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, PALMBEACHBAR.ORG 11 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)