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

 

Case

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

 

Background

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.

 

Ruling

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.

 

Impact

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.

Seven Kluger, Kaplan, Silverman, Katzen & Levine Attorneys Listed in “The Best Lawyers of America” 2015

Miami-based litigation law firm Kluger, Kaplan, Silverman, Katzen & Levine, P.L., announces seven of its attorneys have been selected as top legal practitioners by The Best Lawyers in America© 2015. Published by Woodward/White Inc., The Best Lawyers in America is widely regarded as the preeminent referral guide to the legal profession in the United States, basing its listings on an exhaustive year-long survey of the legal profession in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 21st Edition of The Best Lawyers in America (2015), includes 52, 488 attorneys in 137 practice areas, covering all 50 states and the District of Columbia, and  based on more than 5.5 million detailed evaluations of lawyers by other lawyers.

Following are the Kluger Kaplan attorneys listed in The Best Lawyers in America 2015, along with their areas of concentration for which they were selected:

  • Deborah Chames / Of Counsel / Family Law
  • Abbey Kaplan / Member / Commercial Litigation / Entertainment Law / Litigation: Mergers & Acquisitions / Litigation: Real Estate
  • Alan Kluger / Member / Commercial Litigation / Litigation: Banking & Finance / Litigation: Real Estate
  • Philippe Lieberman / Member / Commercial Litigation
  • Steve Silverman / Member / Commercial Litigation
  • Bruce Katzen / Member / Securities / Capital Markets Law
  • Terri Meyers / Partner / Intellectual Property

Kluger, Kaplan, Silverman, Katzen & Levine Partners Named “Super Lawyers” 2014

 A dozen of our attorneys have been selected as top legal practitioners by Super Lawyers. Outstanding lawyers from more than 70 practice areas, who have attained a high-degree of peer recognition and professional achievement, are named Super Lawyers each year. Kluger Kaplan was also ranked in the “Top 100” law firms in Florida.  The selection process is competitive and includes independent research, peer nominations and peer evaluations.

Kudos to the following attorneys:

Rising Stars                                                 Super Lawyers

– Jeffrey Berman                                            – Deborah Chames
Casey Cusick                                              – Abbey Kaplan
– Jorge Delgado                                             – Bruce Katzen
– Lisa Jerles                                                   – Alan Kluger
Justin Kaplan                                               – Todd Levine
– Richard Segal                                              – Steve Silverman

 

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Young litigators are routinely taught that if the plaintiff does not demand a jury trial in its complaint (or counterclaim), it permanently waived this important right.  This time-worn lesson is not necessarily correct, however.  There is still hope.

The Florida Rules of Civil Procedure provide:

“Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefore in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.”

Fla. R. Civ. P. 1.430(b).  However:  The Judge “may allow an amendment in the proceedings to demand a trial by jury or order a trial by jury on its own motion”  Fla. R. Civ. P. 1.430(d).  All may not be lost.  Continue reading

A Trustee Cannot Escape His Duties

By Bruce A. Katzen

Recently I have encountered situations where an individual is named co-trustees of a trust , but really just acts as a rubber stamp and has very little interest or desire to fulfill the obligations.  Rather than resigning, the co-trustee may allow another trustee to make all of the decisions of the trust.  This is not a wise choice.

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