PBCBA BAR BULLETINS pbcba_bulletin_january 2019 | Page 11

PERSONAL INJURY C o r n e r
DAUBERT IS DEAD
TED BABBIT
In the very recent opinion of the Florida
Supreme Court in DeLisle v. Crane, No.
SC16-2182 (FL Oct. 15, 2018), the Supreme
Court reversed the 4th District’s decision in
Crane v. DeLisle, 206 S.3rd 94 (Fla. 4th DCA
2016). The 4th District had reversed an $8M
verdict against asbestos manufacturers
relying on Fla. Statute 90.702, which
adopted the Daubert test for expert
testimony. The 4th District found the trial
court had failed to properly exercise its
gatekeeping authority as to certain of the
Plaintiff’s experts and, therefore, reversed
for a new trial.
The Supreme Court, in its opinion, found
that Florida Statute 90.702 infringed
upon the Supreme Court’s ruling making
authority because it required Courts to
use Daubert rather than the Frye standard
which has long been the standard in
Florida when determining the reliability of
expert testimony.
In Daubert v. Merrell Dow Pharmaceuticals
Inc., 509 U.S. 579 (1993), the United States
Supreme Court felt that a change in federal
evidence Rule 702 was necessary in order
to expand the admissibility of scientifically
valid and relevant evidence. At 579, the
Supreme Court held:
“General acceptance” is not a
necessary precondition to the
admissibility of scientific evidence
under the Federal Rules of
Evidence, but the Rules of Evidence
– especially Rule 702 – do assign to
the trial judge the task of ensuring
that an expert’s testimony both
rests on a reliable foundation and
is relevant to the task at hand.
Pertinent evidence based on
scientifically valid principles will
satisfy those demands.
The Florida Supreme Court in DeLisle,
supra, opined that the United States
Supreme Court, in adopting Daubert, did
so because it felt that valid evidence was
being excluded under the Frye standard.
As a practical matter, the adoption of
Daubert did not result in a more lenient
standard as Justice Pariente opined in her
concurring opinion in DeLisle.
Despite the Supreme Court’s intention that
Daubert be applied flexibly, it has been
observed that, in actuality, “[t]he gatekeeping
role bestowed upon the judiciary has
blocked more court access than it has
enabled.” Allan Kanner & M. Ryan Casey,
Daubert and the disappearing Jury Trial, 69
U. Pitt. L. Rev. 281, 283 (2007). Particularly
relevant in this case, defendants often
exploit the requirements of Daubert as a
sword against plaintiffs’ attorneys. See id.
at 283-84. Others have written that Daubert
has “produced a minefield clogged with
‘Daubert hearings’ that are more lengthy,
technical, and diffuse than anything that
preceded them.” David Crump, The Trouble
with Daubert-Kumho: Reconsidering the
Supreme Court’s Philosophy of Science, 68
MO. L. Rev. 1, 1 (2003).
Daubert has limited access to courts in two
significant ways. First, Daubert applies in
substantially more cases than Frye. As
stated previously, unlike Frye, which applies
only to testimony which is predicated on
new or novel scientific evidence, Daubert
applies to all expert testimony. Kumho, 526
U.S. at 147 (stating that Daubert “applies
to all expert testimony”). Therefore, more
litigants are exposed to the risk of exclusion
of their experts’ testimony under Daubert.
Second, in addition to expanding the areas
of expert testimony that are subject to
challenge, the Daubert analysis involves
more than just the Frye consideration of
whether “the basic underlying principles of
scientific evidence have been sufficiently
tested and accepted by the relevant
scientific community.” Brim, 695 So.2d at
272. Under Daubert, it is the trial judge who
must ensure “that an expert’s testimony
both rests on a reliable foundation and
is relevant to the task at hand.” 509 U.S.
at 597. As explained previously, this is
a multi-factor consideration. Id. at 593-
94. In other words, as the majority states,
“Frye relies on the scientific community
to determine reliability whereas Daubert
relies on the scientific savvy of trial judges
.…” Majority op. at 19. The difference as to
who makes this reliability determination
is not inconsequential, as trial judges,
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who typically do not possess the requisite
training or experience in the expert’s trial,
must fully understand the science before
they can even attempt to determine whether
it is admissible under Daubert.
In DeLisle, the Supreme Court cites to Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923):
“the thing from which the deduction is
made must be sufficiently established to
have gained general acceptance in the
particular field in which fit belongs.”
In Hadden v. State, 690 So. 2d 573 (Fla. 1997),
the Supreme Court of Florida reiterated its
reliance on the Frye standard when it said
at 578:
Novel scientific evidence must also
be shown to be reliable on some
basis other than simply that it is the
opinion of the witness who seeks to
offer the opinion. In sum, we will not
permit factual issues to be resolved
on the basis of opinions which have
yet to achieve general acceptance in
the relevant scientific community;
to do otherwise would permit
resolutions based upon evidence
which has not been demonstrated
to be sufficiently reliable and would
thereby cast doubt on the reliability
of the factual resolutions.
The difference between Frye and Daubert is
stated by the Court at page 7 as follows:
We recognize that Frye and Daubert are
competing methods for a trial judge to
determine the reliability of expert testimony
before allowing it to be admitted into
evidence. Both purport to provide a trial
judge with the tools necessary to ensure
that only reliable evidence is presented
to the jury. Frye relies on the scientific
community to determine reliability whereas
Daubert relies on the scientific savvy of trial
judges to determine on the significance of
the methodology used. With our decision
today, we affirm that Frye, not Daubert, is
the appropriate test in Florida Courts.
(con’t on pg 12)