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Florida Supreme Court Limits Exclusion of Expert Witnesses

Published: November 30th, 2018

Michael J. Furbush

A recent Florida Supreme Court decision regarding the admissibility of expert witness testimony is expected to benefit plaintiffs and put more disputed science in front of juries. Florida’s high court has rebuked the Legislature’s attempt to level the playing field by subjecting expert witnesses to additional scrutiny before their testimony can be presented to juries.

The long-simmering issue revolves around two conflicting legal standards that guide courts in whether expert witness testimony can be admitted as evidence. Under the Frye standard, which is based on a U.S. Supreme Court case that questioned the admissibility of lie detector tests, an expert witness can be excluded only if his or her testimony has not been “generally accepted” and tested by the scientific community. Once the prevailing standard across the nation, Frye is now the law in only a handful of states, and it is now the standard in Florida again.

“It is significant that Florida has now broken with most of the rest of the nation on how it will treat expert scientific witnesses,” says Michael J. Furbush, a trial attorney in Dean Mead’s Orlando office who is certified in business litigation law by The Florida Bar Board of Legal Specialization.

In 1993, Congress revised the Federal Rules of Evidence and adopted the Daubert standard, following the principles of a Supreme Court decision that gave trial court judges considerable discretion in acting as gatekeepers for scientific evidence. Most states have since adopted the Daubert standard. The Florida Supreme Court explained the difference between Frye and Daubert in its October 15 opinion this way: “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges … ”

Or, as the U.S. Supreme Court explained, under Daubert, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”

In practical terms, says Furbush, the Daubert standard makes it easier for defendants to ask a judge to bar expert testimony that stretches the boundaries of credibility. He acknowledges that challenging an expert witness before trial usually involves more briefs, depositions and hearings, creates delay, and increases the burden on the parties and the court. Plaintiffs’ lawyers opposed to the adoption of Daubert argue that deep-pocketed corporate defendants use the added burden to fend off legitimate claims and thus limit access to the courts.

Florida has wrestled with competing standards since 2013

The issue had resided in a gray area in Florida. In 2013, the Florida Legislature voted to adopt the Daubert standard, despite opposition from The Florida Bar, which argued that the law would burden the courts and substantially drive up costs. The Florida Chamber of Commerce supported the Daubert standard as a much-needed tort reform that would discourage frivolous claims and align the state’s rules of evidence with the federal rules and most states.

The Florida Supreme Court pointedly did not endorse or adopt the Legislature’s 2013 switch to Daubert and expressed doubts about whether the legislation violated the separation of powers doctrine. In Florida, the constitution gives the Legislature power to make substantive changes to the law, but procedures – rules for how the laws will be applied in the courts – are the exclusive purview of the Supreme Court. The evidence code is a mix of both elements, and for decades the two branches of government have managed to shape the code without stepping on each other’s toes.

That was not the case with the argument over Frye and Daubert, with sharply differing opinions as to whether this was an issue of procedure or substantive law. Once the Legislature weighed in, the issue would inevitably wend its way to a reckoning at the state’s high court.

Court removes all doubt about expert witness standard

The Florida Supreme Court chose to address the evidence standard through Delisle v. Crane Co., a personal injury claim in which the plaintiff blamed his mesothelioma on the asbestos fibers formerly used in cigarette filters and the valve gaskets manufactured by an employer. As is frequently the case with diseases claimed to have been caused by environmental factors, expert scientific testimony was critical.

In the October 15 opinion, the high court seized the opportunity to emphatically remove any doubt about the debate between Frye and Daubert in Florida, ruling that the admissibility of expert testimony is procedural and thus the Daubert law infringed on the court’s authority. For the foreseeable future, trial courts in Florida will observe the Frye standard, which will reduce the number of pre-trial challenges to expert witnesses and make it easier for either side in a case to get their witnesses in front of a jury. In practice, that will benefit plaintiffs’ attorneys in medical malpractice, products liability and toxicity cases. It may also occasionally work against a criminal defendant if the government is using a new forensics technology.

What does a return to Frye mean?

Furbush offers the following takeaways, based on his 23 years of trial experience:

  • Don’t expect this issue to go away. The state constitution provides that the Legislature can change the procedures of the courts with a two-thirds vote of both chambers. The Daubert law fell short of that super-majority, but should pro-Daubert forces gain numbers, the Legislature can return to this issue. It will continue to be a political football.
  • In cases where disputed expert scientific testimony will affect the outcome, this provides another reason for business defendants to try to move their cases to federal court, which will continue to provide an avenue to challenge dubious scientific testimony.
  • Frye doesn’t give anyone carte blanche to introduce junk science. New or “novel” scientific theories can still be challenged before they reach a jury under Frye and can be excluded if they have not been generally accepted and tested by the scientific community. Arguably, Frye is a stricter standard of admissibility than Daubert, because the court isn’t allowed to serve as a stand-in for the relevant scientific community.
  • Unlike the Daubert standard that allows pretrial challenges to all expert witnesses, Frye only allows challenges to new and novel science. Non-scientific opinions based only on a witness’ experience or training cannot be challenged under Frye.

Finally, remember that trial skills count, says Furbush. If you are a business facing a claim that may rest on the credibility of expert witnesses, it now is much more likely that the jury will be the decision-maker after hearing both sides of a disputed science or methodology. Be sure you are retaining experienced trial counsel who understands how to question expert witnesses effectively.