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Florida Supreme Court declines to adopt legislative amendment incorporating Daubert standard for expert testimony

On February 16, 2017, in IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE, No. SC16-181, the Florida Supreme Court declined to adopt legislative amendments incorporating the Daubert standard for expert testimony as part of the Florida Evidence Code. This was a widely anticipated opinion on an in issue which has pitted the civil plaintiff’s bar (which generally favors the predecessor Frye standard) against the civil defense bar.

The Frye test, which until recently has been applied in all Florida courts, provides that “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)). There is an important qualification to the application of Frye which in practice has made it inapplicable to vast majority of expert testimony offered in Florida courts -- the standard only applies to expert testimony based upon new or novel scientific evidence. Most expert evidence in Florida has been admitted under the “pure opinion” exception to the Frye standard which allows experts to testify simply based on their experience and training. SeeFlanagan v. State, 625 So.2d 827, 828 (Fla. 1993) (“pure opinion testimony, such as an expert’s opinion that a defendant is incompetent, does not have to meet Frye, because this type of testimony is based on the expert’s personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness”); see also Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007).

The Daubert standard was articulated by the U.S. Supreme Court in a trio of cases in 1990’s and was subsequently codified in 2000 in Fed. E. Evid. 702, which provides: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto 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."

It is important to note that the Daubert standard operates to supersede and replace not just the Frye standard with regard to new or novel scientific evidence, but also the “pure opinion” exception the Frye standard. Many states have followed the federal courts in adopting the Daubert standard, but the Florida Supreme Court has explicitly rejected it. See Brim v. State, 695 So. 2d 268 (Fla. 1997). The Florida Legislature bypassed the Florida Supreme Court in 2013, enacting two proposed amendments to the Florida Evidence Code adopting the Daubert standard in Fla. Stat. §§ 90.702 and 90.704. In refusing to adopt these changes, “to the extent they are procedural,” the Florida Supreme Court has now asserted its authority under art. V, § 2(a) of the Florida Constitution as the final arbiter of procedural evidentiary rules under Florida law.

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