Florida Returns To Daubert Standard For Admission Of Expert Testimony

Florida FlagThe ink was barely dry on Florida Supreme Court’s 2018 decision in DeLisle v. Crane Co., 2018 WL 5075302 (Fla., Oct. 15, 2018). That decision declared Florida’s § 90.702 — which adopted the Daubert standard for the admission of expert testimony — unconstitutional and returned the state to the Frye standard which had been around since 1922. On May 23, 2019, the same Florida Supreme Court that adopted Frye flip-flopped in In re Amendments to Fla. Evidence Code, 2019 WL 2219714 (Fla. 2019) and returned Florida to the Daubert standard, where it will presumably stay.

A national tug-of-war regarding the rules and standards to be utilized in determining who is qualified to testify as an “expert” in a litigated case has been ongoing since 1993. The use of so-called “junk science” in litigation had for years been a growing concern. The term became useful to describe scientific data, research, or analysis considered and opinions given by someone hired to be an expert witness in a case. An entire cottage industry arose involving arguably unqualified experts, relying on questionable scientific evidence and techniques. A “Hired gun” expert would be allowed to testify in front of a judge or jury even though their opinions and premises were suspect and not based on accepted scientific methods. Efforts to standardize and regulate the use of experts has been an ongoing challenge for nearly a century.

FRYE STANDARD

Throughout the 20th Century, American courts and legislatures made numerous efforts at reforming the business of selling forensic opinions which are truly not based in sound science, also known as “junk science.” In the 1922 murder trial of a man named James Frye in District of Columbia federal court, the court disallowed introduction of a lie detector test “proving” the innocence of the defendant. The defendant was found guilty and on appeal, the defendant claimed it was error not to allow the lie detector test. The logical relevance of the test and its potential helpfulness to the jury was obvious. So were the credentials of the test inventor, William Marston. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court shifted the focus of the admissibility of the expert’s testimony from the expert’s credentials to the particular scientific knowledge his testimony would contain. The resulting Frye standard, Frye test, or general acceptance test, as it became to be known, is a test to determine the admissibility of scientific evidence. It provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. A court applying the Frye standard must determine whether or not the method by which that evidence was obtained was generally accepted by experts in the particular field in which it belongs. In many, but not all jurisdictions, the Frye standard has been superseded by the Daubert standard. States still following Frye include California, Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington.

DAUBERT STANDARD

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that the Federal Rules of Evidence superseded Frye as the standard for admissibility of expert evidence in federal courts. This standard is used by a trial judge to make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue. Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. The Daubert standard is the test currently used in the federal courts and some state courts. In the federal courts, it replaced the Frye standard. It is widely believed that this standard gives judges greater authority to evaluate and reject unreliable expert testimony. Federal Rule of Evidence 702 provides:

Rule 702. Testimony by Expert Witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Rule 702 specifies, first, that the witness must be “qualified as an expert by knowledge, skill, experience, training, or education.” If so qualified, the witness may testify in the form of an opinion provided, first, that his testimony is relevant, meaning that it will aid the jury, and second, that it is reliable, meaning it is grounded in sufficient data, reliable methods, and the facts of the case. In re Scrap Metal Antitrust Litig., 527 F.3d 517 (6th Cir. 2008). The Supreme Court in Daubert provided a list of factors for trial courts to consider as they evaluate the reliability of scientific testimony. But that list is not exhaustive, nor any one factor dispositive. Rather, district courts have “considerable leeway” in determining whether expert testimony is admissible. Meridia Prods. Liab. Litig. v. Abbot Labs, 447 F.3d 861 (6th Cir. 2006) (quoting Kumho Tire, 526 U.S. at 152). The burden remains on the proponent of the testimony to establish its admissibility by a preponderance of the evidence. Pride v. Bic Corp., 218 F.3d 566 (6th Cir. 2000).

Under normal circumstances, a district court may resolve a Daubert motion without holding a hearing. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244 (6th Cir. 2001). A hearing is required only if the record is inadequate to decide the motion. Jahn v. Equine Servs., PSC, 233 F.3d 382 (6th Cir. 2000). When the parties brief the admissibility of the experts’ testimony and develop an extensive record that includes depositions, a hearing is unnecessary.

IN RE AMENDMENTS TO FLA. EVIDENCE CODE, 2019 WL 2219714 (FLA. 2019).

On May 23, 2019, the Florida Supreme Court walked back its earlier decision in DeLisle, noting that pursuant to its rulemaking authority under the Florida Constitution, it was specifically adopting § 90.702 (Daubert standard) as the “new” rule in Florida. The court stated that, “We 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.” Constitutional concerns over Daubert were brushed aside, and the court noted that “the grave constitutional concerns regarding the Daubert standard are unfounded.”

A chart which details the law in all 50 states with regard to the standard applied for the admission of expert testimony, can be found HERE. For subrogation questions or issues regarding the selection of an expert which would be appropriate for your subrogation claims and cases, contact Gary Wickert at [email protected].

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Gary L. Wickert
Partner

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has 35 years of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.