FLORIDA LAW UPDATE – Expert Witness Standards


On March 6, 2018, the Florida Supreme Court heard argument in the case of DeLisle v. Crane Co., et al., No. SC16-2182 on the issue of what standard to use for admission of expert testimony in Florida state courts. Florida attorneys and judges have been uncertain whether Frye (longtime traditional Florida standard) or Daubert (federal court standard and Florida legislative standard) will be the governing standard for admission of expert testimony going forward.

Some attorneys and judges dispute whether there is really a significant difference between the standards. Both seek to keep “junk science” out of the courtroom.

In DeLisle, the plaintiff challenge the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older Frye standard in favor of what some attorneys and judges consider the more rigorous Daubert standard for admissibility of expert testimony.

There has been considerable uncertainty in the lower courts as to the proper standard for expert testimony following the Supreme Court’s rules decision that declined to adopt the 2013 Daubert Amendment; to the extent it is procedural. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. While that rules decision did not pass on the constitutionality of the Daubert Amendment, it raised uncertainty about the viability of Daubert in Florida and the potential that the Court would ultimately rule the statute invalid when presented with a proper case and controversy in which to address the issue.

The Florida Supreme Court might not provide an answer if it rules on the case procedurally that it does not have jurisdiction or if the 2013 amendment to the statute is not substantive, and therefore not a constitutional issue. It would likely be considered substantive if the Court views it as having changed the standard for evaluating what constitutes “junk science” that should be excluded.

Three of the justices expressed concern about the impact of Daubert on litigants and the court system. Justice Quince asked the Plaintiff about the impact of increased hearings on motions to exclude experts under Daubert, which the Plaintiff argued were overburdening the court system. Justice Pariente asked the Defendants whether the Daubert standard tends to usurp the jury’s role as trier of fact in evaluating expert testimony. Justices Pariente and Lewis also questioned the Defendants about the practical implications of Daubert for plaintiffs attempting to prove that their injury was caused by exposure to a defendant’s toxic substance over a period of several years through several different products. The Plaintiff here contracted mesothelioma after long-term exposure to asbestos from several different products. Justice Lewis noted that there are not going to be human experiments in such cases to support causation, and questioned if there is an unreasonable burden on plaintiffs to quantify their exposure.

It is anticipated that Justices Labarga, Pariente, Lewis, and Quince will form a majority to reject the Daubert standard.

Until the issue is resolved, litigants are well advised to seek rulings on the admissibility of expert testimony under both Daubert and Frye. Some trial judges in fact are requiring that any hearings on motions to exclude expert testimony proceed under both standards. This approach will help preserve issues for appeal and guard against the possibility of having to re-litigate these matters once there is a definitive ruling from the Supreme Court on the standard for the admissibility of expert testimony going forward.