Expert Testimony Admission Standard in Florida: An Analysis of the 2013 Transition from Frye to Daubert

By virtue of HB 7015, signed into law by Governor Rick Scott, effective July 1, 2013, Florida state courts will no longer apply the “Frye standard” (Frye v. United States, 293 F. 2d 1013 (D. C. Cir. 1923)) for determining the admissibility of expert testimony. Instead, Florida now follows Section 90.702, Florida Statutes, which incorporates the “Daubert standard” for expert witness admissibility as reflected in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), and its most notable progeny, General Electric Co. v. Joiner, 522 U. S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U. S. 137 (1999). This Blog post will examine the “Daubert standard” and discuss how it may impact litigation moving forward.

The Frye standard of admissibility is “general acceptance within the scientific community.” Frye v. U.S., 293 F. 1013, 1014 (1923). That is, expert opinion based upon scientific technique is inadmissible unless the technique is “generally accepted” as reliable within the particular field in which it belongs. Id. at 1129-1130. However, the amended Section 90.702 of the Florida Evidence Code, was changed to “pattern it after Rule 702 of the Federal Rules of Evidence . . .” for purposes of adopting the standards provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), General Electric Co. v. Joiner, 522 U. S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U. S. 137 (1999), and to no longer apply the standard in Frye v. U.S., 293 F. 1013, 1014 (1923) in Florida state courts. The statute provides:

90.702 Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

The net effect of this is to make testimony that was previously admissible as pure opinion testimony subject to the more academic Daubert analysis. Federal Rule 702 (and now Section 90.702 as well) and Daubert require trial courts to engage in three phased analysis geared toward evaluating the expert’s qualifications, the reliability of his/her methodology, and the relevance of his/her testimony. Frazier, 387 F.3d at 1260. The party seeking to qualify the expert has the burden of meeting these elements by a preponderance standard. Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). The inquiry centers on qualifications (i.e. whether the expert has requisite qualifications), reliability (i.e. whether the underlying reasoning or methodology is scientifically valid and applicable) and relevance (i.e. whether the evidence fits to the disputed facts and assist the trier of fact in reaching conclusions).

Reliability is the gatekeeper of analysis as the Daubert decision sets forth the primary reliability factors to be considered when addressing the admissibility of expert testimony. The factors were intended by the Court to be flexible. Daubert, 509 U.S. at 594-95. The factors are: 1) whether the theory has been tested? Id. at 593; 2) whether the theory has been subject to peer review? Id.; 3) whether there is a known or potential error rate? Id. at 594; 4) whether standards exist for the use of the theory or technique, and whether the expert followed those standards? Id. at 594; and 5) whether the theory is generally accepted in the scientific community? Id. This last element is an incorporation of the Frye standard. The Daubert standard seems to focus more on process than conclusions. It forces practitioners to confront how the expert supports the testimony and not necessarily the bottom line of what the opinion is. It is the standard in more states than it is not.

This increased burden of qualification can be a challenge for lawyers and judges alike. As the court is now the caretaker of admissibility, it is quite common to see more Daubert related motions seeking to attack the admissibility of certain experts. Practically speaking, in our practice, it means we’ve retained experts earlier in our cases to enable us to ensure that we are adequately identifying issues that may be subject to Daubert analysis, to identify the specific Daubert issues and deficiencies involved in the opposing expert’s report and to help to prepare for the depositions of the opponent’s experts.