated for the average judge and that corporate defendants use Daubert hearings to exhaust a plaintiff’s limited resources. Only time will tell whether these criticisms are unfounded.

On the other hand, Federal courts and a large majority of courts in other states used Daubert since 1993 with few issues. Daubert will allow attorneys in Florida to challenge all expert testimony, not just new and novel theories. Also, proponents of Daubert argue that evidentiary decisions in federal court are generally more consistent than the rulings by trial judges using Frye in different circuits across Florida. A judge in a circuit court in Pensacola may find that scientific evidence violates the Frye standard while a judge in Miami-Dade may disagree. Consistency of rulings helps to make good laws and generally makes the legal system more successful. Finally, and most importantly, the Daubert standard may make a plaintiff’s attorney think twice prior to bringing a frivolous case based on “junk science.”

So is 2019 ruling the final word on this dispute? Unlikely. Both February 16, 2017, and May 23, 2019, decisions declined to address whether the amendments to the Florida Evidence Code adopting Daubert were constitutional. Plaintiffs’ attorneys are busily finding a case to use to challenge the constitutionality of these amendments if a case has not already been found. However, based on the current make-up of the Florida Supreme Court, it is unlikely that a challenge would be successful.

For any further questions, please contact J. Blake Hunter.