This article was originally published by Bloomberg Law on July 5, 2019. 

Florida’s top court has embraced the federal Daubert standard for the admissibility of expert scientific testimony. Companies or individuals involved in litigation in Florida that requires expert testimony now need to factor several consequences into litigation.

A recent Florida Supreme Court decision modernized how scientific testimony will be admitted in litigation, which has far reaching implications for litigation involving foods, pharmaceuticals, intellectual property, commerce, real estate and product liability.

Lack of consistency and predictability is not a hallmark of a modern judicial system. Opinion testimony offered by expert witnesses is both a foundation and a focus of many litigated cases. Whether one side or the other can present evidence at trial or survive a summary judgment hearing depends on the strength and admissibility of opinion testimony.

Until the Florida Supreme Court stepped in on May 23 in In re Amendments to the Florida Evidence Code, the opinion testimony centerpiece of many Florida cases depended not on the strength of science undergirding their expert witnesses’ opinions, but rather if the case was being heard in a federal courthouse or a state courthouse.

The Court’s ruling is the end of a long battle between courts, litigants and the Florida Legislature. For more than 15 years, litigants fought in the courts to establish the Daubert standard, adopted in 1993 by the U.S. Supreme Court, for admitting expert testimony in Florida.

In 2017, the Florida Supreme Court declined to adopt the legislature’s Daubertamendment as a rule of evidence, reasoning that the rules of evidence are rules of court, which are within the area of government controlled by the judicial branch. The Legislature, reasoned the court, was confined to making substantive law, not rules of evidence.

In October 2018, the Florida Supreme Court decided in DeLisle v. Crane Co. that the Florida Legislature overstepped its authority in enacting the Daubert amendment, returning Florida to the Frye standard, which was established in the 1920s. In that decision, the Court reiterated that the adoption of Daubert or Frye as the evidentiary standard in Florida was a matter of procedure solely within the authority of the Court, and that the Daubert amendment conflicted with the Frye rule previously adopted by the Court.

The Florida Supreme Court has now reversed its February 2017 rules decision that declined to adopt the Daubert amendment as a rule of court, joining the 36 states that have rejected Frye in favor of Daubert to some extent. The Court based its latest decision on its “exclusive rulemaking authority” under the Florida Constitution. Implied in that result is that the court reversed, by rule, the decision in DeLisle.

Three Largest Consequences for Admitting Expert Testimony

For companies or individuals involved in litigation in Florida, the adoption of the Daubert standard is meaningful if their litigation requires expert testimony, and there are several consequences of this decision that should be factored into litigation.

Increased Predictability.Federal court decisions made during the last 26 years about the admissibility of expert testimony under Daubert now have considerable precedential value in guiding Florida courts. This consequence should increase predictability in the admission of expert testimony and weighing the risks and value of litigation.

Moreover, the decision to adopt the Daubert standard creates consistency between the state and federal courts with respect to the admissibility of expert testimony, as well as help lessen forum shopping.

Stronger Framework. Florida judges now have a more vigorous framework under which to decide whether to admit expert witness testimony or not.

The adoption of the Daubert standard expands the type of expert testimony subject to challenge. Whereas Frye is limited to “new or novel scientific evidence,” Daubertapplies to “all expert testimony.” Frye relied on one factor to decide whether to admit expert testimony— whether the foundation of the expert’s opinion is “generally accepted.”

Daubert case law relies on more robust factors, including whether the reasoning or methodology used by the expert witness is scientifically valid.

Appellate Evaluation. Appellate judges will have more opportunity to scrutinize trial judges’ decisions about the admission of expert witness testimony.

Appellate courts and trial courts have been constrained in evaluating expert testimony because the precedential cases under which they reviewed cases and made decisions were not only Frye-based, but also under a more lenient Fryestandard than usual because of the leanings of the Florida Supreme Court majority in the last two decades.

Now, appellate courts in Florida have a new opportunity to shape Florida law more consistently with the prevailing national standard embodied by Daubert.

Not All in Favor of Ruling

Not all are in favor of the statewide Daubert adoption. Justice Jorge Labarga, who joined in the Court’s prior decisions rejecting Daubert, filed a dissenting opinion setting out his view that “Frye is the superior standard for determining the reliability of expert testimony.”

He cited concerns that Daubert will “negatively impact constitutional rights” by precluding pure opinion testimony and usurping the jury’s role in evaluating competing expert testimony. He also cited concerns that the broader applicability of Daubert, which unlike Frye is not limited to opinions based on new or novel science, would overburden the judiciary and negatively impact access to Florida courts.

However, Justice Ricky Polston responded stating that he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees of a jury trial and access to courts.”

Failure to comply with the Daubert standard can result in exclusion of an expert’s testimony, which means it is wise for businesses, individuals and attorneys facing litigation in Florida to re-evaluate their approach to expert witness.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.