Adoption of Daubert in the amendment to F.S. [section] 90.702 tightens the rules for admissibility of expert witness testimony.

• Author: Cuello, Alex
• Position: Elder Law

Nearly 20 years ago, the U.S. Supreme Court held that the admissibility of expert witness testimony under the long-standing standard of Fry e v. United States, 293 F. 1013 (D.C. Cir. 1923), was inconsistent with the Federal Rules of Evidence. (1) In the landmark case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the Court addressed four factors to consider in determining the admissibility of expert witness testimony. Shortly thereafter, a majority of states adopted the Daubert analysis. (2) Effective July 1, 2013, Florida became a Daubert state. The revision to F.S. [section] 90.702 adopts, almost verbatim, Fed. R. Evid. 702. (3) This change is procedural and applies retrospectively. (4)

F.S. [section] 90.702 now reads:

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) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

Prior to Daubert, Florida courts analyzed the admissibility of expert witness testimony under the Frye test, which required that "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." (5) If the opinion was not based on new or novel theories, its admissibility was tested under the pure opinion analysis, which is supported through the expert's own experience and training. (6)

After a variety of decisions were made utilizing the Frye standard and the pure opinion exception that developed from the same, Florida courts confirmed that if an expert's opinion eschews scientific method and relies solely on experience and training, then the opinion was admissible without being subject to any analysis, whether it be Frye or otherwise. (7) Some opined that disallowing the pure opinion exception of Frye would have eliminated the shortcomings of the standard without realizing that the instability of Frye actually promulgated those same exceptions. (8) The Florida Supreme Court had previously stated that the Daubert standard applied in federal courts was more lenient than the Frye standard. (9) However, a reading of Daubert clearly sets forth a higher standard in applying the factors utilized to test the admissibility of the expert's opinion against the factual evidence before the court.

In Daubert, the Court stated that the purpose of Rule 702 is to ensure that the expert's testimony admitted into evidence is both relevant and reliable. (10) As the gatekeeper, the trial judge considers the proffered expert's qualifications as well as the relevance and reliability of the proffered expert's testimony. (11) In applying the rule, the focus is not on the opinion of the expert; but rather, the principals and methods employed by the expert, as appropriately applied to the facts of the case, in forming an expert opinion. (12) Rule 702 is to be applied liberally and with flexibility. (13) In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Court expanded the scope of the application of the Daubert holding as applied to any qualified expert witness testimony. (14)

An individual may be competent to give expert testimony in a subject matter if qualified "by knowledge, skill, experience, training or education." (15) Other considerations on the qualification of an expert may include...