Navigating Florida's Changing Daubert Tide in Business Cases.

AuthorSadowski, Erica L.

The Florida Supreme Court's opinion in In re Amendments to the Florida Evidence Code, No. SC19-107, 2019 WL 2219714, at *2-3 (Fla. May 23, 2019), changed the standard for admissibility of expert testimony in Florida. This article explores the impact of the opinion, the distinction between the former Frye standard and Daubert standard for admissibility of expert opinion testimony at trial, and the impact upon business litigation, specifically, expert testimony on lost profits.

The Convergence of Expert Testimony and the Florida Evidence Code (1)

Much like the confluence of two bodies of water, Florida's statutes governing expert testimony, F.S. [section][section]90.702 and 90.704, and the Florida Supreme Court's 2019 opinion, In re Amendments to the Florida Evidence Code, 2019 WL 2219714, at *2-3 (Fla. May 23, 2019), have blended into the application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), for the admission of expert testimony.

Before the legislature's 2013 amendments to the statutes governing expert testimony, admissibility of expert testimony in Florida was governed by [section][section]90.702 and 90.704 of the Florida Evidence Code, (2) with expert-opinion testimony based on new or novel scientific evidence subject to the Frye standard. (3) The Frye test was utilized "to guarantee the reliability of new or novel scientific evidence." (4) Pure-opinion testimony was left intact. (5) Experts could provide trial opinions based solely on their training and experience in a particular field. (6)

The Florida Legislature expressed its intent "to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)," and "to prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)." (7) The [section]90.702 amendment states it is an "[a]ct relating to expert testimony ... requiring the courts of this state to interpret and apply the principles of expert testimony in conformity with specified United States Supreme Court decisions" and "subjecting pure opinion testimony to such requirements." (8)

According to the 2013 legislative changes, Daubert controlled admissibility of all expert testimony, including pure opinion, but uncertainty still existed about the application of Daubert in Florida. (9) This changed in 2017, when the Florida Supreme Court, in In re Amendments to the Florida Evidence Code, 210 So. 3d 1231, 1237 (Fla. 2017), "declined to adopt, to the extent they are procedural, the changes to sections 90.702 and 90.704 of the Evidence Code made by the Daubert Amendment." (10) The Florida Supreme Court again reiterated its position on October 15, 2018, in DeLisle v. Crane Co, 258 So. 3d 1219, 1225 (Fla. 2018), when it reaffirmed its decision that Florida follows the Frye standard.

The court tacked the other direction in 2019, regarding the application of Daubert. On May 23, 2019, the Florida Supreme Court in In re: Amendments to the Florida Evidence Code, 2019 WL 2219714, at *2-3 (Fla. May 23, 2019), indicated that, effective upon release of the court's opinion, the court adopted the amendments to [section]90.702 as procedural rules of evidence, and the amendment to [section]90.704 to the extent it is procedural, receding from the court's prior decision not to adopt the legislature's Daubert amendments to the Evidence Code. (11) The court adopted Ch. 2013-107, [section][section]1 and 2, Laws of Fla. (Daubert amendments), to replace the Frye standard for admitting certain expert testimony with the Daubert standard. (12)

The prevailing version of [section]90.702 incorporates certain principles found in the Daubert test for admissibility of expert testimony, and allows an expert opinion "if: (1) [t]he testimony is based upon sufficient facts or data; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case." (13) The counterpart to [section]90.702, [section]90.704, which governs the basis for an expert's testimony, now includes the caveat that "[f]acts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." (14)

Frye vs. Daubert (15)

How do the Frye and Daubert standards for expert-opinion testimony in Florida differ? Significantly. "By definition, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques." (16) When an opponent raises a challenge to an expert's opinion testimony under Frye, the trial court must determine whether "the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." (17) Under a Frye analysis, "the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand." (18) "The trial judge has the sole responsibility to determine this question." (19)

Unlike a Frye analysis, which applies only to expert-opinion testimony based on new or novel scientific evidence, Daubert applies to all expert testimony. (20) The goal of the Daubert standard is to ensure expert testimony is relevant and reliable. (21) The court in Daubert set forth a nonexclusive list of factors that may be helpful to a trial court in assessing "whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue." (22) Factors a court considers in a Daubert preliminary assessment include 1) whether the theory or technique can (and has been) tested; 2) whether the theory or technique has been subjected to peer review and...

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