Supreme Court revives Daubert in Florida

Posted in Newsletters - 2019 on May 23, 2019

This morning, the newly reconstituted Florida Supreme Court has done an about-face on the issue of whether the Frye or Daubert standards govern the admissibility of evidence in Florida.  

In 2013, the Florida legislature adopted the Daubert standard of admissibility, which is narrower than the Frye standard, which only excluded new or novel scientific techniques lacking general acceptance.  Under the amended statute 90.702: 

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. 

Florida Statute 90.704 was amended to read: 

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. 

The Court opined that the Daubert statutory amendments (bolded above) remedied deficiencies in the Frye standard of admissibility by reposing in the trial court the duty to ensure that all scientific testimony or evidence admitted is not only legally relevant but reliable.  In addition, the Court noted, the Daubert standard is consistent with the standard adopted by the majority of state and federal courts, which, in turn, will lessen the incidence of forum shopping. 

Florida Statutes 90.702 and 90.704 were amended in 2013, but in 2017, the Florida Supreme Court declined to adopt procedural rules of evidence consistent with those amendments, citing “constitutional concerns” raised by those who opposed the amendments and further held that those concerns would best be addressed in the context of an appropriate case.  Consistent with those misgivings, in DeLisle v. Crane Co., 258 So. 3d 1221 (Fla. 2018) the Supreme Court found the procedural component in Florida Statute 90.702 unconstitutional as impinging on the Court’s sole authority to enact procedural rules.  The DeLisle panel did not address the amendments to Florida Statute 90.704, and therefore, that section had not been determined to be unconstitutional.  Today, the “new” Court held “[w]e now recede from the Court’s prior decision not to adopt the Legislature’s Daubert amendments to the Evidence Code and to retain the Frye standard.” (emphasis added) However, the Court went on to state, “we do not decide, in this rules case, the constitutional or other substantive concerns that have been raised about the amendments.  Those issues must be left for a proper case or controversy.” (emphasis added) 

So where does this leave us?  Daubert is currently the statutory law pursuant to the 2013 amendments to the Evidence Code.  While the Supreme Court in DeLisle found a portion of those statutes unconstitutional as impinging on the Supreme Court’s rule-making authority, the Court has now expressly receded from its 2017 opinion declining to adopt the Daubert amendments to the extent they were procedural and has adopted the statutory amendments as its own procedural rules.  The Court has also expressly stated that it was not addressing “constitutional or other concerns” about the amendments, which, it explained, would best be addressed in the context of a “proper case or controversy”.  Since the Court’s opinion is immediately effective, as of today, Daubert is once again the law of the land both substantively and procedurally. 

If you have any questions or concerns regarding how today’s Supreme Court ruling affects your case(s), please feel free to contact the attorneys at Conroy Simberg.