Over the past few years, the governing standard for expert admissibility in the state of Florida has been uncertain, to say the least. But in the recent decision, In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019), it appears the Florida Supreme Court has finally settled on an evidentiary standard. In a reversal of its prior ruling, the Court now holds that Daubert is the governing standard for the admissibility of expert witnesses. The decision marks a turning point in Florida’s evidentiary rules, as it joins the majority of states that follow the Daubert standard.
Florida’s History of Expert Admissibility Standards
The holding in In re: Amendments to the Florida Evidence Code was decided after consideration of its lengthy procedural history and the constitutional issues concerning Florida’s evidentiary standards. Since 1979, the Florida courts (along with all federal and state courts) followed the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that is, expert opinions must gain “general acceptance” within the scientific community in order to be admitted. However, in 1993, the United States Supreme Court adopted the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which focuses on an analysis of enumerated factors when determining expert admissibility. Unlike Frye, the Daubert standard applies to all types of scientific and non-scientific expert testimony. Daubert was adopted by the federal courts and codified in Rule 702 of the Federal Rules of Evidence. Most state courts also adopted Daubert, but Florida continued to employ the Frye standard.
In 2013, the Florida State Legislature amended the Florida Evidence Code and adopted the Daubert standard. Although the Florida courts had typically adopted the procedural rules of the code, the Florida Supreme Court continued to use the Frye standard but did not rule on the constitutionality of the amendments. This practice naturally created some confusion amongst attorneys and experts as to which standard should rightfully apply. In 2018, the Florida Supreme Court definitively held in DeLisle v. Crane Co., No. SC16-2182 (Fla. October 25, 2018), that Frye was the governing standard and that the Daubert amendment to the Florida Evidence Code infringed upon the Court’s rulemaking authority. The DeLisle decision seemed to mark a turning point, as a standard for expert admissibility was unequivocally set forth by the Florida Supreme Court.
In Re: Amendments to the Florida Evidence Code
The DeLisle decision, however, was not the Florida Supreme Court’s final word on expert admissibility. In In re: Amendments to the Florida Evidence Code, decided on May 23, 2019 in a 5-2 decision, the Court overruled its prior ruling. The Court expressly adopted the amendments set forth in the Florida Evidence Code, holding that Daubert is the governing standard when determining the admissibility of expert testimony in Florida state courts. The Court found that the previous “grave constitutional concerns” of Daubert were unfounded and that the amendments “remedy deficiencies of the Frye standard,” as Daubert applies to all types of expert testimony – not just new or novel techniques. The decision also cited the Court’s longstanding practice of adopting provisions of the Florida Evidence Code, noting that the amendments “will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”
Justice Robert Luck dissented on the grounds that the Court lacked authority to amend its rules without following the traditional amendment process, which requires referral to the Florida Bar committees. Justice Jorge Labarga also dissented, finding that Frye is the superior standard for determining the admissibility of expert testimony. Justice Labarga wrote that “Daubert and its progeny drastically expanded the type of expert testimony subject to challenge” and that the standard will “negatively impact constitutional rights” by usurping the jury’s role from evaluating the evidence.
The drastic change in the Court’s position since the DeLisle decision may be attributed to the retirement of three Florida Supreme Court justices and their subsequent replacement with more conservative justices. However, in light of the bench’s current makeup and the unlikelihood of any additional justices retiring, it is safe to say that the Court’s current position and adoption of the Daubert standard will remain the same for the near future.
