Florida’s tug-of-war between its courts and its Legislature regarding the appropriate standard for a judge to use to assess the admissibility of an expert’s opinion testimony has finally been settled.

Gary L. Wickert

On Oct. 14, the Florida Supreme Court announced that the Frye standard is the governing standard when determining the admissibility of expert testimony. This decision clarifies longstanding confusion and uncertainty among the Florida courts and litigators regarding applicable standards.

As subrogation professionals know all too well, the use of expert witnesses has become an integral and indispensable aspect of American litigation, and it is often the side with the best expert that wins the day. The use of expert testimony in American litigation has grown exponentially since it came into focus, and the use of experts is now frequently used to place into evidence opinions and circumstances related to opinions, which would not otherwise have been put into evidence.

The new lucrative forensic cottage industry came hand-in-hand with abuses and the use of “junk science.” States began to recognize the need to protect the credulous jury from con men and quick-buck “experts” eager to make a profit at all costs, and standards were developed.

The Frye standard, developed in 1922, provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. The Daubert standard, created in 1993, held that the Federal Rules of Evidence superseded Frye as the standard for admissibility of expert evidence in federal courts.

This standard is used by a trial judge to make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue.

Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

The Daubert standard is the test currently used in the federal courts and some state courts.

For over 40 years the Florida Legislature and the Florida Supreme Court have worked in tandem to enact and maintain codified rules of evidence. This arrangement between the branches to avoid constitutional questions of separation of powers continued uninterrupted from the Evidence Code’s inception until 2000, when the Florida Supreme Court declined to adopt legislation that governed evidence, holding it unconstitutional.

In 2017, it further declined to adopt as a rule certain legislative changes “to the extent that they are procedural” due to “grave constitutional concerns” about the Daubert standard.

Effective in 2013, the Legislature amended F.S.A. § 90.702, entitled “Testimony by Experts.” In essence, it provided that the admissibility of expert testimony would be governed by the Daubert standard. In DeLisle v. Crane Co., expert testimony regarding medical causation of mesothelioma was disallowed under § 90.702, which codified the Daubert standard.

On appeal, the Supreme Court recognized that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. It noted that Frye relies on the scientific community to determine reliability, whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.

The court announced that Frye, not Daubert, is the appropriate test in Florida courts, holding the statute to be unconstitutional.

For a comprehensive chart detailing the law/case decisions in all 50 states regarding the prevailing standard for admissibility of expert testimony, click here.

Gary Wickert is a partner with the Matthiesen, Wickert & Lehrer law firm in Hartford, Wisconsin. This blog post is reprinted with permission.