On March 6, 2018, the Supreme Court of Florida heard argument in a case that presents the Court with an opportunity to resolve whether Frye or Daubert will be the governing standard for admission of expert testimony going forward in Florida state courts. DeLisle v. Crane Co., et al., No. SC16-2182. In this closely watched case, the Plaintiff challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older Frye standard in favor of 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 Supreme Court voted four to three to accept discretionary-review jurisdiction in DeLisle in July 2017, giving the Court its first opportunity to directly consider the constitutionality of the Daubert Amendment. (For additional background, see Florida Supreme Court to Rule on Constitutionality of Daubert Standard; Daubert Under the Microscope Again by Florida Courts.)

The first several minutes of the oral argument focused on whether the Court has jurisdiction in this case to rule on the constitutionality of the Daubert Amendment. Justices Canady and Lawson, who dissented from the Court’s July 2017 decision to accept discretionary-review jurisdiction, sharply questioned the Plaintiff on this point, and disputed his position that the Fourth District Court of Appeal had ruled on the constitutionality of the Daubert Amendment by applying the 2013 statute. James Ferraro, arguing for the Plaintiff, maintained that the Court properly accepted conflict jurisdiction because the Fourth District’s application of Daubert conflicted with earlier Supreme Court decisions pre-dating the enactment of the Daubert Amendment, which adhered to the Frye standard. However, he was unable to identify a district court of appeal decision refusing to apply the Daubert Amendment, in conflict with the Fourth District’s decision below. In general, conflict jurisdiction requires an express and direct conflict with a decision of another district court of appeal or the Supreme Court on the same question of law.

The parties’ arguments also addressed whether the Plaintiff’s experts would have been excluded even under the Frye standard—an alternative basis for the Fourth District Court of Appeal’s ruling. The Defendants argued that the Fourth District correctly concluded that the Plaintiff’s experts should have been excluded under either Frye or Daubert. Justices Pariente and Quince expressed skepticism of this position and questioned why the testimony would not have been sufficient for the jury to hear and evaluate under Frye.

Elliot Scherker, arguing for Defendant R.J. Reynolds, downplayed the differences between Daubert and Frye, stating that the first part of the Daubert test is the Frye “general acceptance” standard. Mr. Scherker referred to an “exceedingly thin” line between the two standards, both of which aim to keep junk science out of the courtroom, and argued that the expert testimony excluded by the Fourth District is junk science under any definition.[1] Richard Doran, arguing for Defendant Crane Co., also urged that the outcome in this case would be the same under either Daubert or Frye, and that it was unnecessary for the Court to reach the constitutional issue in this case. During the Plaintiff’s rebuttal argument, Justice Lewis, who was in the majority that voted to accept discretionary-review jurisdiction in the case, pressed Mr. Ferraro on this point. He asked the Plaintiff for the scientific basis for the excluded testimony that would make it admissible under Frye and noted that it may not be necessary for the Court to reach the constitutional issue if the Defendants would prevail even under Frye.

Finally, the parties addressed the central issue to determining the constitutionality of the Daubert Amendment—whether it is substantive or procedural in nature. Plaintiff reiterated the argument made in his brief that the Daubert Amendment is procedural (i.e., not impacting rights, obligations, causes of actions, etc.), and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court.

Justice Pariente noted that the Daubert Amendment has been deemed procedural for purposes of retroactive application, and asked Defendant R.J. Reynolds how the same statute could then be deemed substantive for purposes of separation of powers. Mr. Scherker responded that, under Florida precedent, whether a statute is substantive or procedural depends on the context in which the issue is raised, and that it cannot be the case that a statute deemed procedural for purposes of retroactivity is automatically also deemed an unconstitutional violation of separation of powers. Mr. Scherker argued that section 90.702 of the Florida Evidence Code, which sets out the standard for admission of expert testimony, has been substantive in part and procedural in part since its adoption in 1976 and in its current form as amended in 2013. He urged that the 2013 amendment to the statute is substantive, and therefore constitutional, because it 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.

The Court did not hear argument from any of the several amici curiae that filed briefs in the case. The Attorney General for the State of Florida filed a brief in support of the Defendants, and had requested leave to participate in oral argument, which was denied.

The Supreme Court is anticipated to issue its decision in the coming months, which promises to resolve the current uncertainty about the continued viability of Daubert in Florida. If the Justices remain consistent with their positions in the February 2017 rules decision, which declined to adopt Daubert to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in DeLisle, it is anticipated that Justices Labarga, Pariente, Lewis, and Quince will form a majority to reject the Daubert standard. As highlighted in the oral argument in DeLisle, there remains a possibility that the Court will rule on other grounds (e.g., affirming on the basis that the Defendants would prevail even under Frye) and delay resolution of whether Daubert or Frye will be the standard in Florida going forward.

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.