As any expert is well aware, the debate between Daubert versus Frye as the standard for expert witness admissibility is ongoing throughout the United States. While the federal courts follow the Daubert standard, a number of state courts have adopted the Frye standard – or in some cases, a hybrid of the two holdings. Now, after years of uncertainty, the state of Florida has recently joined the ranks of the Frye team, holding in DeLisle v. Crane Co., No. SC16-2182 (Fla. October 25, 2018) that Frye is the governing standard when determining the admissibility of expert testimony. This decision clarifies longstanding confusion and uncertainty among the Florida courts and litigators regarding applicable standards. Now that the state standard is finally defined, Florida attorneys, as well as experts, should familiarize themselves with this holding prior to admitting any expert testimony. Those outside of Florida should take heed as well, since other courts may be influenced by Florida’s seminal decision.
Daubert or Frye: What’s the Difference?
Before understanding the legal consequences of the DeLisle decision, it is important to distinguish the key differences between the two governing standards for expert admissibility, which can be found in the seminal cases Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Decades before Daubert, the D.C. Circuit set the standard for expert admissibility in Frye in its 1923 opinion. The Frye court held that expert witness testimony needs to gain “general acceptance” within the scientific community in order to be admissible. As the Court in Frye held:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
See Frye, at 1014.
The overall premise of the decision stressed the importance of scientific recognition by the appropriate authorities within the field. The Frye decision was not immediately followed and was not cited for over ten years after the holding. It eventually gained legal momentum in the 1970s, often cited in both civil and criminal cases.
In 1993, however, a competing standard emerged in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), wherein the Supreme Court overruled Frye within the federal courts, holding that the standard was inconsistent with Rule 702 of the Federal Rules of Evidence. In Daubert, the Court held that the two requirements under Rule 702 on which an expert’s admissibility is based – relevance and reliability – were incompatible with Frye’s “general acceptance” test. The Court emphasized the importance of a trial judge’s gatekeeping responsibility when admitting expert testimony and listed a non-exhaustive list of factors to consider, which included:
- whether the expert’s technique or theory can tested and assessed for reliability
- whether the technique or theory has been subject to peer review and publication
- the known or potential rate of error of the technique or theory
- the existence and maintenance of standards and controls
- whether the technique or theory has been generally accepted in the scientific community
The standard set forth in Daubert and its progeny has been expanded to include non-scientific testimony as well as opinions based on skill- or experience-based observation, as stated in Rule 702. Generally, the Daubert standard for admissibility is considered more flexible than Frye, as an expert opinion’s general acceptance within the scientific community is not a requirement but one of several factors to consider.
While Daubert applies to all federal courts and some states, a number of states continue to use the Frye general acceptance test, while the states that have adopted Daubert (approximately 27) have not all uniformly applied the standard.
DeLisle v. Crane: Back to the Frye Standard
In the recent case, DeLisle v. Crane, the Florida Supreme Court held, in a 4-3 decision, that Frye is the governing standard of admissibility for expert testimony. The decision is considered a turning point for Florida’s evidentiary rules, as the preceding case law was unclear as to which standard applied. The holding is a definitive answer to years of uncertainty in Florida law.
DeLisle filed a personal injury lawsuit against the defendants, alleging they caused him to develop mesothelioma. At trial, DeLisle presented evidence that he was exposed to asbestos during his employment at Brightwater Paper Co. between 1962 and 1966. Crane, a valve and pump manufacturer, used materials containing asbestos to which DeLisle was exposed. DeLisle testified that he smoked cigarettes with asbestos-containing filters from 1952 to 1956 and also admitted asbestos exposure from products belonging to non-parties. The issue of causation became hotly contested, with each party in disagreement as to whether the other products (but for the cigarettes) were substantial contributing factors to DeLisle’s mesothelioma. The plaintiff introduced the testimony of numerous experts – a toxicologist, environmental scientist, pulmonologist, and an industrial hygienist. The jury found in favor of DeLisle and awarded him $8 million in damages. The trial denied the defendants’ various post-trial motions for relief. As part of the defendants’ requests for appellate relief, they appealed the trial court’s admission of plaintiff’s expert testimony.
The Fourth District reviewed the expert testimony under the Daubert standard and found that the trial court “failed to properly exercise its gatekeeping function” as to the plaintiff’s expert testimony. The appellate court remanded for entry of an entry of a directed verdict for one defendant and remanded for a new trial of another. DeLisle subsequently appealed to the Florida Supreme Court, which reversed the Fourth District’s decision and reinstate the final judgment of the trial court. In doing so, the Florida Supreme Court had to make an important decision as to the definitive standard of expert admissibility.
As the DeLisle opinion explains, in 1979, the Florida Supreme Court adopted the Florida Evidence Code, to the extent that the code was procedural. See In Re Fla. Evidence Code, 372 So. 2d 1369 (Fla. 1979). In In re Fla. Evidence Code, the Court recognized that the “[r]ules of evidence may in some instances be substantive law, and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court.” To avoid confusion, the Court chose to adopt the procedural rules of the Code. That is, until 2013, when the Florida Legislature sought to adopt the Daubert standard despite the Court’s consistent following of Frye. The Florida Supreme Court maintained it would still use the Frye standard but did not decide on the constitutionality of the newly codified amendments at the time. As a result, most Florida courts continued to follow the Evidence Code and apply Daubert, as seen in the Fourth District Court of Appeals decision in DeLisle. But when reviewed by the state’s highest court, the Florida Supreme Court reaffirmed that Frye is the governing standard in Florida courts, holding that the Daubert amendment to the Code infringes upon the Court’s rulemaking authority. Under the Frye framework, the Court held that plaintiff’s experts were “neither new nor novel” and their admission at trial was proper.
The Future of Frye in Florida
Now that the state has formally and definitively adopted Frye, what does this mean for Florida experts? Generally, Daubert is considered the more flexible standard, as admissibility does not hinge on the expert’s opinion being generally accepted within the scientific community. Therefore, a fair assumption would be that the decision may have negative implications for experts that derive their opinions from relatively unknown or novel fields. Likewise, experts that obtain their credentials from certificate programs – opposed to basing their qualifications on scientific skill or training – are likely to face more scrutiny.
However, many proponents of Frye believe that the DeLisle ruling may actually make it easier to admit expert testimony. The DeLisle Court pointed out that liberal admissibility has not always been the case under Daubert:
Despite the Supreme Court’s intention that Daubert be applied flexibly, it has been observed that, in actuality, the gatekeeping role bestowed upon the judiciary has blocked more court access than it has enabled … defendants often exploit the requirements of Daubert as a sword against plaintiffs’ attorneys. Others have written that Daubert has “produced a minefield clogged with ‘Daubert hearings’ that are more lengthy, technical, and diffuse than anything that preceded them.
Overall, the DeLisle opinion is a precedent-setting opinion for Florida and provides its litigants clarity and uniformity in regard to expert testimony. The implications of the decision will unfold as more cases are decided in its aftermath.