Daily Business Review: Florida Standard for Expert Opinions Uncertain After Decision
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. March 7, 2017
Kluger Kaplan associate, Gina Rhodes, is featured in today’s Daily Business Review Board of Contributors Column:
Florida Standard for Expert Opinions Uncertain After Decision
Commentary by Gina Rhodes, Daily Business Review
On Feb. 16, the Florida Supreme Court 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.
In 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 admissible only 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: “The testimony is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and 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.
In declining to adopt the 2013 versions of the amended sections, the court explained that even though it is the policy to adopt provisions of the Florida Evidence Code “as they are enacted and amended by the Legislature,” “on occasion the court has declined to adopt legislative changes … because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”
The court noted the committee recommended by a 16-14 majority not to adopt the amendments and “in support of its recommendation, both the committee and commenters … raised what we consider ‘grave constitutional concerns.’ ” 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 Ricky Polston, concurring in part and dissenting in part, disagreed with the majority for failing to replace the Frye standard with the Daubert standard, honing in on the fact that the Daubert standard is followed not only in federal courts but also in “36 states.” Polston continued, stating he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees of a jury trial and access to courts” and in fact cited to case law across the nation stating the opposite.
Overall, unless and until the Daubert standard is challenged in a “proper case or controversy” where the Florida Supreme Court has an opportunity to review the constitutional issues it referenced, 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 Florida Supreme Court, the court should use the Frye standard in ruling on the motion.
Appeals of trial and appellate court rulings on these issues could lead to a determination by the Florida Supreme Court regarding the constitutionality of the Daubert amendments. However, until then, 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 Rhodes is an associate at Kluger, Kaplan, Silverman, Katzen & Levine in Miami. She focuses her practice on commercial litigation disputes in both state and federal court.