The Frye v. Daubert Saga Continues; Florida Supreme Court Adopts Daubert Standard
The Daubert standard has found favor in most U.S. courts as encouraging expert opinions based on more reliable methods. Nevertheless, in October 2018, Florida’s Supreme Court rejected Daubert as the standard, in favor of the Frye standard.
But now, just a few months later, and with a new makeup of justices, Florida’s Supreme Court has reversed its October decision unilaterally and without petition, and has held that the Daubert standard is indeed the proper standard in Florida.
The use of expert opinions in trials is to assist the trier of fact in the quest for truth in complex subject areas that are not commonly known to laypersons. Court proceedings would quickly become circuses if just any “expert” evidence were permitted for consideration by judge or jury. For this reason, courts employ standards by which evidence may, or may not, be admitted as expert evidence.
Almost twenty years ago, the U.S. Supreme Court abandoned the standard that had been in use since the 1923 case Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The so-called “Frye” standard for the admissibility of expert evidence required that “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Florida courts over time began applying a “pure opinion” exception to the Frye standard, admitting into evidence the opinions of any expert who ignored scientific method but relied on his or her own experience or training.
Since the 1993 case from which it was derived, most U.S. courts have employed the Daubert standard to determine the admissibility of expert evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Daubert Court noted that the Frye standard conflicted with Federal Rule of Evidence 702, and failed to require general acceptance of the theory or technique as a precondition of admissibility. The Daubert Court stressed that the purpose of Federal Rule of Evidence 702 is to ensure expert evidence is both relevant and reliable. The focus of the evidence under Rule 702, and under Daubert, is therefore not the opinion itself, but the principals and methods by which the opinion was formed. Daubert requires a three-part analysis of expert opinion: was it based upon sufficient facts or data, was it the product of reliable principles and methods, and did the expert reliably apply the principles and methods to the facts of the case.
Florida’s Supreme Court in October 2018 found unconstitutional the Florida Legislature’s attempt to codify the Daubert standard regarding admissibility of expert testimony. DeLisle v. Crane Co., 2018 Fla. LEXIS 1883 (Fla. 2018). The attempted codification of the Daubert standard, in the view of the Florida Supreme Court in October, violated the separation of powers given its exclusive authority to set court procedures. Further, the high court at that time held that the Frye standard is the better standard, and the one to be used in Florida courts rather than Daubert.
But now, Florida’s Supreme Court has receded from its position in DeLisle, and issued a 5-2 opinion adopting the Daubert standard for evidence throughout Florida. In re Amendments to the Fla. Evidence Code, No. SC19-107, 2019 Fla. LEXIS 818 (May 23, 2019). The amendments replace the Frye standard with the Daubert standard for admitting expert testimony to align with Federal Rule of Evidence 702. The Court stated that Daubert provides that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The Court went on to reason that by adopting the Daubert standard, creating consistency between state and federal courts, the amendments “will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”
Learning Point: In Florida, Daubert is now the prevailing standard for expert witness evidence. Going forward, Florida requires a three-part analysis of expert opinion: was it based upon sufficient facts or data, was it the product of reliable principles and methods, and did the expert reliably apply the principles and methods to the facts of the case.