Standard for Expert Opinions Uncertain in Light of the Supreme Court of Florida’s Recent Decision



The Florida Supreme Court has declined to follow the Florida Legislature’s decision around expert witness testimony requirements. On February 16, 2017, the Supreme Court of Florida declined to adopt the 2013 amendments to the Florida Evidence Code which replaced the Frye standard for expert witnesses with the Daubert standard. The ruling shows that the interplay between the Florida Supreme Court and the Florida Legislature may create confusion and uncertainty for attorneys and judges about the standard they should apply for expert witness opinions going forward.


Florida Supreme Court



In January 2013, the Florida Legislature amended the Florida Evidence Code regarding expert opinions. The purpose of the amendment 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. What’s the difference between the two?

  • The Frye Standard: an expert opinion based on a scientific technique is only admissible if such technique was “generally accepted” as reliable in the relevant scientific community.
  • The Daubert Standard: a more stringent and slow process, which requires additional hearings to determine the validity of expert opinion.



The FL Supreme Court declined to adopt the new amendments, and therefore Florida will continue to use the Frye standard, unless or until challenged in a “proper case or controversy” where the Supreme Court of Florida has an opportunity to review the constitutional issues it referenced. The Court explained that even though it is the policy to adopt provisions of the Florida Evidence Code as the Legislature suggests, they have declined to on occasion “because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”

The Court noted ‘grave constitutional concerns’ with the change. The concerns were not discussed in detail in the opinion, but touched upon the constitutional right to a jury trial and denying access to the courts.

Justice Polston, concurring in part and dissenting in part, disagreed with the majority for rejecting to replace the Frye standard, honing in on the fact that the Daubert standard is followed not only in federal courts, but also in “36 states.” Justice Polston continued, stating he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees” and in fact, cited to case law across the nation stating the opposite.



The ruling could have a substantial impact in the trial courts. For example, when a party objects to the admissibility of an expert witness opinion based upon the Daubert standard, the opposing party may argue that, based on the Court’s ruling, the Daubert amendments are unconstitutional. A party seeking to admit expert testimony could also argue that the amendments are procedural in nature, and because they were not adopted by the Supreme Court of Florida, the court should use the Frye standard in ruling on the motion.

Unless or until the FL Supreme Court rules differently on the issue, it appears this ruling is likely to cause confusion in courts across the state in applying the standard for admitting, challenging, or excluding expert opinions under the Florida Evidence Code.



Gina RhodesGina Rhodes is an associate at Kluger, Kaplan, Silverman, Katzen & Levine, P.L. and focuses her practice on commercial litigation disputes in both state and federal court.

Defend Trade Secrets Act: The New Federal Civil Cause of Action for Trade Secret Misappropriation

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:

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Kluger Kaplan Silverman Katzen & Levine Promotes Jamie Zuckerman to Partner

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.”

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