In 1923, the courts came up with a methodology for an adjudicator's evaluation of the admissibility of expert testimony in Frye v. United States, 58 293 F.2d 1013 (D.C. Cir 1923). This standard was widely accepted, and when the Federal Courts adopted The Federal Rules of Evidence, Frye was codified. It was essentially "the test" for expert testimony throughout a 70-year period. The Frye Standard essentially "looks at whether or not the underlying basic principles of evidence are generally accepted within the scientific community," according to the staff analysis of the Florida House of Representatives.

In 1993, the United States Supreme Court adopted a somewhat different approach in Daubert v. Merrell Dow Pharmaceuticals, Inc., 34 509 U.S. 579 (1993). Their analysis was not met with universal acclaim. In the years following Daubert, the Court refined that new analysis with their holdings in General Electric Co. v. Joiner, 522 U.S. 35 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 36 (1999). With these revisions came broader acceptance of the new analysis, and Rule 702 of the Federal Rules of Evidence was amended in 2000 to apply that standard to expert evidence in Federal Court.

This was a significant boost to the efficacy of what is commonly referred to as the Daubert standard. However, this amendment to the Federal Rules of Evidence changed the process in Federal Court, not in the state courts around the country. There has been a split among the states, as some adopted the Daubert standard and others retained Frye. In retaining the Frye standard, the Florida Supreme Court referred to Daubert as "a more lenient standard," and held that Florida's Evidence Code retained instead "the higher standard of reliability as dictated by Frye."

Florida joined the Daubert ranks in the 2013 legislative session, with the passage of House Bill 7015. This has not been signed by Gov. Scott and is therefore not law yet. If signed, it would be effective July 1, 2013. This bill amends the Florida Evidence Code, Sections 90.702 and 90.704.

In the Federal Rules, Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

The revision to 90.702 of the Florida Evidence Code provides:

90.702 Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an  opinion or otherwise, if:

(1)  The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

House Bill 7015 also amends Section 90.704. This will change the considerations of an adjudicator regarding admissibility of the facts and data upon which experts rely. The current Section 90.704 provides:

90.704 Basis of opinion testimony by experts. The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

House Bill 7015 adds the following language to Section 90.704:

Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

This Section 90.704 alteration will be of less impact in workers' compensation proceedings, where we have no juries. An argument may be raised, however, regarding whether a Judge of Compensation Claims should rely upon such "facts or data." The  "probative value" will likely remain the analysis in the event that a party seeks to have the judge rely on such underlying "facts or data."

Practitioners of workers' compensation and civil trial work in Florida should become familiar with the Daubert standard in anticipation of House Bill 7015 becoming law. It is likely that the Governor will sign this legislation.

David Langham is deputy chief judge of the Florida Office of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.