BREAKING NEWS: Florida Supreme Court rejects Daubert expert standard proposed by Florida legislature

February 16, 2017 General

Today, the Florida Supreme Court issued its disposition which “decline[d] to adopt” a proposed amendment to our state’s rules for the admissibility of expert testimony.  Florida has historically used the “Frye” standard for expert testimony, which is generally considered to be an easier hurdle for plaintiffs to clear in order to get expert testimony before a jury.  A few years ago, the Florida legislature amended various statutes to attempt to impose the more stringent “Daubert” standard which is used by a majority of states and all federal courts.  However, our judiciary was not required to immediately implement Daubert because of a question over whether changing the expert testimony rule was substantive or procedural.  Generally, our legislature has authority over the “substance” of court proceedings, and the courts determine “procedural” issues.  This matter went before our Supreme Court in February of last year, and was extensively briefed.  Oral argument was held last September.

The Court declined to adopt the proposed Daubert standard to the extent it is procedural, “which must be left for a proper case or controversy.”  The Court cited concerns including “undermining the right to a jury trial and denying access to courts.”  However, as noted in the dissent, there is no reported authority in the 36 Daubert states or any federal court that Daubert violates the constitutional guarantees of a jury trial and access to the courts; to the contrary, there is case law holding that Daubert does not violate the constitution.

Justice Polston aptly wrote: “Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony?  Of course not.”

Regardless, the Court has spoken, and for the foreseeable future, defense lawyers in Florida will continue to have our work cut out for us in contesting the admissibility of expert testimony proffered by plaintiffs.  However, until a “proper case or controversy” comes before the Court on the substantive/procedural issue, this matter will remain unresolved.

The Court’s disposition appears at: