Florida Supreme Court Rejects Daubert Standard For Review Of Expert Testimony
The Florida Supreme Court recently issued an opinion rejecting the Daubert standard and holding that the Frye standard shall apply to the admissibility of expert testimony in Florida State Courts. See Delisle v. Crane Co., 2018 WL 5075302, 43 Fla. L. Weekly S459a (Fla. Oct. 15, 2018). This significant ruling does not affect Federal Courts in Florida, which have applied the Daubert standard since its adoption in 1993 by the United States Supreme Court. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
In Delisle, the Florida Supreme Court reviewed and reversed an appellate decision regarding a personal injury claim related to asbestos exposure. At trial, the defendants unsuccessfully sought to exclude the testimony of the plaintiff’s expert witnesses. On appeal, the Fourth District Court of Appeal concluded that the trial court should have applied the Daubert standard and excluded the expert testimony:
The Fourth District reviewed the admission of the testimony of the experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and found that the trial court “failed to properly exercise its gatekeeping function as to Drs. Dahlgren, Crapo, and Rasmuson.” Id. The Fourth District reversed for a new trial for R. J. Reynolds and reversed and remanded for entry of a directed verdict for Crane. Id. at 111-12. DeLisle sought review by this Court, which was granted.
Delisle, 2018 WL 5075302 *2.
The Daubert and Frye standards are significantly different. Under Frye, which was decided in 1923 by the United States Court of Appeals for the District of Columbia Circuit, the courts are to allow expert testimony that is based upon generally accepted scientific standards. Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Under Daubert and its progeny, the courts are to allow expert testimony that is based upon sufficient data and reliable principles and methods. In applying the Daubert standard, the trial court is expected to serve as a gatekeeper by excluding expert testimony that does not meet the applicable standard. The Florida Supreme Court explained:
We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.
Delisle, 2018 WL 5075302 *8.
In Delisle, the Florida Supreme Court discussed the Florida Legislature’s adoption of a statute that sought to impose the Daubert standard in Florida State Courts. The Florida Supreme Court concluded that the Legislature overstepped its constitutional bounds by adopting statutory language that infringed on the authority of the Florida Supreme Court to determine matters of practice or procedure, such as what admissibility rules should apply to expert testimony:
The Florida Legislature and the Florida Supreme Court have worked in tandem for nearly forty years to enact and maintain codified rules of evidence. This arrangement between the branches to avoid constitutional questions of separation of powers continued uninterrupted from the Evidence Code’s inception until 2000. In the instant case, we are asked to determine whether chapter 2013-107, section 1, Laws of Florida, which revised section 90.702, Florida Statutes (2015), and which we previously declined to adopt, to the extent it was procedural, infringes on this Court’s rulemaking authority. We find that it does. Therefore, we reverse the Fourth District and remand for reinstatement of the final judgment.
Delisle, 2018 WL 5075302 *2.
In a concurring opinion, one of the Justices discussed how the Daubert standard increases the costs associated with litigation by requiring plaintiffs to deal with motions challenging the admissibility of expert testimony. Such motions, when governed by the Daubert standard, frequently require complex court hearings that are time consuming and expensive:
Daubert has limited access to courts in two significant ways. First, Daubert applies in substantially more cases than Frye. As stated previously, unlike Frye, which applies only to testimony which is predicated on new or novel scientific evidence, Daubert applies to all expert testimony. Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (stating that Daubert “applies to all expert testimony”). Therefore, more litigants are exposed to the risk of exclusion of their experts’ testimony under Daubert.
Second, in addition to expanding the areas of expert testimony that are subject to challenge, the Daubert analysis involves more than just the Frye consideration of whether “the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community.” Brim, 695 So.2d at 272. Under Daubert, it is the trial judge who must ensure “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at 597, 113 S.Ct. 2786. As explained previously, this is a multi-factor consideration. Id. at 593-94, 113 S.Ct. 2786. In other words, as the majority states, “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges ….” Majority op. at 19. The difference as to who makes this reliability determination is not inconsequential, as trial judges, who typically do not possess the requisite training or experience in the expert’s field, must fully understand the science before they can even attempt to determine whether it is admissible under Daubert.
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I acknowledge that neither Frye nor Daubert is a perfect standard that will seem fair to all litigants in every proceeding. However, this Court’s case law makes clear that a proper and thorough application of Frye allows the trial judge to inquire beyond bare assertions of general acceptance. Daubert, on the other hand, has the potential to infringe on litigants’ constitutional right to access the courts. In addition to the time-consuming and potentially cost-prohibitive expense created by Daubert hearings, as well as the onerous barriers to admitting expert testimony, the jury’s role in evaluating the merits of the case may nevertheless be usurped even after the trial court has concluded that expert testimony is admissible by an appellate court’s overly burdensome application of Daubert, as evidenced by the facts of this case. Accordingly, I do not agree that Daubert is preferable to Frye.
Delisle, 2018 WL 5075302 *10, 12 (concurring opinion).
Some will say that the Florida Supreme Court, through Delisle, has settled an important issue in a way that ensures the aggrieved better access to the courts and reduces litigation time and expense. Others will say that the Florida Supreme Court has rejected the now widely-accepted Daubert standard for mostly cynical reasons: namely, to make it easier for plaintiff’s lawyers to pursue claims and to push back on the Florida Legislature for overstepping its constitutional authority in its adoption of statutory language that compelled the use of the Daubert standard. Regardless of whether one agrees or disagrees with the result or rationale expressed in Delisle, the decision fundamentally resolves the question of whether Daubert or Frye applies to the admissibility of expert testimony in the State trial courts of Florida.