Hold the Frye

It turns out the return to the Frye standard was short lived in Florida. Within a seven-month span, the Florida Supreme Court struck down the Daubert standard and then effectively reversed itself, ruling that, effective immediately, Daubert is, in fact, the proper standard for determining the admissibility of expert testimony.

On May 23, 2019, seven months after its ruling in DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018), the Florida Supreme Court receded from that rejection of the Daubert standard in In re Amendments to the Florida Evidence Code, 2019 Fla. LEXIS 818, 44 Fla. L. Weekly S170, 2019 WL 2219714. The court based its decision on its “exclusive rulemaking authority” under the Florida Constitution, and it adopted the Florida legislature’s Daubert Amendment as a procedural rule of evidence, rather than revisiting the ruling in DeLisle. The court noted that the “‘grave constitutional concerns’ raised by those who oppose the amendments to the Code appear unfounded.”

By way of background, Frye was adopted in 1952 as the evidentiary standard applicable to expert testimony in Florida, and it was the standard until the legislature enacted Daubert through an amendment to Florida Evidence Code Section 90.702 in 2013. In adopting the amendment, the legislature stated its intent that the Daubert standard was applicable to all expert testimony, including that in the form of pure opinion, whereas Frye only applied when an expert rendered an opinion that was based upon new or novel scientific techniques.

Then, on Oct. 15, 2018, the Florida Supreme Court, in DeLisle,  struck down the legislature’s adoption of the Daubert standard and held that Frye is the appropriate test to determine the admissibility of expert testimony in Florida courts.

Now, the court’s most recent action reverses its 2018 holding and makes Daubert the standard.

Daubert is considered the more stringent standard—courts are to act as gatekeepers to ensure that any and all scientific testimony or evidence admitted is not only relevant, but also reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the U.S. Supreme Court explained that a trial court has a responsibility to act as a gatekeeper, “ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”

As it currently stands, Florida courts must analyze expert testimony using the test set forth in Section 90.702, which states:

“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.”

In addition to adopting the amendment to Section 90.702, the most recent opinion adopted an amendment to Florida Statutes Section 90.704, which reads, in its entirety:

“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 clarified that its most recent decision is a “rules case,” and that the decision is not intended to address “constitutional or other substantive concerns that have been raised about the amendments,” noting that such issues “must be left for a proper case or controversy.”

Further, the court noted that the Daubert amendments “remedy deficiencies” inherent in the Frye standard because Daubert requires the trial judge to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Finally, the court said that the amendments would allow for consistency between state and federal courts on admissibility of expert testimony, promote “fairness and predictability in the legal system,” and decrease forum shopping. 

While this area of Florida law had been unsettled since 2013, with this most recent ruling, it is likely Daubert is here to stay for the foreseeable future. However, the court’s lack of comment on constitutional or other “substantive concerns” raised about the amendments pending an actual case or controversy leaves the door open for opponents to argue the appropriateness of Daubert-based evidentiary rulings.

In the meantime, practitioners—particularly those in the construction-defect/construction-product arenas—should be prepared for increased evidentiary challenges to admissibility of expert testimony. For example, opinions based on extrapolation of testing results are likely to be challenged, as are opinions based on testing that is not conducted in strict accordance with applicable ASTM standards or other industry-specific or product-specific standards. The threat of these types of challenges, and their probability of success, is expected to influence not only the types of claims made going forward, but also the degree of investigation into the basis for the claims and the credentials of the experts providing opinions supporting the claims.