“Opinion is like a pendulum and obeys the same law. If it goes past the center of gravity on one side, it must go a like distance on the other; and it is only after a certain time that it finds the true point at which it can remain at rest.”
~ Arthur Schopenhauer
Last month when the Florida Supreme Court issued its opinion, In re: Amendments to the Florida Evidence Code, rejecting the Daubert standard that governed the admissibility of expert opinions in Florida since 2013, a beautiful evidentiary pendulum swung back to the place it occupied for some 90 years previously under the Frye “general acceptance” test. The majority opinion, penned by Chief Justice Jorge Labarga, declined to adopt the Daubert Amendment to the extent that it is “procedural” in nature and because it raised “grave constitutional concerns” which are “better left to a proper case or controversy.” The constitutional concerns expressed by the court “include undermining the right to a jury trial and denying access to courts.”
Before 2013, Florida was one of several states that followed what is known as the Frye standard to determine the admissibility of expert testimony. The Frye test stems from a U.S. Supreme Court decision in 1923, affirming the trial court’s ruling in a federal criminal case that held the defendant could not introduce the results of a polygraph test because such deception tests were not “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Although Florida’s statutory framework never codified the Frye “general acceptance” analysis, the Florida courts consistently applied it when evaluating the admissibility of an expert’s opinion. All such testimony was admitted into evidence for the jury’s consideration, so long as the expert testified that any opinions based on new methods or novel techniques were “generally accepted” principles in the expert’s field of practice. The analysis was not applicable to “pure opinion” testimony, as that testimony was based on the expert’s own knowledge, training, and experience.
In the 1993 landmark products liability case, Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court declared that the admissibility of expert testimony under the Frye test was inconsistent with Fed. R. Evid. 702 (codified in 1975), and dismissed 70 years of Frye’s “general acceptance” inquiry for determining admissibility of scientific expert testimony. The Court held that moving forward, the new analysis (known as the Daubert standard) required the judge to assume a “gatekeeping role” and make a threshold determination that “any and all scientific evidence admitted is not only relevant, but reliable.” The focus was not to be on the opinion, but rather the methodology used by the expert to form the opinion. In later years the Supreme Court expanded the scope of its Daubert decision and applied it to any qualified expert witness testimony in federal court.
In 2013, Florida theoretically became a Daubert state when the legislature amended F.S. §90.702 (Testimony by experts) and §90.704 (Basis of opinion testimony by experts), tightening the procedural rules for admitting expert witness testimony, including “pure opinion” testimony. The new rules of evidence mandated that all Florida courts adhered to the federal standard (or Daubert standard) before admitting expert evidence at trial.
As a Board Certified Civil Trial Lawyer with a large plaintiff oriented personal injury law practice in Fort Lauderale, I cannot help but be thrilled by this turn of events. It is no secret that the 2013 legislative changes to the Florida Rules of Evidence, swapping the more inclusive Frye standard for the stricter Daubert standard, resulted in a flood of defense filed motions seeking to exclude expert witness testimony. I know all too well that this aggressive motion practice by defense counsel attacking expert testimony added significant costs to the litigation, delayed the proceedings, and injected yet another layer of uncertainty in the administration of justice – all to the detriment of the injured litigant.
Oftentimes these “Daubert motions” required a special set hearing which typically morphed into a mini-trial, as the judges conducted their “gatekeeping” function with strict scrutiny of every aspect of the expert’s opinion to ensure the opinions sprung from a reliable scientific foundation. This process essentially made the judge an “amateur scientist” who in most instances lacked the educational background and scientific literacy to effectively fulfill the role of gatekeeper, an admonition that Chief Justice William Rehnquist noted in his dissent in Daubert. The problem was, in my opinion, axiomatic – the burden to properly assess, evaluate, and interpret the relevance of highly technical data and complicated scientific principles shifted from the trained experts in a particular field to judges who have no special knowledge or training in those realms.
Even more problematic, which reflects the gist of the Florida Supreme Court’s concern with Daubert, as codified in the 2013 legislation, is the judge’s role as “gatekeeper” – a role that may unconstitutionally undermine, if not completely usurp, what has historically been the jury’s role – to weigh evidence and assign credibility. I suspect this issue will be fully vetted by the Florida Supreme Court when it eventually hears a “proper case or controversy.” At that time the Court will address, not only this concern, but the issue of whether the legislative changes have encroached on the judiciary’s exclusive rulemaking authority under the Florida Constitution to prescribe the procedural rules for Court.
Charles A. Morehead III
BCBA President (2016-2017)