ThE APPlICATIon oF dAUBERT In BUSInESS lITIgATIon
Trial & Litigation Section
Chair: Morgan Streetman – Streetman Law
The criteria used to evaluate
reliability of scientific or
technical testimony is the
same for non-scientific,
I
experience-based testimony.
n May 2019, the Florida
Supreme Court adopted the
standard set forth in Daubert
for expert testimony. 1 Three
distinct, yet somewhat overlapping,
inquiries are made to determine
admissibility: (1) the qualifications
of the expert, (2) relevance of the
expert’s opinion, and (3) reliability
of the method used in forming the
opinion. In addition, the expertise
and opinion must be helpful to the
trier of fact concerning matters
beyond the understanding of an
average lay person.
In the commercial context,
litigants regularly retain experts to
provide testimony concerning
damages, to appraise and value
property, or to perform financial
calculations. Professionals who
provide expertise on these topics
are usually licensed CPAs, forensic
accountants, appraisers, or business
valuation experts. Their opinions
are generally admissible because
the methodologies used to develop
their opinions are reliable, involve
testing and empirical evaluation,
and apply standards published in
textbooks or by professional
associations or institutes.
Expert opinions are not limited
to technical expertise though.
Another type of expert opinion
often proffered in business litigation
is neither scientific nor technical.
Rather, these opinions are based on
“specialized knowledge.” A person
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HCBA LAWYER
may obtain specialized knowledge
and be qualified as an expert as a
result of his or her experience in a
field. For example, it may be helpful
to a trier of fact to learn what
constitutes standard or reasonable
practice in a given industry, and
whether the facts at issue comport
with what is reasonably standard
or customary. These opinions are
more easily susceptible to attack.
The criteria used to evaluate
reliability of scientific or technical
testimony is the same for non-
scientific, experience-based
testimony. Experts who rely on
their experience as a basis for their
expertise are required to explain
how that experience led to the
conclusion reached, why that
experience is a sufficient basis for
the opinion, and how the experience
is reliably applied to the facts of
the case. Daubert instructs that
“specialized knowledge” connotes
more than subjective belief or
unsupported speculation.
It is perfectly acceptable for a
qualified, non-technical expert to
review the facts and documents
relevant to a case, and then apply
his or her experience and expertise
against the information gleaned
to develop an opinion. But if there
is too great of an analytical gap
between the data and the opinion
offered, the opinion should be
excluded. In other words, there must
be a reliable connection between
the expertise, the data considered,
and the opinion drawn beyond
the mere ipse dixit of the expert.
Counsel should expect that any
non-technical retained expert will
be subject to a Daubert challenge.
Accordingly, it is important to
begin preparing for the challenge
at the time of engagement.
Practitioners should educate the
expert as to the legal standard for
admissibility and ensure the expert
is undertaking a reliable methodology.
Hallmarks of reliability include:
(1) reviewing the whole file, rather
than cherry-picked documents
selected by counsel; (2) interviewing
relevant witnesses or consulting
with other experts; (3) reviewing
industry publications; and (4) clearly
articulating how the expert’s expertise
informs the underlying analysis. n
In re: Amendments to the Florida
Evidence Code, 278 So. 3d 551 (Fla.
2019).
1
Author:
Brandon
Faulkner –
Holland &
Knight LLP
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