Daubert is Back, Frye is Out – The Florida Supreme Court Reverses its Stance on the Standard for Admitting Expert Testimony

     On May 23, 2019, the Florida Supreme Court issued a per curiam opinion, In Re: Amendments to the Florida Evidence Code, Case No. SC-19-107, wherein the Court has again reversed its position on the standard for admitting certain expert testimony under the Florida Evidence Code. Effective immediately, the Daubert standard has replaced the Frye standard.


     Over the last decade, the Florida Supreme Court and the Florida Legislature have toiled with the appropriate standard for governing the admissibility of evidence. In 2013, the Florida Legislature adopted the Daubert standard in sections 90.702 and 90.704, Florida Statutes. Daubert, which is the standard for admitting expert testimony found in Rule 702 of the Federal Rules of Evidence, is a stringent standard that requires the trial judge to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable and based on scientifically valid reasoning that can properly be applied to the facts at issue. A multi-factor test set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), may be considered for purposes of determining whether an expert’s methodology is valid. By contrast, Frye, which is a more relaxed standard utilized by the minority of states, focuses on whether an expert’s testimony is “generally accepted” in a particular scientific community.


     In February, 2017 the Florida Supreme Court declined to adopt Daubert amendments, to the extent that they are procedural, “due to the constitutional concerns raised” by The Florida Bar’s Code and Rules of Evidence Committee members and commenters.

     In its most recent opinion, the Florida Supreme Court in a 5-2 ruling has now receded from its “prior decision not to adopt the Legislature’s Daubert amendments to the Evidence Code and to retain the Frye standard.” The Court ruled that its earlier “grave constitutional concerns” over the Daubert amendments now “appear unfounded”. The Court found that the Daubert amendments remedy deficiencies of the Frye standard. Specifically, the Court noted that the Frye standard only applied to expert testimony based on “new or novel scientific techniques and general acceptance”, whereas Daubert provides that “the trial judge must ensure that any and all scientific testimony or evidence admissible is not only relevant, but reliable”. (Emphasis added). The Court pointed out that the Daubert amendments will also create consistency between the state and federal courts as it concerns admissibility of expert testimony, which will prevent forum shopping and “promote fairness and predictability in the legal system”. However, the Court noted that its decision does not address the “constitutional or other substantive concerns that have been raised about the amendments…[t]hose issues must be left for a proper case or controversy”.


     Justice Luck, who was recently appointed by Florida’s new Governor Ron DeSantis, wrote a lengthy dissenting opinion. While Justice Luck expressed agreement generally with the majority opinion adopting Daubert, he disagreed for two reasons: (1) he argued that the majority opinion adopts the amendments to section 90.702 as procedural rules without following the procedures set forth under Florida Rule of Judicial Administration 2.140; and (2) he argued that the Daubert amendment is substantive, rather than procedural, and therefore within the authority of Florida’s legislature.


It remains to be seen, what we can expect now in the wake of the Florida Supreme Court’s revert back to Daubert. However, the Court’s decision makes clear that Daubert is once again the standard in Florida, which should assure that all scientific expert testimony and evidence is not only reliable, credible and well-founded, but also assures consistency amongst the federal courts and majority of states.

The case is In Re: Amendments to the Florida Evidence Code, SC19-107 (Fla. May 23, 2019).

In Re Amendments to the Florida Evidence Code, No. SC19-107, May 21, 2019

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