What Lies Ahead As Florida Transitions To Daubert

Florida Governor Rick Scott has signed into law a piece of legislation that transforms Florida into a Daubert jurisdiction, aligning Florida courts with their federal counterparts. Florida was one of only 10 remaining hold-outs in the minority of states still applying the nearly century-old requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In its third year up for vote, the Florida legislature finally approved the legislation and teed it up for the Governor's approval.

Florida's recent expert testimony reform and amendment of Florida Statute §90.702, makes the standard of admissibility of expert testimony in Florida courts stricter and more exacting. Simply stated, the Daubert standard requires that:

a) the testimony is based on sufficient facts or data;

b) the testimony is the result of reliable principles and methods; and

c) the witness has applied the principles and methods reliably to the facts of the case.

The Daubert standard contemplates the trial court as a "gatekeeper" that independently assess the scientific validity and reliability of the reasoning, methodology and principles underlying proffered expert evidence. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under the Daubert standard, the trial court can exclude a scientific expert's opinion even if the expert had used reliable and accepted methodology if the trial court, as gatekeeper, determined the expert's conclusion(s) were unsupported by the given methodology's data. See General Electric Co. v. Joiner, 522 U.S. 136 (1997). The Daubert standard is applicable to all experts under Federal Rule of Evidence 702 and is not limited in its reach to only "scientific" experts. See Kuhmo Tires Co. v. Carmichael, 526 U.S. 137 (1999). Pure opinion testimony, which differs from offering a scientific fact, will no longer be admissible unless the opinion testimony satisfies the Daubert test.

There are several upsides to the change to Daubert. The prospect of Daubert hearings to challenge the validity of expert testimony may serve as a disincentive to some plaintiffs from bringing suit in the first place. Novel scientific expert testimony used to establish causation may likely be scrutinized to a greater degree, which in turn will prohibit the introduction of unreliable and unsupported expert testimony. A successful challenge of a plaintiff's expert witness on Daubert grounds can put a prompt and definitive end to a plaintiff's case. Verdicts...