By Don Hayden

In July 2013, Section 90.702 of the Florida Evidence Code, which governs the admissibility of expert testimony, was amended to adopt the same standard for admission of expert testimony used by federal courts and the majority of state courts since the US Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceutical Inc., 509 U.S. 579 (1993). Under the Daubert standard, Florida courts are now required to act as “gatekeepers” and determine whether (1) the expert testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. Previously, Florida followed what was commonly known as the Frye standard, based upon a prior federal court decision, Frye v. United States, 293 F. 1013 (D.D.C. 1923). Under this standard, absent the proffer of expert opinion based upon new or novel science, expert testimony was generally admissible with little or no opportunity to challenge the science if it could be applied to the evidence at trial. Under the Daubert standard, the courts take on a more expansive role as true gatekeeper assuring that “junk science” is not admitted and the court is charged with testing the reliability of the principles and methods, the supporting facts or data, and the proper application of the principles and methods to the facts of the case before admitting expert testimony. Since the 2013 amendment, three Florida appellate courts have found that the amendment is procedural in nature and should be applied retroactively. Earlier this month, the Fourth District in Bunin v. Matrixx Initiatives, Inc. __ So.3d__ 2016 WL 3090777 (4th DCA June 1, 2016), held that the amendment to the Evidence Code implementing the more restrictive Daubert standard should be applied retrospectively as a statute that merely relates to the admission of evidence is generally considered procedural, and therefore should be applied retroactively. It found that the trial court did not abuse its discretion in excluding the plaintiff’s expert’s causation opinion under Daubert even though the expert’s opinion would have been admissible under the “pure opinion” rule allowed under the Frye standard. The Fourth District followed the decisions of the Third District in Perez v. Bell South Communications, Inc. 138 So.3d 492 (3rd DCA 2014) and the First District in Conley v. State 129 So.3d 1120 (1st DCA 2013). In a footnote to the Bunin decision, the Fourth District carefully noted that plaintiffs had not raised the argument that the 2013 amendments violated the separation of powers doctrine by encroaching upon the Florida Supreme Court’s authority to adopt procedural rules for Florida courts citing Article V, Section 2(a) of the Florida Constitution.

That footnote comes on the heels of what proves to be an interesting debate raising separation of powers questions before the Florida Supreme Court in oral arguments scheduled for September 1st. Since mid-March of this year, both the plaintiffs’ bar and business interests have flooded the Supreme Court with commentary after the Florida Bar Board of Governors and a key Bar Committee recommended that the justices reject the Daubert standard. A key argument for overturning the 2013 amendments is that the Florida Legislature and the Governor overstepped their bounds in enacting these amendments, which at least three Florida appellate courts have found are procedural in nature. According to the Florida Constitution, only the Florida Supreme Court has the right to set the procedural rules for Florida’s judicial system. The Bar recommendations contend that only the Supreme Court, not the Legislature, has the constitutional authority to decide what expert witness standard to use, and called for the Supreme Court to direct courts to revert to the Frye standard. From the number of comments submitted, the lines have been drawn with the plaintiffs’ bar in favor of the Frye standard, and big business, insurance groups and the criminal defense bar in favor of continued application of the Daubert standard.

While this question might seem somewhat esoteric to some, it has certainly gained considerable attention by both sides of the argument, and will definitely be subject to lively debate between now and the Court’s decision on the matter following the September argument. In addition to the many arguments raised by both sides regarding the appropriateness of the respective standards for expert admissibility, and an expectation that the Florida Supreme Court will assert its exclusive role as procedural rule-maker, the arguments come close in time to the selection of the Florida Constitutional Revision Commission early next year. The commencement of that commission within a few months of the Florida Supreme Court’s expected decision may temper how the court addresses the constitutional issue before it. The Constitutional Revision Commission meets only once every twenty years and consists of delegates largely appointed by the Legislature, the Governor and the Attorney General with only three of the 37 member body appointed by the Florida Supreme Court. The commission will have the ability to propose and then directly place state constitutional amendments on the 2018 General Election ballot. The last commission in 1997-98 resulted in eight of nine proposed constitutional amendments on the ballot passing. Perhaps with this political overlay, the Florida Supreme Court will see some merit in moving to the Daubert standard followed by the federal court and most state courts for over twenty years even though first implemented by the legislative and executive branches, and thereby sidestep the separation of powers argument altogether. With the various interests noted in play, the September 1st argument before the court will certainly be one to watch.


About the Author:

Mark Migdal & Hayden is a commercial litigation law firm, based in Miami, Florida.
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