The admissibility of expert testimony is a question for the courts. But what qualifies as an expert in one jurisdiction may not pass muster in another.
State courts do not share a uniform standard for admissibility. Some states subscribe to the standard set forth by the Daubert court, while others follow an older holding in Frye. Yet most states have not adopted either standard in its entirety, causing a lack of uniformity even between the states that follow the same underlying law.
Meanwhile, there are some states that have their own completely different standard of admissibility that does not follow either seminal case. With that said, it is critical to know the admissibility standard for expert testimony in any jurisdiction in which your expert plans to testify.
In a unique move, Florida has added on a requirement for its out-of-state medical experts – an expert witness certificate. Under Fla. Stat. § 458.3175, a physician with a license to practice medicine in another state (or in a province of Canada), may provide expert testimony in Florida court only if and when they obtain a certificate from Florida’s Department of Health. While some find that the certificate requirement fosters an environment of accountability, critics of the rule argue that it is simply a way to hinder medical malpractice cases and keep out-of-state experts out of the court. Either way, in order to navigate any sort of medical litigation in Florida, attorneys and experts alike will be reliant on the application of this rule.
Florida Expert Admissibility: A Brief History
The significance of Fla. Stat. § 458.3175 exists within the context of an interesting and ever-changing expert admissibility standard that has left many attorneys and experts confused as to its exact legal requirements.
The Florida courts have long followed the evidentiary standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that is, an expert’s opinion must be generally accepted within the scientific community in order for it to be admitted at trial. Its following is consistent with its ruling in In Re Fla. Evidence Code, 372 So. 2d 1369 (Fla. 1979), in which the Florida Supreme Court held it would follow the procedural rules of the Florida Evidence Code (“Rules 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.”). Therefore, Frye was the governing evidentiary standard for expert admissibility.
That is, until 2013, when the Florida State Legislature amended the Florida Evidence Code to adopt the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (which sets forth an enumerated list of factors, including general acceptance within the scientific community, to consider when evaluating an expert’s opinion). By amending the procedural rules of the Code, some Florida courts began using the Daubert standard in light of the amendment. However, the Florida Supreme Court maintained it would nonetheless still continue to follow Frye. This apparent split within the courts caused great confusion and uncertainty when attempted to admit expert testimony.
To further exacerbate the confusion, within the course of a year, the Florida Supreme Court issued two critical rulings on the matter. First, in DeLisle v. Crane Co., No. SC16-2182 (Fla. October 25, 2018), the Court held that Frye remains the governing standard, finding that the Daubert amendment to the Code infringes upon the Court’s rulemaking authority. Then, In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019), the Court reversed its own ruling, adopted the Florida Evidence Code, and held that Daubert will be the new governing standard for expert admissibility.
Now, the Florida courts follow Rule 90.702 of its evidentiary code, which closely mirrors Rule 702 of the Federal Rules of Evidence (which was amended in response to Daubert). Rule 90.702 states that, “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 qualified expert may testify 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.”
Medical Experts and Expert Witness Certificates
With the admissibility standard seemingly squared away, where does that leave medical experts? In addition to the evidentiary rules governing all experts, medical experts that have a license to practice medicine in another state or a province of Canada must obtain, pursuant to Section 458.3175 and Section 766.102 of the Florida Statutes, something referred to as an expert witness certificate from Florida’s Department of Health.
Adopted in 2011, this additional qualification requires the expert to complete a registration application for the fee of $50. The expert witness certificate is valid for two years after the date of issuance and authorizes the physician to provide a verified written medical expert opinion. The certificate authorizes the out-of-state physician to provide expert testimony about the prevailing professional standard of care in litigation pending against a Florida physician. The medical expert is also permitted to testify in criminal child abuse, neglect, and sexual battery cases. Although the certificate does not permit the medical expert to engage in the practice of medicine in the state of Florida, they may nonetheless be subject to disciplinary action by the Florida Board of Medicine. There are similar certificate requirements for osteopathic medicine (Section 459.0066) and dentistry (Section 466.005) in the Florida Statutes.
The certificate requirement was adopted in the midst of other amendments, which further limited the admissibility of expert testimony. Under Section 766.102, an expert witness can only provide testimony if they specialize in the same specialty as the health care provider in question. The amendment also requires that the expert have devoted time during the three years preceding the cause of action to either clinical or consulting practice within that field, instruction of students in the same specialty, or participation in a clinical research program within that specialty. Similar rules apply to general practitioners, except instead of three years, they must show they engaged in either of those practices within the past five years.
Medical Expert Certificates: Pros and Cons
By adopting Daubert, medical experts testifying in Florida now finally have a solidified standard. Often seen as a more flexible approach, Daubert focuses on the reliability and methodologies of an expert’s opinion. However, the certificate requirement may counteract the standard by preventing parties from obtaining the best possible medical expert, if said expert practices out-of-state. Likewise, the statute creates constitutional concerns, such access to the courts, due process, and equal protection, by potentially barring certain witnesses and impeding the party’s case. The certificate, which places power in the hands of the Florida Board and Medicine and Department of Health, can also be viewed as usurping the role of the trial court as the “gatekeeper” (a responsibility specifically emphasized in Daubert) of expert testimony. This may create a separation of powers issue.
However, proponents of the certificate requirement argue that by obtaining the certificate, any physician licensed outside of the state of Florida is subject to Florida’s licensing board and thus, may be held liable for fraudulent or perjured testimony. The requirement ostensibly prevents or discourages false testimony from out-of-state physicians. It is also noted that the certificate can be obtained with relative ease, requiring the Department of Health to approve any new, valid application within ten days of receipt.
Whether expert witness certificates impede medical litigation in Florida, or as a safeguard against otherwise unqualified experts, is a question that will continue to be answered as the state handles more cases under its newly adopted evidentiary standard.