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Florida Supreme Court to Rule on Changes to Admissibility Standard for Expert Testimony. Was it Constitutional?

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Florida Supreme Court to Rule on Legislature’s 2013 Changes to Admissibility Standard for Expert Testimony

In 2013 the Florida Legislature amended the Florida Rules of Evidence, making it more difficult to get expert testimony admitted into evidence in civil litigation. The Florida Supreme Court is expected to rule soon on whether those changes were permissible under the state constitution or should be struck down as unconstitutional.

From Frye to Daubert:

Until the 2013 changes, Florida courts followed the so-called Frye standard in determining whether expert testimony should be admitted at trial. The Frye standard, widely accepted throughout the country and based upon a 1923 District of Columbia decision, was later adopted by Florida courts and codified in

Sections 90.702 and 90.704 of the Florida Evidence Code, which provided that:

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, however, the opinion is admissible only if it can be applied to evidence at trial.

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

The Frye standard was widely interpreted to require courts to admit expert testimony so long as (1) the expert’s qualifications and training were typical for the relevant field and (2) the testimony’s content was based on the kinds of facts and data customarily relied upon in that field.

In 1993, however, the United States Supreme Court adopted a new and significantly stricter standard in Daubert v. Merrell Dow Pharmaceuticals. The Daubert Court held that the relevant Federal Rules of Evidence did not incorporate the Frye standard but instead required a stricter test to determine whether expert testimony was reliable enough to be admissible. After the Daubert decision, some state legislatures adopted variants of the Daubert standard, modifying their own state rules of evidence to track the newly-revised federal ones.

Over the past few decades, big businesses have attempted to convince the Florida Supreme Court to adopt Daubert.  The Florida Supreme Court rebuked each attempt.  Having lost in the Courts, big business took its efforts elsewhere, successfully lobbying the Florida legislature to pass a new statute codifying the Daubert standard in 2013.  As a result, Sections 90.702 and 90.704 of the Florida Evidence Code now provide:

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.

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Admissibility under Frye standard compared to Daubert standard

Rather than trusting Florida juries to come to the right conclusion, as Florida courts have done for decades, Daubert instead mandates that the judge play a more hands-on role as the gatekeeper of expert testimony.  This onerous process invites lengthy motion practice, and often necessitates days’ worth of testimony and hearings, just to determine whether an expert should be permitted to offer his or her opinion at trial.

It’s clear why defendants would prefer this standard, then, as it serves to significantly raise the cost of litigation, and effectively closes the courthouse doors to many injured consumers, who lack the extensive resources at the disposal of wealthy and powerful corporations.

How Daubert affects products liability cases

Expert testimony is crucial to products liability cases because highly technical, scientific evidence is required to establish whether a product is defective and whether the defects were the cause of the plaintiff’s injury and damages. When Daubert is applied to products cases, the parties have more avenues for challenging each other’s experts and those disputes are resolved with pre-trial Daubert hearings and opinions. The parties also have the opportunity to challenge expert testimony at trial based on Daubert.

The resulting additional time and effort required of the parties’ lawyers and experts obviously puts most plaintiffs at a disadvantage compared to the deep-pocketed defendants. And the plaintiff’s bar needs to factor the additional Daubert-related expenses and time delays into its analysis of the economics of each potential case.  Unfortunately, this can (and likely already has) result in meritorious cases being turned away simply because of the resource-consuming nature of the Daubert process.  When this happens, the individual consumer, the consumer’s family, and the rest of society are left to pick up the financial tab for the injuries caused by a dangerous product, rather than the manufacturer which profited from the sale of that product.

The Florida Constitutional Challenge to Daubert

Under Articles II and V of the Florida Constitution, the Florida Supreme Court is vested with sole authority over practice and procedure in the Florida courts. The Florida Bar Association, based on the recommendation of its Code and Rules of Evidence Committee, has petitioned the Court to overturn the 2013 changes to the evidence rules, arguing that the legislature exceeded its constitutional authority by attempting to modify state court procedures. (In September the Court heard oral arguments in the case.)

In addition to its separation of powers theory, the Florida Bar raised substantive objections to the adoption of Daubert:

  • Daubert results in arbitrary and inconsistent results because unqualified judges are required to analyze scientific evidence;
  • Florida courts lack the resources of the Federal courts;
  • Scientific treatises and publications continue to be hearsay under the Florida evidence code; and
  • Daubert undermines the right to trial by jury by reducing the jury’s role in analyzing expert testimony.

Newsome Melton’s Position

As a leading law firm specializing in defective products litigation, Newsome Melton believes the Legislature’s changes to the Florida evidence rules were wrong as a matter of public policy and we strongly support the Florida Bar’s challenge to those changes currently before the Florida Supreme Court.  As such, the attorneys from our firm submitted several comments to the Florida Supreme Court arguing against the implementation of the Daubert standard.

As mentioned above, the Florida Supreme Court heard oral arguments on Daubert in September.  The Court has yet to issue its ruling on the matter, but we expect that it will do so in the next few months.  We will continue to monitor and report on this issue in the meantime.

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