W.J. Kennedy Sep. 2, 2016, 9:50am


TALLAHASSEE - The fate of the standard in Florida covering the admissibility of expert witnesses in civil and criminal cases is now in the hands of the Florida Supreme Court.  

On Sept. 1, the seven members of the high court heard arguments both supporting and opposing a standard enacted by the state legislature in 2013, the Daubert standard.  

Supported by the business community, the Daubert standard is considered a more rigid test of determining whether an expert witness should be permitted to testify; it requires relevant opinions grounded in reliable methodology. The former, long-held standard in Florida, the Frye standard, allows testimony based on general acceptance in the particular field in which it belongs. It’s easier under Frye for plaintiffs to get damaging expert testimony before a jury. It’s the plaintiff bar’s preferred standard.  

The Florida Bar’s Board of Governors recommended the high court strike Daubert and revert to Frye.  

John W. Hogan, a member of the Bar’s Code and Rules of Evidence Committee (CREC), told the court that the Florida Legislature was out of line enacting the standard in the first place, a change that was made based on the argument that it would rid the court room of junk science.  

“It’s a procedural matter,” Hogan said. “And it’s important to understand that the Supreme Court makes these rules.” 

Hogan further said that Florida case law has consistently re-affirmed Frye as the standard. 

But Justice Barbara J. Pariente said that she “is not seeing” that the issue is entirely procedural; it’s substantive as well.  

The legislature has authority over substantive changes in the law.  

“I see both in this,” she said.  

Speaking later in the hearing, sponsor of the bill, Rep. Larry Metz (R-Yalaha), said that he sees both aspects in the law as well, and that it’s important not to get caught up in who has jurisdiction over deciding the standard, but rather what constitutes the better standard. 

“Rules of evidence have always been a collaborative effort with the legislature and courts,” Metz said.  

Opponents also argued that the Daubert standard is time consuming, costly, and that it’s already clogging Florida’s courts. 

“It’s being used as a tactical weapon,” said plaintiff’s attorney Howard C. Coker of Jacksonville. “Simple causations are now being challenged.” 

Metz argued that Daubert has been the standard in federal courts for 23 years, and “we don’t have a parade of horribles coming from there.” 

Pariente suggested that if Daubert is being misused then it’s better to target the misuses than strike the entire standard. 

Another point argued at the hearing is that different outcomes have emerged between criminal and civil litigation.  

Some said that Daubert has been more constructive in civil litigation, than in criminal trials because defendants lose a majority of Daubert motions.  

Still, John E. Morrison, speaking for the Florida Public Defender Association, said it was imperative that the Daubert apply across the board.  

“A man was executed in Texas (2004) after being convicted of an arson fire that killed his three children,” Morrison said. “They convicted him based on pure opinion. Later evidence brought in the case showed he was wrongly convicted.”  

Initially, the Florida Bar appeared as though it would recommend that the Court adopt Daubert. In two straw votes in 2013, the CREC overwhelmingly favored Daubert. But halfway through 2014, the terms of one-third of the members of CREC expired, and they were replaced. Daubert then lost out in a subsequent vote. The Board of Governors agreed with CREC’s final recommendation.  

The Supreme Court has received hundreds of comments regarding Daubert.  

Among them were from William W. Large, president of the Florida Justice Reform Institute. 

“The Committee (CREC) serves an important purpose but it is neither a democratic institution nor a constitutionally established, coordinate branch of government.” Large stated. “Its members are not elected and have no constituency. Where the committee’s recommendation conflicts with the considered judgment of the legislative branch, the committee’s recommendation is entitled to no precedence over the legislative will.” 

The court gave no indication when it might rule. 

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