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Florida Adopts the Daubert Standard Governing the Admissibility of Expert Opinion Testimony, thus Increasing the

June 5, 2013

With the stroke of its governor’s pen on June 4, 2013, Florida joined the federal courts and the growing trend in state courts in applying the standards for the admissibility of expert opinion testimony established by the Federal Rules of Evidence, as explained and applied in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This legislation amended the existing Florida Evidence Code so as to conform with the current Federal Rules of Evidence. The amended evidence code will become effective July 1, 2013, and should be applicable to all pending cases that have not yet gone to trial.

Under prior Florida law, the standard for admitting expert witness testimony was the one expressed in Frye v.United States, 293 F. 1013 (D.C. Cir. 1923). Frye was decided in 1923 and was followed for over fifty years. In what appears to be an intent by the Legislature to expand the role of the trial and appellate courts in policing the circumstances under which expert "opinions" will be admitted into evidence by expanding their "gatekeeper" role, on April 26, 2013, the Florida Senate by a 30 to 9 vote passed a bill changing the standard for admitting expert witness opinion testimony in Florida court cases to the federal court standard. Later that day, the House accepted the Senate version, House Bill 7015, by a 70-41 vote. Under the bill, the Daubert standard will become effective in Florida courts as of July 1, 2013.

The bill which Governor Scott just signed amends Florida Statutes sections 90.702 and 90.704 as follows (with newly-added language underlined and deleted language with a strike through):

Section 90.702 Testimony by Experts – If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

1. the testimony is based upon sufficient facts or data;

2. the testimony is the product of reliable principles and methods; and

3. the witness has applied the principles and methods reliably to the facts of the case; however, the opinion is admissible only if it can be applied to evidence at trial.

Section 90.704 Basis of Opinion Testimony by Experts – The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Among the commentators, it is unclear if it will ultimately make a difference whether a court applies the Daubert or the Frye standard. However, most likely, "the real contribution of the Daubert decision was not in creating a new doctrinal test, but rather in raising the overall awareness of judges—in all jurisdictions—to the problem of unreliable or "junk" science." See generally, Edward K. Cheng and Albert H. Yoon, Does Frye or Daubert Matter? 90 Va. L. Rev. 475 (2005). ter?

It is clear, however, that it was the intent of the Legislature that Florida courts should now draw upon United States Supreme Court cases on expert testimony starting with the Daubert decision, as well as the thousands upon thousands of additional federal trial and appellate court decisions issued on a near daily basis which apply the Daubert standards and the rigorous "gatekeeper" analysis in determining whether any particular opinion and the grounds supporting it have sufficiently been supported by scientific principles and a factual basis in the admissible substantive evidence. The courts of Florida will hopefully welcome this change in the law and will appropriately step into and exercise their "gatekeeping" role in carefully scrutinizing expert witness opinions. No longer should it be sufficient for an expert to simply base his or her opinion on their "experience" or on "ipse dixit" (i.e., the expert basically saying his or her opinion is valid "because I said so").



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