Rumors of Daubert’s Death are Greatly Exaggerated
By Bob Schulte, Esq.
Before 2013, expert testimony in Florida was governed by the Frye standard, which required that scientific evidence be “generally accepted” in the associated scientific community before it could be presented. The Federal courts had long left this Frye test behind, using instead the Daubert standard which requires the judge to act as “gatekeeper” and evaluate several factors before admitting expert testimony. Importantly, Frye was limited to testimony with “new or novel” scientific techniques while Daubert is applied to all testimony, requiring the judge to ensure that the scientific testimony or evidence is “reliable” – regardless of its novelty. In 2013, seeking to bring the state courts in line with the federal courts and many sister states, the Florida Legislature amended the Florida evidence code to require Florida’s courts to follow the Daubert standard.
Daubert’s reign in Florida was uncertain however, with many decisions working their way up the appellate courts. A litigant whose expert was barred from testifying at trial would have grounds to appeal, and if the appellate court determined their expert was wrongly prohibited from testifying, a new trial would be in order. In 2017 the Florida Supreme court declined to adopt the 2013 Daubert amendments in In re Amendments to Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017). In 2018 it appeared Daubert’s fate was sealed when the Florida Supreme Court in a 4-3 decision in Delisle v. Crane, 258 So. 3d 1219 (Fla. 2018) ruled that the legislature’s imposition of the Daubert standard upon the courts was an unconstitutional infringement upon the Florida Supreme Court’s rule making authority.
On May 23, 2019 with new justices on the bench, the Florida Supreme Court has taken up once more the 2013 legislation under the auspices of its rule making authority and adopted the Daubert standard. The per curiam opinion explicitly recedes from the Delisle decision and adopts the 2013 amendments to the Florida Evidence Code as procedural and “to the extent they are procedural” – and has done so “effective immediately”
What does this mean for pending cases? Since the Court has adopted the amendments and specifically done so with a finding that the amendments are procedural, the 2013 Daubert amendments should be applied to all pending cases in Florida Courts as procedural law. Let the Daubert hearings (re)commence!