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FLORIDA COURTS NOW DIRECTED TO APPLY DAUBERT STANDARDS TO EXPERT TESTIMONY INSTEAD OF FRYE STANDARDS

July 1, 2013

On July 1, 2013, the amendments to § 90.702 and § 90.704 of the Florida Evidence Code, which govern admissibility of expert testimony, went into effect. The legislative history indicates that the intent of the amendments were to move Florida from applying the Frye standard to the Daubert standard applied in the federal courts and an increasing number of other states.

If you currently have cases pending, then you likely have already asked two questions: (1) will the new Daubert standard apply to my case; and (2) if it does apply, how might that affect the admissibility of the plaintiff’s or defendant’s expert opinion testimony? We have assessed these two issues and will be happy to provide you will the benefit of our research and analysis upon request.

As to the first question, existing Florida precedent indicates that the amendment to the Evidence Code will likely be applied to any pending case that has not yet gone to trial. This precedent indicates that changes in the Evidence Code are considered “procedural” as opposed to “substantive” statutes, and thus can be applied retrospectively.

As to the second question, although language can be found in some cases indicating that the Daubert standard is more lenient than the Frye standard, analysis of the legislative history of the amendment indicates that the legislature intended to elevate and enhance the “gatekeeper” role played by trial courts in Florida.

This history and legislative analysis clearly states that one of the primary objectives of the new expert opinion standard was to overrule the Florida Supreme Court’s holding in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), and thereby the eliminate the so-called “Pure Opinion Exception” recognized in that case. That case ruled that if the expert relied upon experience and training, the opinion escaped Frye analysis, essentially allowing experts to provide opinions that were supported by nothing more than their own opinions.

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