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Thursday, October 17, 2019

Florida attorneys continue debate over adoption of the Daubert Standard for expert witnesses

By Vimbai Chikomo | Mar 29, 2016

TALLAHASSEE – The Daubert Standard may have been passed into Florida law just less than three years ago, but the decision to replace the Frye Standard with it remains highly contested among Florida attorneys, and the Florida Supreme Court will have the final say.

Implemented more than 20 years ago into the federal court system, the Daubert Standard governs the admissibility of expert witnesses' testimony during federal legal proceedings by requiring experts to provide relevant opinions based on science and fact.

“The Florida Legislature in 2013 adopted the federal standard, which is sometimes referred to as the Daubert Standard,” William Large, president of the Florida Justice Reform Institute, told the Florida Record. “It has a more scientific rigor to it in terms of the admission of expert testimony. The old standard in Florida was the Frye Standard... . The legislature felt that standard did not comport with scientific and technical principals of expert testimony. That is why they changed the standard.”

The Frye Standard originated from Frye v. United States, a 1923 case determining the admissibility of a polygraph test as evidence in a murder trial. The court opined that expert testimony should be based on scientific methods adequately established and generally accepted as reliable in a given scientific community.

Many states have viewed the Frye Standard as subjective and have since replaced the standard with the Daubert Standard. In Florida, the Daubert Standard took effect on July 1, 2013 after Gov. Rick Scott signed House Bill 7015 into law.

By adopting the Daubert Standart, Florida courts conformed to Federal Rule of Evidence 702, which requires an expert’s testimony during trial to be based on sufficient facts or data, a product of reliable principles and methods, and based on the expert’s reliable application of the principles and methods.

The new standard subjects experts’ testimonies to more rigorous vetting and affords attorneys the opportunity to have some testimony excluded. Some attorneys have welcomed the Daubert Standard with open arms as it has paved the way for more credible testimony.

“For example, ... let’s say that someone opines that something is a carcinogen, a drug is a carcinogen, a cell phone is a carcinogen – something that causes cancer," Large said. "In federal court under the Daubert Standard, the expert would have to testify that his technique or theory’s been tested, that his technique or theory has been subject to peer review, what the known rate of error was for his technique or theory, and was the technique or theory generally accepted within the relevant scientific community. So that is a strong, robust hurdle before someone is allowed to testify to a scientific or technical principle.”

Under the old standard, Florida courts gave some leeway on admissible testimony called “the pure opinion exception,” which allowed testimony if the expert’s opinion relied only on his or her personal experience and training, and no reliability determination was required.

Given Florida’s reputation as one of the worst lawsuit climates in the country -- the 2015 Lawsuit Climate Survey conducted by the Harris Poll and released by the U.S. Chamber Institute for Legal Reform ranked Florida 44th out of 50 – many believe a stricter rule governing the admission of expert testimony is a step in the right direction.

“The legislature has heard from consumers -- the business community," Large said. "They’ve obviously seen a copy of this report that ranks Florida No. 44... . The legislature has attempted to fix a lot of these issues."

Generally, attorneys in Florida are split on which standard the state should adopt and the debate has continued well after the Daubert Standard became law in the sunshine state.

“Members of the Plaintiff’s Bar have vociferously objected to (the Daubert Standard); and the issue went to a committee at the Florida Bar, and the Florida Bar rejected the standard,” Large said. “And that issue is now in front of the Florida Supreme Court with comments due on April 1. So that is an issue that is being looked at.”

Last May, Code and Rules of Evidence Committee member Wayne Hogan wrote a report addressed to committee Chair Timothy Moore against the adoption of the Daubert Standard, arguing that the right to determine the admissibility of expert opinion belongs to Florida’s court system, not its legislature. Thus the enactment of the new standard undermines the “constitutional authority of the Court with respect to rules of procedure.”

“As the statute is procedural, the Legislature’s attempt to abolish the Frye standard, a settled procedure adopted by the Court three decades ago and consistently adhered to, and the legislative decision to impose on courts the complications and complexities of the Daubert evidentiary standard, must be tested with respect to the Supreme Court’s exclusive constitutional authority over practice and procedure in the court system,” the committee wrote.

The committee rejected the standard by a 16-14 vote, and the Board of Governor’s adopted the committee’s recommendation by a vote of 33-9, Large said.

“This issue is now going to the Florida Supreme Court and comments are now available," Large said. "Anyone can make comment by April 1 on the merits of the Daubert standard."

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