The Florida Supreme Court has held in Delisle v. Crane Co., released on October 15, 2018, that the Florida Legislature’s attempt to adopt the Daubert standard for admission of expert testimony as part of the Florida Evidence Code, in § 90.702, Fla. Stat., is an unconstitutional infringement of the supreme court’s power to determine matters of practice and procedure. The Florida Constitution provides the Florida Supreme Court with exclusive authority to "adopt rules for the practice and procedure in all courts," which the Florida Legislature can only repeal by "general law enacted by two-thirds vote of the membership of each house of the legislature."

As pointed out in the decision, the legislative vote to amend § 90.702, Fla. Stat. to adopt the Daubert standard did not meet this requirement in the Florida House, although it did in the Florida Senate. The Delisle court has concluded that although the legislature purported to pronounce Florida public policy through its adoption of Daubert as part of the Florida Evidence Code, it could not repeal, by a simple majority vote, the procedural rule adopted by the Florida Supreme Court in its prior case law, which had adopted and reaffirmed the Frye standard for admissibility of expert testimony. Thus, in Delisle, the Florida Supreme Court again reaffirmed that Frye, not Daubert, is the appropriate test to be applied in the Florida courts.

In light of Delisle, declaring § 90.702, Fla Stat. unconstitutional, and finding the statute not to address substantive rights, the legislature’s enactment of Daubert will be deemed null and void from the outset and will no longer apply in Florida.

If you have any questions or would like to discuss the effect of the Delisle decision on your pending claims, please contact us at: info@kubickidraper.com.