Florida Supreme Court Rejects More Rigorous Expert Testimony Standard

Nathan Adams IV is a Partner in Holland & Knights Tallahassee office and Jerome W. Hoffman is a partner in both the Jacksonville and Tallahassee office

HIGHLIGHTS:

The federal court system and 36 states have adopted the so-called Daubert standard in place of the Frye standard when it comes to qualifying expert witnesses under the rules of evidence. In 2013, the Florida Legislature amended the Florida Evidence Code to adopt the Daubert standard. The Florida Supreme Court, by a 4-2 vote on Feb. 16, 2017, declined to adopt as a rule the legislative changes "to the extent that they are procedural" due to "grave constitutional concerns" about the Daubert standard. The result is that we are likely to see more verdicts in Florida state courts based on non-verifiable and scientifically unreliable opinions than in most of the rest of the country. The federal court system and 36 states have adopted the so-called Daubert standard in place of the Frye standard when it comes to qualifying expert witnesses under the rules of evidence. In 2013, the Florida Legislature amended the Florida Evidence Code to adopt the Daubert standard. Specifically, Florida Statute 90.702 allows expert testimony about scientific, technical or other specialized knowledge only 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."1 Florida Statute 90.704 permits disclosure to the jury of otherwise inadmissible facts or data relied upon by an expert only if "the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."2

The Florida Supreme Court, by a 4-2 vote on Feb. 16, 2017, declined to adopt as a rule the legislative changes "to the extent that they are procedural" due to "grave constitutional concerns" about the Daubert standard.3 In effect, the Florida Supreme Court accused the U.S. Supreme Court and a majority of other state courts that adopted Daubert of "undermining the right to a jury trial and denying access to the courts."4 Several federal cases hold the opposite.5 The result is that we are likely to see more verdicts in Florida state courts based on non-verifiable and scientifically unreliable opinions than in most of the rest of the country.

Prior to 2013, Florida followed the Frye standard for the...