Frye Is Now, And Once Again, The Standard For Expert Opinion Admissibility In Florida

Author:Mr Sean McDonough and Jacqueline M. Bertelsen
Profession:Wilson Elser Moskowitz Edelman & Dicker LLP

After more than five years of uncertainty, the Florida Supreme Court's opinion in DeLisle v. Crane finally settled the debate over the standard for determining the admissibility of expert witness testimony in Florida state courts. Case No. SC16-2182 (Fla. Oct. 15, 2018). In a narrow 4-3 decision, the court rejected Daubert and adopted Frye. The outcome should come as no surprise. In 2017, in a rarely exercised move, the Florida Supreme Court declined to adopt the legislature's 2013 revisions to the Florida Evidence Code codifying Daubert.

Prior to 1993, the Frye standard for admitting expert testimony was the prevailing standard for guiding federal and state courts in their consideration as to whether scientific expert testimony should be admitted at trial. Frye v. United States1. The Frye standard requires that the proponent of the evidence establish the general acceptance of the underlying scientific principle and the testing procedures. Notably, Frye only applies to new or novel scientific evidence. However, in 1993, following a revision to the Federal Evidence Code by Congress, the Supreme Court of the United States annunciated the new standard in Daubert v. Merrell Dow Pharmaceuticals, Inc.2 The Daubert inquiry was meant to be flexible and focused on scientific principles and methodology, not conclusions. The Daubert opinion emphasized that the Federal Rules of Evidence governed admissibility and suggested a series of factors a court could consider, but did not establish a test per se. Under Daubert, the admissibility of expert evidence rests squarely within the discretion of the trial court judge. In contrast to Frye, Daubert applies to all expert witness testimony. Since 1993, federal courts and most state courts adopted the Daubert standard, but not Florida.

In 2013, the Florida State Legislature attempted to join the majority of states when it passed an amendment to the Florida Evidence Code, codifying Daubert.3 However, in February 2017, the Florida Supreme Court declined to adopt the changes and cited the "grave constitutional concerns" raised by The Florida Bar's Code and Rules of Evidence Committee. The Committee expressed concerns that the amendments (1) were procedural and infringed on the Court's rulemaking authority, (2) undermined the right to a jury trial and (3) denied access to the courts. Naturally, most Plaintiffs' attorneys agreed with the High Court's decision. In their opinion, Daubert created a "power imbalance"...

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