PBCBA BAR BULLETINS pbcba_bulletin_Oct. 2019 | Page 17

PERSONAL INJURY CORNER
DAUBERT IN FLORIDA
TED BABBITT
In 2017 the Florida Legislature sought to amend
the Florida Evidence Code in Chapter 2013-107,
Sec. 1, Laws of Florida, to read as follows:
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.
(1) The testimony is based upon sufficient
facts or data;
2.
3. (2) The testimony is the product of reliable
principles and methods; and
4.
5. (3) The witness has applied the principles
and methods reliably to the facts of the
case.
That amendment was designed to incorporate
the holding of the United States Supreme
Court in Daubert v. Merrell Dow Pharm., Inc. ,
509 U.S. 579 (1993). The Florida Bar in In re
Amendments to Florida Evidence Code , 210
So. 3d 1231, 1239 (Fla. 2017) declined to adopt
the Legislature’s recommendation to amend
the Florida Evidence Code to incorporate the
Daubert principles. In In re Amendments to
Florida Evidence Code, 210 So. 3d 1231 (Fla.
2017) the Florida Supreme Court declined to
amend the Evidence Code to incorporate the
Daubert principles.
In In Re: Amendments to the Florida Evidence
Code , SC19-107, (Fla. 2019), a newly appointed
Florida Supreme Court reversed itself and
receded from the Court’s prior decision not to
adopt the Legislature’s Daubert Amendments
to the Evidence Code and decided to abandon
the standard in Frye v. United States , 293 F. 1013
(D.C. Circ. 1923).
The distinction between the Frye standard and
the Daubert standard is that Frye only applied
to expert testimony based on new or novel
scientific techniques and general acceptance
in the scientific community, whereas Daubert
provides that the trial judge is empowered to
determine the reliability of scientific testimony
or evidence and can determine that an expert
opinion is not sufficiently relevant and reliable
to be admitted. A trial judge in Daubert,
therefore, acts as a gatekeeper reviewing
scientific evidence and making a preliminary
decision as to its reliability before the jury
hears that testimony. not be made as to any particular set of facts.
Only time will tell where the parameters of a
decision on reliability rests and how arbitrary
a trial court can be in making such a decision.
The concern of the prior Supreme Court
was that by authorizing a trial judge to
determine reliability rather than allowing a
jury to make that determination, the parties
may be effectively prevented from having a
jury determination of the facts. The current
Supreme Court rejected that concern, holding
that “ Daubert did not work a ‘seachange over
federal evidence law’” and the “trial court’s
role as gatekeeper is not intended to serve
as a replacement to the adversary system,”
quoting United States v. 14.38 Acres , 180 F. 3rd
1074, 1078 (5th Cir. 1996). The current Supreme
Court points out that there are 36 States that
have rejected Frye in favor of Daubert and that
no Court has held that the Federal application
of the Daubert standard has denied parties’
rights to a jury trial and access to the Courts.
Federal Courts have held to the contrary in
Junk v. Terminix Int’l Co. , 628 F.3d 439, 450)
(8th Cir. 2010). In E.I. du Pont de Nemours
& Co. v. Robinson , 923 S.W.2d 549, 558 (Tex.
1995). The Texas Court rejected a claim that
allowing a trial judge to assess the reliability
of expert testimony violates federal or state
constitutional rights to a jury trial. NOTE: BECAUSE A NUMBER OF PEOPLE HAVE
REQUESTED COPIES OF PAST ARTICLES, A
COMPILATION OF THESE ARTICLES IS NOW
AVAILABLE TO MEMBERS OF THE PALM
BEACH COUNTY BAR ASSOCIATION, FREE OF
CHARGE, BY CALLING [phone].
Thus, the Florida Supreme Court has adopted
the Daubert standard in Florida permitting
a judge to determine the reliability of expert
testimony rather than have that decision be
made by a jury as was the case under the Frye
standard. The Court, however, specifically
announced in this case that they were not
deciding any of the constitutional or other
substantive concerns about the amendments
adopting the Daubert standard, holding that
those issues had to be left for a proper case
or controversy. Thus, only the future will tell
whether the Daubert standard will remain as
a proper standard relating to expert testimony.
Any time the trial judge rules that scientific
evidence is not reliable enough to go to the
jury, there is a potential appeal regarding
the constitutionality and substantive basis
for making such a ruling. The Court could
hardly make that determination given that
this decision was based upon a rules case
without any factual underpinning and so the
application of the Daubert standard could
PBCBA BAR BULLETIN
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Palm Beach County
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