The Florida Supreme Court Hears Argument on Evidentiary Standards for Expert Testimony

   On March 6, 2018, the Florida Supreme Court heard oral arguments in a much anticipated case on the evidentiary standard for expert testimony in Florida. The case is Richard Delisle v. Crane Company, SC16-2182, and it marked the first time the Court will consider adopting the Daubert standard over the Frye standard.

   The Frye standard focuses on whether the expert’s testimony is “generally accepted” in a particular scientific community.  Daubert, on the other hand, is much stricter and provides that a trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

   The Legislature passed the Daubert standard in 2013 as codified in section 90.702 and 90.704, Florida Statutes.  Since 2013, Florida courts had uniformly applied Daubert until the Florida Supreme Court declined to adopt the Daubert Amendment as a rule of procedure in 2017. The Court found that a rule change would raise constitutional concerns including access to justice and stated that the issue "must be left for a proper case or controversy."

   Delisle used this dicta as an opportunity to present his case and controversy to the Supreme Court. Delisle is a plaintiff in asbestos litigation against Crane Company, RJ Reynolds, and several other defendants. His case went to trial, and he obtained an $8 million verdict in his favor. The defendants appealed to the Fourth District Court of Appeal arguing that expert testimony should have been excluded under Daubert. The Fourth District agreed and reversed.

   Delisle appealed to the Florida Supreme Court contending that the Daubert Amendment was unconstitutional. Crane and RJ Reynolds countered that Daubert is constitutional and should be used instead of Frye. The Plaintiff's bar filed amicus briefs in support of Frye, and the Defense civil and criminal bars filed amicus briefs in support of the Daubert standard.

   The focus of yesterday's arguments was on the Court's jurisdiction and whether or not it had jurisdiction to even hear this issue. Unlike intermediate appellate courts, the Supreme Court has limited jurisdiction. Delisle's counsel argued that there was conflict jurisdiction but could not articulate what conflict existed. It will be the Court's decision whether it has jurisdiction, and the resulting opinion may clear up any confusion, as to whether Florida is a Daubert state or a Frye state, once and for all. Stay tuned for an interesting decision!

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