05/28/2019
Sword or Shield: Daubert Evidence Standard Takes Immediate Effect in Florida
On May 23, 2019, the Florida Supreme Court adopted the Florida Legislature's Daubert amendments to the Florida Evidence Code. In a per curiam opinion, the high court ruled that earlier "grave constitutional concerns" over the rule now “appear unfounded.” The ruling made Florida the latest to adopt the arguably more stringent Daubert standard used in federal court, and move from Frye.
Daubert stems from a 1993 U.S. Supreme Court decision and includes a five-prong test to weigh the scientific validity of expert witness testimony. It creates a higher bar for experts, who must attend a hearing before they are allowed to testify. Under the Frye standard, experts can testify based on their opinion, bringing evidence that could be somewhat new or novel, not necessarily repeatable or peer-reviewed.
In the new opinion, the Court explained its reasoning for adopting Daubert:
"[T]he Daubert amendments remedy deficiencies of the Frye standard. Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’ Daubert, 509 U.S. at 589 . . . . Moreover, . . . the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping."
Most see this shift as positive because they want their opponents to meet a high standard. Others view Daubert's higher standards as a sword, and not a shield, prompting excessive motions against expert witnesses and driving up case costs. Either way, Daubert is now the law in Florida and you have a genuine ability to challenge and exclude experts at the state court level.
Read the full Florida Supreme Court opinion here:
https://www.floridasupremecourt.org/content/download/525509/5838164/file/sc19-107.pdf
