January 10, 2018 UPDATE:  The Supreme Court of Florida has scheduled oral argument in the case for March 6, 2018, at 9:00 a.m

The Supreme Court of Florida is poised to decide the constitutionality of the Daubert standard for admissibility of expert testimony, resolving whether Frye or Daubert will be the governing standard going forward in Florida state courts. DeLisle v. Crane Co., et al., No. SC16-2182. The appeal 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. The State of Florida and several other amici curiae have filed briefs weighing in on both sides of the debate, highlighting the wide-reaching impact of the issue before the Court.

The plaintiff in DeLisle brought product liability claims against tobacco companies and others alleging that he developed mesothelioma as a result of exposure to the defendants’ asbestos-containing products. The jury rendered an $8 million verdict in favor of the plaintiff, which the defendants appealed. The Fourth District Court of Appeal held that plaintiff’s causation experts should have been excluded pursuant to Daubert, ordering a directed verdict in favor of one defendant and a new trial for a second defendant.

Plaintiff successfully petitioned the Supreme Court to accept discretionary review of the case. He argues that the Fourth District’s decision should be reversed because the Daubert Amendment violates separation of powers under the Florida Constitution and infringes on the Supreme Court’s authority to adopt rules of judicial practice and procedure. The case has attracted the attention of multiple amcius curiae that have been permitted to file briefs. These include the Florida Justice Association and 44 Concerned Physicians, Scientists, and Scholars Regarding Causation of Asbestos-Related Disease (in favor of petitioner), and the State of Florida, Washington Legal Foundation, Florida Defense Lawyers Association, and Florida Justice Reform Institute (in favor of respondents).

The Supreme Court’s decision to accept jurisdiction in DeLisle provides it with a proper case or controversy to decide the constitutionality of the Daubert Amendment and resolve the uncertainty that followed its recent rules decision in which the Court declined to adopt the Daubert Amendment to the extent it is procedural. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. That rules decision cited “grave constitutional concerns” that the Daubert Amendment may undermine litigants’ access to courts and the right to a jury trial. But the Court did not reach the constitutionality of the amendment or whether it is a substantive or procedural enactment, which it could not do in the context of a rules decision outside of a proper case or controversy. The resulting uncertainty regarding the legitimacy of the Daubert Amendment has created confusion in the lower courts as to the appropriate standard.

As argued in the briefing in DeLisle, the procedural versus substantive distinction is central to whether the Daubert Amendment will be upheld. To the extent that the Daubert Amendment is deemed solely procedural in nature (i.e., not impacting rights, obligations, causes of actions, etc.), the Supreme Court is anticipated to rule that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court. On the other hand, to the extent that the Daubert Amendment is construed to be substantive in nature, it should be upheld as a valid enactment by the Legislature.

There is no bright line rule defining whether a statutory provision is procedural or substantive. The petitioner and supporting amici curiae note that rules of evidence are often deemed procedural and argue that the Legislature improperly acted to overrule longstanding Supreme Court precedent adhering to the Frye standard. In his reply brief, the petitioner urges that rules of evidence are presumptively procedural, and that “[t]here is not a single, identifiable substantive aspect present or intended in the Florida Evidence Code.” On the other side, the respondents and their supporting amici curiae point out that the Supreme Court has previously upheld other statutes governing admissibility of evidence against separation of powers challenges, and that the Daubert Amendment provides litigants a substantive protection against unreliable expert testimony.

The State of Florida argues in its amicus curiae brief that the Daubert Amendment does not violate separation of powers, pointing out that the amendment does not arrogate power to the Legislature and in fact empowers the courts with greater discretion in exercising their gatekeeping function regarding expert testimony. The Attorney General also warns that a ruling that the Daubert Amendment is unconstitutional could have widespread negative effects beyond the Daubert/Frye debate. The brief argues that invalidating the Daubert Amendment on separation of powers grounds would cast doubt on numerous other statutes governing admissibility of evidence, outside of the Evidence Code, that have never been formally adopted by the Supreme Court. This could burden the Court with unprecedented rulemaking obligations to address these scattered evidentiary provisions outside of the Evidence Code.

The briefs in DeLisle also address the relative merits of Daubert versus Frye, although the question of whether the Daubert standard undermines any substantive constitutional rights of access to courts or the right to a jury trial is not at issue in the current appeal. Instead, the focus in DeLisle is whether the Daubert Amendment is invalid on separation of powers grounds. Nonetheless, the Court’s prior rules decision—and its decision to accept discretionary-review jurisdiction in DeLisle—indicates that the Court, as currently comprised, may be inclined to find the Daubert Amendment unconstitutional.

The petitioner’s reply brief in DeLisle was filed on December 12, 2017. The Court has not yet set a date for oral argument. When it ultimately rules, the Court’s decision will have widespread impact and promises to resolve the current uncertainty about the continued viability of Daubert in Florida.