In a ruling that raises new issues about the adoption of the Daubert standard for the admissibility of expert opinions in Florida state court, the Florida Supreme Court has declined to adopt, to the extent they are procedural, the 2013 legislative changes the Florida Evidence Code that put the Daubert standard into effect. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. Although the recent decision does not address the ultimate constitutionality of the Daubert Amendment, it will create confusion in the state courts until further clarity is provided.

The Daubert Amendment, which went into effect in July 2013, dropped the older Frye standard in favor of the more rigorous Daubert standard for admissibility of expert testimony. In declining to adopt the Daubert Amendment to the extent that it is procedural, the Supreme Court’s ruling cites constitutional concerns that adopting Daubert would impede access to the courts and undermine the right to a jury trial. Justice Polston, in a strongly worded dissent, disputes these concerns and notes that federal courts and a clear majority of states have long adhered to Daubert without any such constitutional concerns. The ruling does not reach the constitutionality of the Daubert Amendment, or resolve the extent to which the Amendment is substantive or procedural in nature.

The procedural versus substantive distinction is critical to the analysis and livelihood of Daubert as a matter of Florida law going forward. To the extent that the Daubert Amendment is construed as strictly procedural in nature (i.e. not impacting rights, obligations, causes of actions, etc.), then the Supreme Court ruled the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter within the province of the Court. Whether the Daubert Amendment is unconstitutional as a matter of substance—meaning it is entirely unconstitutional—is left to be determined. The Court’s ruling did not address this issue. Not until an actual case and controversy is before the Florida Supreme Court can that discrete and seminal issue be decided. Until then, the Daubert Amendment in the Florida Evidence Code remains a valid and binding law. However, the recent ruling is a clear indication that the Court, as currently comprised, is likely to find the Daubert Amendment unconstitutional when presented with the issue in an appropriate case.

These unresolved issues will certainly create great confusion in state courts. In fact, anecdotal evidence confirms that many judges in South Florida have already refused to hear Daubert challenges until further clarity is provided. The recent ruling will inevitably create procedural delay until the courts put in place some definitive position or action in this regard. Plaintiff’s attorneys will likely seek to continue or stay any Daubert challenges pending a ruling on the substance of the statute. Also likely are expert depositions or other discovery that is more prolonged due to emphasis on both Frye and Daubert until the dilemma is resolved.

Alternatively, plaintiff’s attorneys will be on the hunt to tee up a case for appeal before the Florida Supreme Court on this issue. Opponents of the Daubert standard may be motivated to quickly find a case to get the merits of the Daubert Amendment before the Florida Supreme Court. Three of the four Justices concurring in the recent decision—Pariente, Lewis and Quince—are due for mandatory retirement on January 8, 2019, the same day as Governor Rick Scott’s last day in office. Governor Scott has said he plans to make three replacement appointments on that day. Any such appointees may have a more favorable view of Daubert than the outgoing Justices.

To view the full opinion click here:  http://www.floridasupremecourt.org/decisions/2017/sc16-181.pdf