Effective May 23, 2019, the Daubert Standard becomes the Applicable Standard for Expert Admissibility in Florida

On May 23, 2019, in a per curiam opinion, the Florida Supreme Court adopted the Daubert standard for admissibility of expert testimony. In Re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019). As set forth in the 1993 U.S. Supreme Court decision, Daubert v. Merrell Down Pharmaceuticals, Inc., 509 U.S. 579 (1993), in accordance with Federal Rule of Civil Procedure 702, the Daubert standard is a multi-prong test to be utilized when making a preliminary assessment of whether an expert’s scientific testimony is based upon reasoning or methodology that is scientifically valid and that can be properly applied to the facts at issue. Under Daubert, courts must act as “gatekeepers” to establish that expert testimony is both relevant and reliable. The underlying goal is to ensure that speculative or unreliable testimony is not admitted. Pursuant to Daubert, if the court determines that any step in the expert’s chain of logic is unreliable, the expert’s testimony will be rendered inadmissible. The Daubert test for reliability includes assessing: 1) whether the expert’s theory can be and has been tested; 2) whether the theory has been subjected to peer review and publication; 3) the known or potential rate of error of the technique applied; 4) the existence and maintenance of standards controlling the technique’s operation; and 5) whether the technique is generally accepted in the scientific community.

This pivotal decision reversed the Florida Supreme Court’s prior 2017 decision in In Re: Amendments to the Florida Evidence Code, No. SC16-181 (Fla. February 16, 2017), in which it declined to adopt certain 2013 legislative revisions to the Florida Evidence Code that mirrored Daubert. The Court’s recent ruling, which became effective immediately, adopted the 2013 legislative amendments to Florida Statutes Sections 90.702 (Testimony by Experts (and 90.704 (Basis of Opinion Testimony by Experts). The Court’s ruling also reversed its 2018 decision in DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018), where the Court held that the prevailing standard for expert admissibility was the Frye standard. 

The Frye standard refers to the U.S. Supreme Court’s decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The plaintiff-friendly Frye standard allowed for a less strict test for expert testimony admissibility. Under the Frye standard, the proponent of the expert testimony only had to demonstrate that the scientific technique and testing procedure were “generally accepted” by the underlying scientific community. Additionally, the Frye test only examined “new and novel” scientific evidence, leaving the opposing party with no way to challenge unreliable testimony unless a “new and novel” technique was involved. While the Daubert standard requires that the judge serve as the gatekeeper to ensure that juries only hear reliable testimony, the Frye standard is premised on the scientific community establishing the reliability of any expert opinion.

In consideration of its decision to adopt Daubert, the Florida Supreme Court reasoned that it found Justice Polston’s 2017 dissent in In Re: Amendments to the Florida Evidence Code, No. SC16-181 (Fla. February 16, 2017) instructive, and concluded that the “grave constitutional concerns” that previously guided the Court to uphold the Frye standard and reject the Daubert amendments are unfounded. The Court explained that the Daubert amendments remedy Frye’s deficiencies as it ensures not only relevancy, but also reliability. Notably, the Court stated that Daubert creates consistency between the state and federal courts as Florida Statutes Section 90.702 will now mirror Federal Rule of Civil Procedure 702. The Supreme Court further noted that the implementation of the Daubert standard will “promote fairness and predictability in the legal system, as well as help lessen forum shopping.” 

The Florida Supreme Court’s decision to adopt the Daubert standard alleviates years of uncertainty plaguing both plaintiff and defense lawyers regarding the applicable test for expert admissibility and will settle the pervasive and thought provoking question of, “Are we in a Frye state or a Daubert state?”