Daubert, Frye, or Both: Becoming an Expert on the Standards for Experts

By April 29, 2016

By Gina P. Villar
Up until 2013, the standard for admitting expert testimony in Florida was fairly simple to comprehend: any expert opinion based on scientific technique is “inadmissible unless that technique is generally accepted as reliable in the relevant scientific community.” Thus, according to what many attorneys refer to as the Frye test, the expert testimony must be generally accepted as reliable among his or her peers in order to be admissible in court.
Effective July 1, 2013, Florida changed its expert testimony standard from Frye to Daubert pursuant to Fla. Stat. § 90.702. The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals rejected the Frye standard and implemented a new standard for allowing experts to testify based on Federal Rule of Evidence 702, which in the simplest way, is comprised of two parts: 1) the testimony must be based on “scientific, technical, or other specialized knowledge;” and 2) the testimony must “assist the trier of fact to understand the evidence.” The Court also explained that judges can look to other factors in making its determination including if the theory has been tested; peer reviewed; published; contains a small rate of error; and is generally accepted in the relevant scientific community. The Supreme Court made clear that the less-stringent Frye test is just a factor under Daubert.
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Fla. Stat. § 90.702, which incorporates the Daubert standard, additionally mandates that the testimony, (1) “is based upon sufficient facts or data;” (2) “is the product of reliable principles and methods;” and that (3) “the witness has applied the principles and methods reliably to the facts of the case.” Florida attorneys seeking to admit expert testimony now have to overcome numerous challenges that were not necessary under the Frye test, making it difficult for expert testimony to be admitted during trial. In fact, the number of motions challenging expert testimony has significantly increased since Florida adopted Daubert.
While many attorneys have just began understanding the intricacies of Daubert, it is imperative that attorneys do not forget about Frye just yet. On December 4, 2015, the Florida Bar Board of Governors voted to maintain Frye in state courts. The issue is presently in front of the Florida Supreme Court. Reverting back to the Frye test, which is less rigid than the Daubert test, could not only reduce the number of challenges to an opposing counsel’s expert, but could also increase the number of experts testifying at trials.
No matter which standard Florida follows, there are a few key questions attorneys should ask themselves to ensure their expert will not be excluded from testifying:

  1.  Is your expert prepared? It is important to always anticipate cross-examination questions and potential problems with the expert’s testimony. Attacking these problem areas early on with your expert can give your expert more credibility. It is also just as important for all attorneys to be prepared to produce any and all underlying materials of which your expert based his or her opinion on, as you will be required to produce all of these materials once requested by opposing counsel.
  2. Are your expert’s statements consistent? It is easier for opposing counsel to exclude your expert by pointing out inconsistencies in depositions, trials, hearings, and written reports.
  3. Is your expert’s testimony relevant? The testimony must be more than simply giving an opinion that a lay witness is qualified to give. The expert’s testimony should also be assisting the trier of fact in a way that is more than what an attorney can argue in closing arguments. Finally, the methodology relied upon must be relevant to the facts of the case.
  4. Most importantly, do you AND your expert know the standards? It is vital that both you and your expert are aware of all of the standards, as it could vary in both state and federal court (providing the Florida Supreme Court adopts the Frye test proposed by the Florida Bar Board of Governors). If your expert can pass a Daubert challenge, most likely that expert will be able to pass Frye with flying colors, as Frye has been known to be much less strict than Daubert. However, even if the Florida Supreme Court reverts back to Frye, attorneys should continue their due-diligence in hiring and preparing their experts for trial to further strengthen the credibility of their expert, and ultimately their position in the case.