By Debra P. Klauber, Esq. 

It’s Daubert. It’s official. For now, anyway.

Regardless of the type of case, in twenty-first century litigation, cases often come down to a battle of the experts. Parties pay tens, if not hundreds, of thousands of dollars to those experts who then try to convince juries how to make the “right” decision. The Florida Legislature and the Florida Supreme Court have finally come together to adopt the Daubertstandard.

Historically, the Florida courts have followed the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Generally speaking, the Fryestandard requires expert testimony to be well-recognized, such that an expert cannot give an opinion in court unless that opinion has gained general acceptance in the particular field in which it belongs. As explained by the Florida Supreme Court, the Fryestandard allows the scientific community to determine whether certain evidence is reliable enough for the courtroom.

Congress modified the Federal Rules of Evidence and, subsequently, the United States Supreme Court modified the standard for admitting scientific evidence in federal courts in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).The purpose of Daubertwas to allow additional relevant evidence to be considered by the courts, even if it was based on scientific methods or principles that were not yet generally accepted in the given scientific community. It was, by design, a more lenient, flexible standard.

For 25 years after Daubert was decided, the Florida courts continued to apply the Fryestandard. The Florida Supreme Court believed the Frye standard to be a higher standard of reliability — because it allowed the judge to make the decision about whether the opinion was sufficiently reliable, instead of allowing the jury to hear that opinion and decide how much weight it should be given.

In 2013, the Florida Legislature amended the Evidence Code and revised the statutes dealing with expert testimony, in order to follow Daubert. §§ 90.702, 90.704, Fla. Stat. In 2017, the Florida Supreme Court declined to adopt the statutory amendments to the extent that they were procedural, which left some confusion about which standard should be applied. In re Amendments to Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017).

In October of 2018, the Florida Supreme Court concluded that the statute governing testimony by experts (section 90.702) wasprocedural in nature, and that the Florida Legislature had overstepped its bounds and infringed upon the court’s rulemaking authority in its attempt to adopt Daubert. DeLisle v. Crane Co., 258 So. 3d 1221 (Fla. 2018). That court again noted its preference for the Fryestandard, explaining that “Fryerelies 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.” The court also took note of the fact that Daubertproceedings, essentially fights over the admissibility of an expert’s testimony before the start of trial, impose an additional burden not only on the courts, but the litigants themselves, an issue that was raised by a number of briefs that were presented to the court by interested parties.

Now, less than a year later, the new Florida Supreme Court has opted to “recede” from the prior decision not to adopt the Legislature’s Daubertamendments. In re: Amendments to the Florida Evidence Code, SC19-107, 44 Fla. L. Weekly D170 (May 23, 2019). court refused to address the constitutional or substantive concerns that have been raised, claiming that those issues must be left to be raised by a proper case or controversy. The court has now determined that Daubert is the preferred standard because it allows the trial judge to ensure that all scientific evidence is not only relevant, but reliable, and also because it will create consistency between the state and federal courts with respect to the admissibility of expert testimony. Accordingly, the Florida Supreme Court has now formally adopted the amendments to sections 90.702 and 90.704 as procedural rules of evidence.

The lengthy concurring (Lawson) and dissenting (Labarga and Luck) opinions show just how diverse the justices’ positions are with respect to whether this is a procedural or substantive issue, how the court can, or should, go about making this change, and which standard properly protects the parties to litigation. Nevertheless, until there is a case or controversy in which a party is ready to take on the constitutional challenges, such as how this standard might impact the right to a jury trial, the Legislature and the Florida Supreme Court are in agreement that Daubert is to be applied in Florida. The debate over this legal standard has, itself, turned in to a battle of the experts, and the war wages on.