TALLAHASSEE, FLORIDA – The Florida Supreme Court will rule on changes to the admissibility standard for expert testimony, which has been contested in past civil litigation cases.

The Florida Legislature amended the Florida rules of evidence in 2013, which makes it more of a challenge to admit expert testimony into evidence in civil litigation. Up until 2013 when the amendment took effect, Florida courts abided by the Frye standard in deciding whether expert testimony could be admitted in a trial. The Frye standard is widely accepted in U.S. courts and stems from a 1923 District of Columbia decision.

The Frye standard states that if specialized knowledge, technical or scientific information will be of value in understanding evidence, determining a fact or if a witness qualified to be an expert based upon his or her training, education, skills, experience of knowledge, then that expert testimony could be used.

However, most courts loosely interpreted the Frye standard and admitted expert testimony as long as the expert’s qualifications and training were applicable to the relevant field and the expert’s testimonial content was based upon facts and data that’s commonplace in that field.

But in 1993, the United States Supreme Court adopted a new and stricter standard in the case Daubert v. Merrell Dow Pharmaceuticals. In this case, the court ruled that the federal rules of evidence did not abide by the Frye standard, but instead required a tougher test to determine whether the expert testimony was reliable enough to be admitted into evidence. Now referred to as the Daubert standard, several state legislatures adopted variants of this standard and modified their own state rules of evidence.

The Florida Supreme Court has repeatedly shot down others’ attempts to convince the court to adopt the Daubert standard. In 2013, those proponents persuaded the legislature to adopt a new statute that codified the Daubert standard.

The governing rule for expert testimony in Florida now states:

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.

Essentially, this amended Daubert version requires a presiding judge be more of an information keeper for expert testimony. William Large with the Florida Justice Reform Institute said a Florida Bar committee declined 16-14 to adopt the Daubert standard. The board of governors, which heard oral arguments Sept. 1, received an estimated 200 comments, Large said.

“People have been asking for both adoption and rejection of this standard,” Large said.

Large submitted comments on behalf of the Florida Justice Reform Institute, which is a nonprofit organization dedicated to “fairness, equality, predictability and personal responsibility in civil justice.”

Large said the group has filed amicus curiae briefs in many cases and supported civil justice reform measures, including the Daubert standard.

“The essential requirement of the Daubert standard can be summarized in one word: reliability. To be admissible, expert opinion must be reliable. When civil or criminal liability is at stake, the courts of Florida should adhere to the common-sense premise that unreliable expert evidence will not be permitted to mislead the finder of fact,” Large said.

Large noted that the Florida Legislature enacted Daubert to ensure that unreliable evidence did not mislead judicial decisions that affect basic substantive rights.

“The Daubert statute establishes a precaution designed to protect the substantive rights of litigants … the Daubert statute charges trial courts with responsibility to weigh specified criteria and, if appropriate, to exclude unreliable expert evidence … corrects existing law, redresses an existing grievance and introduces regulations conducive to the public, as it affords assurances of basic reliability that Frye failed to provide,” Large said.

On Oct. 16, the Florida Bar's board of governors met and discussed this issue, tabling a vote until their Dec. 2 meeting.

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