On October 15, 2018, the Florida Supreme Court finally put to rest the issue of whether Florida will be a Frye state or a Daubert state when it comes to the admissibility of expert testimony. In a 4-3 ruling, the Court held that a 2017 law passed by the Florida legislature endorsing the Daubert standard invaded the rulemaking authority of the Florida Supreme Court. In doing so, the Court specifically determined that Florida will adhere to the Frye standard as outlined in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye standard premises the introduction of new or novel expert testimony on whether it is “generally accepted in the scientific community,” and not on whether the methodology utilized by the expert witness is proven to the trial court to be reliable, as Daubert requires.
In its decision in DeLisle v. Crane Co. SC16-2182, the Court held the Fourth District Court of Appeal impermissibly applied the Daubert standard to expert witness testimony in a case involving asbestos exposure and tobacco use. The Fourth District had ruled the trial court impermissibly allowed expert testimony which had questionable legitimacy under Daubert, although the testimony arguably met the Frye standard. The DeLisle court overturned the Fourth District, holding that its application of the Daubert standard to the case was inappropriate.
In rejecting the Daubert standard and re-endorsing the Frye standard, Justice Peggy A. Quince wrote on behalf of the majority, “[t]his rule – that expert testimony should be deduced from generally accepted scientific principles –has been the standard in Florida cases and, today, we reaffirm that it is still the standard.” Significantly, the DeLisle court held that Florida judges are not obligated to assess whether the methodology utilized by expert witnesses is reliable; that determination is to be left to the relevant scientific community.
This ruling unfortunately runs against the vast majority of jurisdictions in the United States, as all federal courts and thirty-eight (38) states endorse the Daubert standard.
More importantly, this ruling will be yet another blow against insurers and corporations, as the Plaintiff’s bar will once again to be able use “junk science“ and pure opinion testimony to get past the court’s proverbial “gate” and to the jury, thereby increasing litigation exposure in the State of Florida. If you or your company are faced with serious expert witness considerations in your litigation, please feel free to reach out to us for guidance on how to navigate these significant evidentiary issues.
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