New Bill Modifies Expert Witness Testimony Standard: How Will Litigators Be Impacted?
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. June 6, 2013
By Alan J. Kluger
Governor Scott recently signed a bill that will modify the standard for expert witness testimony in the State of Florida. The new law would move away from the existing Frye standard towards the Daubert standard used in most states and in federal court.
Under the Frye test, which was pronounced in Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), scientific evidence presented in court must be “generally accepted” by a meaningful segment of the associated scientific community. Novel techniques, placed under high scrutiny by the Frye standard, forced courts to examine papers, books and judicial precedents on the subject at hand to make determinations as to the reliability and “general acceptance.” The Daubert standard, set forth in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), found that that Federal Rules of Evidence superseded Frye and did require “general acceptance.”
Although the law is geared towards personal injury and medical malpractice litigation, opponents of the new Florida law, predominantly business litigators, argue that the Daubert test opens the flood gates to challenges of expert witnesses. As a practitioner of complex business litigation, I am not persuaded by these arguments. Challenges to expert witness testimony happen in state court every day under the Frye test. The Daubert standard, as applied to medical malpractice, personal injury and criminal cases, allows the court to evaluate expert testimony that may be newer and less entrenched in the scientific community and exclude those that are untested or based on unsound, unsupported theories. Conversely, Daubert as applied in business litigation disputes, merely allows the court to weigh the probative value of the testimony. While we may see an initial spike in motions to strike experts, our state court judges will have a extensive case law from the federal courts to guide them in making decisions regarding experts. When the dust settles, Florida will be left with an expert witness standard that serves to keep only expert testimony that is reliably based upon sound industry practice.