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Florida Fourth DCA rules that accident reconstruction testimony was admissible under Daubert standard for admissibility of expert testimony in vehicular manslaughter case

On December 13, 2017, in Kemp v. State of Florida, No. 4D15-3472, the Florida Fourth DCA ruled that the trial court had properly admitted the testimony of the State’s accident reconstruction expert. The defendant argued the expert’s opinion did not meet the requirements of Section 90.702, Florida Statutes, and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The Fourth DCA preliminarily noted that because the parties relied on Daubert at trial and because neither party challenged the validity or constitutionality of the Daubert Amendment, Daubert would be applied to the appeal. See Clare v. Lynch, 220 So. 3d 1258, 1261–62 (Fla. 2d DCA 2017) (applying a statutory amendment governing expert witness qualifications in medical malpractice cases, despite the Florida Supreme Court’s refusal to adopt the amendment “to the extent it is procedural,” where the relevant party did not raise the constitutionality of the statute). Daubert assigned the trial judge as gatekeeper to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. That obligation applies not only to “scientific” testimony, but “to all expert testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The U.S, Supreme Court articulated a non-exhaustive list of factors bearing on the reliability inquiry: (1) whether the theory can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of a particular scientific technique, as well as the existence of standards controlling the technique’s operation; and (4) general acceptance in the scientific community. Section 90.702. Florida Statutes, similarly provides that expert testimony is admissible 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. Despite a vigorous dissent from Justice Taylor, who noted that the expert had done no testing in the case to formulate his opinion, the Florida Supreme Court concluded that the requirement of the statute and of Daubert had been satisfied.