On May 23, 2019, in a shocking reversal of its own seven-month old precedent, the Florida Supreme Court issued a per curium opinion adopting the previously-rejected 2013 legislative amendments to Florida Statute Section 90.702, which codified the Daubert standard for the admissibility of expert testimony in Florida cases.
The decision, presently labeled as In re: Amendments to the Florida Evidence Code, SC19-107 (May 23, 2019), seems to overturn the Court’s October 2018 decision in DeLisle v. Crane Co., 258 So. 3d 1221 (Fla. 2018), wherein the court determined the Frye v. United States test governing the admissibility of expert testimony, which had been utilized in Florida before the legislative amendments, was the proper standard, and that the 2013 legislative amendments to Section 90.702 were unconstitutional. However, the Amendments decision does not address the DeLisle case directly, with the Court instead choosing to adopt the Daubert standard through its ability to establish procedural rules of evidence.
Significantly, the Court majority in In re: Amendments included two of three justices recently appointed by new Florida Governor Ron DeSantis, who ruled differently than their predecessors had in DeLisle. The new In re: Amendments decision rejects the claimed constitutional deficiencies in the legislature’s actions found by the DeLisle court, and once again implements the Daubert standard for the admissibility of expert testimony by adopting the 2013 legislative amendments to Florida Statute Sections 90.702 and 90.704. The Court specifically held that the decision is “effective immediately.”
In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the United States Supreme Court established a flexible yet rigorous standard for the admissibility of expert testimony, requiring the Court to perform a “gatekeeper” function to keep unreliable expert testimony from juries. That standard requires the assessment of the reliability of proposed testimony by considering the facts and data upon which an expert relies for his or her opinion; the methodology employed by the expert in reaching the opinion; and whether the expert has reliably applied the chosen methodology to the facts of the case.
Through this decision, the ten-year debate in Florida on the proper standard for the admissibility of expert testimony should come to an end, as Florida joins nearly 40 other states who have adopted the Daubert standard. This decision also re-establishes the opportunity to dramatically affect litigation through properly challenging “junk science” or deficient expert witnesses.