florida suprEME court adopts thE dauBErt aMEndMEnts
Trial & litigation Section
Chair:MorganStreetman-StreetmanLaw
the florida supreme
court has receded from
its prior decision not to
adopt the legislature’s
T
daubert amendments
to the Evidence code.
he Florida Supreme
Court, in a 5-2
decision, has receded
from its prior decision
not to adopt the Legislature’s
Daubert amendments to the Evidence
Code, and has now held that the
Daubert standard for admission of
expert testimony applies in Florida. 1
The Daubert amendments 2
revised sections 90.702 (Testimony
by experts) and 90.704 (Basis of
opinion testimony by experts),
Florida Statutes, to replace the
Frye standard with the Daubert
standard for determining the
admissibility of expert testimony.
In 2017, the Court declined to
adopt the Daubert amendments, to
the extent they are procedural, due
to “grave constitutional concerns”
raised by the Florida Bar Code and
Rules of Evidence Committee and
commenters who supported the
Committee’s recommendation that
the Court not adopt the Daubert
amendments. 3 Those concerns
included undermining the right
to a jury trial and denying access
to the courts.
In October 2018, in a 4-3
opinion, the Court found the Daubert
amendments unconstitutional,
reasoning that they infringe on the
Court’s rulemaking authority. The
Court determined that Frye, not
Daubert, remained the standard
in Florida for determining the
admissibility of expert testimony. 4
But just over seven months later,
the Court receded from its 2017
decision, and adopted the Daubert
amendments. In doing so, the
Court cited Justice Polston’s 2017
dissenting opinion in which he
observed that federal courts have
routinely applied Daubert since
1993, a “majority [of] state
jurisdictions adhere to the Daubert
standard,” and “there are 36 states
that have rejected Frye in favor
of Daubert to some extent.”
Justice Polston cited the advisory
committee’s note to the 2000
amendment to Fed. R. Evid. 702
that “[a] review of the case law
after Daubert shows that the
rejection of expert testimony is
the exception rather than the rule,”
and ultimately opined that the
“grave constitutional concerns”
regarding the Daubert standard
were “unfounded.”
However, the Court did not
decide the constitutional or other
substantive concerns raised about
the amendments, and specifically
stated that those issues must
be left for a proper case or
controversy. So while Daubert is
now the standard in Florida for
determining the admissibility of
expert testimony, further challenges
may be on the horizon. n
In re Amendments to the Florida
Evidence Code, No. SC19-107, 2019
WL 2219714 (Fla. May 23, 2019).
2 Ch. 2013-107, §§ 1 and 2, Laws of Fla.
3 In re Amendments to the Florida
Evidence Code, 210 So. 3d 1231 (Fla.
2017), superseded by In re Amendments
to the Florida Evidence Code, No. SC19-
107, 2019 WL 2219714 (Fla. May 23,
2019).
4 DeLisle v. Crane Co., et al, 258
So.3d 1219 (Fla.2018). See also Jaret J.
Fuente & Monica L. Strady, Florida
Florida Supreme Court Reaffirms that
Frye is the
Standard, HCBA
Lawyer Magazine
(Vol. 29, No. 4,
March-April
2019).
1
Author:
Jaret J. Fuente -
Carlton Fields
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