Originally published by Law360, New York (July 15, 2016, 10:55 AM ET)

Three years after Gov. Rick Scott signed into law amendments to Florida Statute Sections 90.702 and 90.704, modernizing Florida to a Daubert jurisdiction and abandoning the archaic Frye standard, there remains a looming state of unsteadiness. Since July 1, 2013 (the enactment date of the Daubert amendment), there have been countless Daubert challenges, hearings, trial court orders, appeals, appellate opinions, articles, continuing legal education seminars, meetings and votes of the Florida Board of Governors, and debates all having to do with Daubert as a matter of Florida law. Will Daubert remain or will Florida revert back to Frye?

It is undisputed that Florida lawyers and judges have been — and will continue until further notice — applying Daubert. A noteworthy body of Daubert jurisprudence as a matter of Florida law has been etched out. It began with Conley v. State, in which the First District reversed and remanded for a new trial, instructing the lower court to determine the admissibility of certain evidence under Daubert. 129 So. 3d 1120, 1121 (Fla. 1st DCA Dec. 20, 2013). Then in 2014 the Third District expounded upon a thorough comparative analysis of the Frye and Daubert standards in Perez. See Perez v. Bellsouth Telecommunications, 138 So.3d 492, 497-99 (Fla. 3d DCA Apr. 23, 2014). The First District continued to pave the way in developing Florida’s Daubert jurisprudence. See Baan v. Columbia County, 180 So.3d 1127, 1132-34 (Fla. 1st DCA Dec. 8, 2015)(concluding expert testimony constituted ipse dixit or an unproven statement); Perry v. City of St. Petersburg, 171 So.3d 224, 225 (Fla. 1st DCA Aug. 7, 2015)(applying Daubert to worker’s compensation proceedings); Booker v. Sumter County Sherriff’s Office/North America Risk Services, 166 So. 3d 189, 193-94 (Fla. 1st DCA May 29, 2015)(highlighting the timeliness requirements for Daubert challenges); Giaimo v. Fla. Autosport Inc., 154 So.3d 385, 387-89 (Fla. 1st DCA Nov. 26, 2014)(emphasizing the abolition of pure opinion testimony under the Daubert amendment). The Fifth District also joined the fray and determined mental health opinion testimony should be examined under Daubert. See Andrews v. State, 181 So. 3d 526, 527-29 (Fla. 5th DCA Oct. 30, 2015)(finding the proposed opinion testimony at issue satisfactory). Most recently, the Fourth District held the Daubert amendment applied retrospectively and was procedural in nature. See Bunin v. Matrixx Initiatives Inc., 4D14-3579, (Fla. 4th DCA June 1, 2016).

There have also been significant and noteworthy trial court orders addressing Daubert. For example, a circuit court judge in Duval County entirely excluded a boating expert in a product liability case for failing to do any testing and advancing entirely unreliable opinions. See Sullivan v. BRP U.S. Inc., Case No. 16-2013-CA-569-XXXX, (Fla. Cir. Ct. July 2, 2015) (Duval County). Similarly, a Miami-Dade County circuit court judge entirely excluded an addiction expert in a tobacco litigation matter. See Wendel v. R.J. Reynolds Tobacco Co, Case No. 10-54813 CA (15) (Fla. Cir. Ct. Apr. 1, 2014)(finding the expert was unqualified to opine on nicotine addiction and the expert utilized an entirely unreliable methodology). A Hillsborough County circuit court judge was one of the first judges in Florida to address the retroactivity of the Daubert amendment, the constitutionality of the amendment under a separation of powers challenge and whether the amendment was procedural or substantive. See Gross v. Plantation Key Association, Case No. 06-CA-005879 (Fla. Cir. Ct. Sept. 13, 2013).

The aforementioned efforts may all end up being in vain. There are serious efforts to have Daubert rejected. By way of background, the Florida Supreme Court has the ultimate authority in adopting a given evidentiary standard as a matter of Florida law. The Supreme Court has not yet spoken on or addressed this issue. Hence, the present state of affairs and uncertainty about which expert standard will govern in Florida. The Florida Bar’s Code of Rules and Evidence Committee submitted a Three Year Cycle Report proposing that Sections 90.702 and 90.704 not be adopted as Rules of Evidence to the extent they are deemed procedural. The Florida Board of Governors approved the report by a wide margin of a vote. On Feb. 1, 2016, the Florida Board of Governors submitted the report to the Florida Supreme Court, recommending that the Daubert amendments be rejected. The Florida Supreme Court will hear oral arguments for and against Daubert on Sept. 1, 2016.

It would seem impractical, inefficient and nonsensical for the Supreme Court to declare the last three years of Daubert litigation and jurisprudence “as a matter of Florida law” nothing more than an exercise in futility. One would hope that the system of checks, balances and communications between the legislature and the judiciary are more carefully circumscribed and calibrated than to allow for such a preposterous result. In any event, a determinative outcome will soon bring the tension and uncertainty to a definitive end for better or for worse.