Florida Supreme Court Rejects Daubert, Reaffirms Frye
In a 4-3 split decision, the Florida Supreme Court has just reaffirmed in no uncertain terms, that Florida courts are to apply the Frye standard to determine the admissibility of expert or scientific evidence. DeLisle v. Crane Co., (Fla., October 15, 2018). Justice Canady wrote the dissent challenging the jurisdiction of the Court, but nonetheless noted:
“[t]he constitutionality of amended section 90.702 is unquestionably an important issue that is worthy of consideration by this Court.” Justices Polston and Lawson concurred in the dissent.
The Frye Standard
Frye, decided in 1923, was adopted by Florida in 1952. Under the Frye standard, expert opinions and testimony are admissible where they are based on a scientific technique that is generally accepted as reliable in the relevant scientific community. Frye v. the United States, 293 F. 1013 (D.C. Cir. 1923); Kaminksi v. State, 63 So. 2d 339, 340 (Fla 1952).
In 1993, the U.S. Supreme Court issued its opinion in Daubert, which continues to be the standard for Federal Courts. Under Daubert, a trial judge is assigned the gatekeeping function to ensure that “any and all scientific testimony or evidence admitted is not only relevant but reliable.”
In 2013, the Florida legislature passed legislation changing the evidentiary standard for expert testimony from the long-standing Frye (in state court) to Daubert. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In 2013, the Florida Legislature amended the Florida Rules of Evidence Code to incorporate Daubert.
At the trial level, DeLisle obtained a jury verdict in his favor after the judge admitted the opinions of three of plaintiff’s expert witnesses. On appeal, the Fourth DCA reviewed the admission of the testimony of the experts under the Daubert standard and found the trial court failed to properly apply Daubert. DeLise appealed to the Florida Supreme Court on the grounds that Daubert and its codification (Florida Statute 90.702) were unconstitutional and infringed on the court’s rulemaking authority.
Frye Again: Decision
The Florida Supreme Court held that Florida Statute 90.702 as amended in 2013 is purely procedural. The Court reinforced that it is the exclusive authority to adopt rules for the practice and procedure in all courts. The DeLisle Court also found that the amended statute conflicted with a rule of the Court and therefore was unconstitutional.
Daubert is generally considered to be the more stringent standard and was a strong vehicle for defense counsel to challenge, and ultimately exclude, the opinions of plaintiff’s experts who failed to meet the prongs of Daubert. But the ability to challenge experts in state court under Frye only exists for experts who render opinions that are based on new or novel scientific techniques.
As pointed out in the written opinion, medical causation testimony “is not new or novel and is not subject to Frye analysis.” Under Frye, the more liberal standard, expert opinions will proceed to juries who will then be charged with the duty to weigh the opinions against the credibility of the experts.
In cases where experts methodology is suspect, or where medical causation is hotly contested, if federal jurisdiction exists, litigants should consider removal to federal court where Daubert remains the standard.