On February 16, 2017, the Supreme Court of Florida declined to adopt the 2013 amendments to the Florida Evidence Code which replaced Frye standard for expert witnesses with the Daubert standard. In its opinion, the Court stated “we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy.” The ruling shows the interplay between the Florida Supreme Court and the Florida Legislature may create confusion and uncertainty about the standard attorneys and judges should apply for expert witness opinions going forward.
The 2013 Amendment
In January 2013, the Florida Legislature amended the Florida Evidence Code, sections 90.702 and 90.704, regarding expert opinions. The purpose of the amendments was for Florida to shift from the Frye standard to the Daubert standard for expert witness opinions, in order to put Florida in line with the federal courts and most states. Under the Frye standard, an expert opinion based on a scientific technique was only admissible if such technique was “generally accepted” as reliable in the relevant scientific community. Under Daubert, the standard is arguably broader.
The amended version of Section 90.702 adds that an expert witness can testify 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.” Section 90.704 was also amended to prevent inadmissible evidence from being disclosed to the jury through an expert opinion unless the probative value “in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” The Daubert standard has governed the admissibility of expert witness testimony since the statutes were amended.
Although owners of intellectual property, such as copyright, patents, and trademarks, have long had civil redress in federal courts, trade secret litigants have been the “odd man out,” so to speak, of the intellectual property world. However, this omission in the federal landscape was not due to lack of need, as the constant development of technology and growing trend of employee mobility has resulted in an unprecedented level of threat to companies’ trade secrets. Consequently, the Defend Trade Secrets Act (DTSA) was born and signed into law in May 2016. Albeit, the DTSA is not the first time federal lawmakers have addressed the need for trade secret protection, as the new act amends the Economic Espionage Act (EEA) established in 1996, which provides criminal penalties for the theft of trade secrets. The EEA may serve as a deterrent factor, however, until now trade secret owners were left without a federal private civil remedy.
The DTSA confers subject matter jurisdiction over civil actions involving trade secret misappropriation to U.S. district courts, thereby opening federal courts to litigants without invoking diversity or ancillary jurisdiction. In order to bring a claim under the DTSA, the misappropriated trade secret must be “related to a product or service used in, or intended for use in, interstate or foreign commerce.” 18 U.S.C. §1836(b)(1). Moreover, under the DTSA, the term “trade secret” is defined as:
Miami-based litigation firm Kluger, Kaplan, Silverman, Katzen & Levine announces that Jamie Zuckerman has been named partner of the firm. Ms. Zuckerman focuses her practice primarily on complex litigation, including commercial litigation and trust and estate litigation, assisting clients in a range of business and corporate litigation matters, trust and estate disputes, and appellate matters.
“Jamie is a rising star at the firm whose tenacity and focus makes her a zealous advocate for her clients,” said Alan Kluger, Founding Member of Kluger Kaplan. “Her deep understanding of complex legal issues, coupled with her creative approach to problem solving, gives us great confidence that she will continue to be an invaluable asset.”
Kluger Kaplan’s Jamie Zuckerman and The Lubitz Financial Group’s Philip Herzberg are featured in December’s Journal of Financial Planning for their article on advance directives: