The "pure opinion" exception to the Florida Frye standard.

• Author: Mahle, Stephen E.
• Position: Business Law

The pure opinion exception (POE) to the Florida Frye standard allows a large and important class of purported expert testimony to be admitted into evidence without any scrutiny of whether it has any of the indicia of reliability articulated in any of the existing reliability tests. The pure opinion exception provides that if the expert's opinion relies only on the expert's personal experience and training, the testimony is admissible without being subject to Florida's Frye analysis. No reliability determination is required, and pure opinion is presumptively admissible. This provides a "let it all in" (1) standard for causation expert testimony that sets up a very costly battle-of-the-experts approach to expert testimony which, partly because some expert's billing rates are breaking the $1,000 dollar an hour barrier, results in an unnecessarily expensive way to resolve expert testimony issues. This approach is not only an expensive resolution; it is a bad resolution because it forces juries to sort out matters of science that science itself has been unable to decide. Finally, not only does the POE result in a lax admissibility criteria for litigation that would naturally arise in Florida, but through forum shopping, entrepreneurial lawyers and their clients are incentivized by POE to move litigation to Florida that is based on unreliable expert testimony from jurisdictions that do not admit similar expert testimony as casually as Florida.

This discussion of the pure opinion exception to the Florida Frye standard relies upon analysis of both the Frye standard and the federal court Daubert standard. Full discussion of either standard is outside the scope of this article, but several good discussions are available. (2) Only a brief summary of Daubert and Frye is needed for this article.

Chronological Summary of Frye and Daubert

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was handed down in 1923 and was largely unchallenged for generations. In 1975, the Federal Rules of Evidence became law, and in 1993, the U.S. Supreme Court said that Frye was inconsistent with the Federal Rules of Evidence and that, henceforth, admissibility of expert testimony in U.S. federal courts would be governed by the 700 Rules, primarily Rule 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). An apparent majority of states have adopted a Daubert standard, but a minority--Florida included--have rejected it.

Daubert v. Merrell Dow

The initial Daubert opinion provides a set of science-based admissibility criteria for federal court expert testimony and installs the trial judge as a "gatekeeper" charged with evaluating all proffered expert testimony and admitting only testimony that is found both relevant and reliable.

The testimony considered in Daubert was scientific, but Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), extended Daubert's general reliability holding to govern admissibility of all expert testimony proffered in federal courts. In a passage central to the instant analysis, Kumho Tire also dismissed testimony based upon the "ipse dixit" of the witness. (3) Kumho's class of ipse dixit (which translates approximately as "because I say so") testimony is similar to the class carved out in the POE, and the article considers POE in the context of ipse dixit after some preliminaries.

Post-Daubert Florida Frye

The Florida Supreme Court considered Daubert, found it wanting, and reaffirmed Florida's reliance on the Frye standard. In Brim v. State, 695 So. 2d 268 (Fla. 1997), the court wrote that "despite the federal adoption of a more lenient standard in Daubert ..., we have maintained the higher standard of reliability as dictated by Frye. " (4)

The statement on leniency in Brim is worthy of some consideration because it seems so clear that Daubert is the stricter standard. This view of relative strictness is interesting in the context of this article because the POE makes Frye much more porous. "Lenient Daubert" is supported only by a too casual reading of Daubert. It was incorrect when it was first alleged (by lawyers with some skin in the game), and it is incorrect now. A jurisdiction can have the higher standard of reliability, or it can have Frye, but it cannot have both. In fact, under Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), a jurisdiction can have a reliability standard, or it can have Frye, but it can't have both. (5)

The second interesting thing about Brim is its articulation of the pure opinion exception to the Frye standard. This exception was not widely cited at the time of Brim, but recent opinions have focused analysis on the POE.

Marsh v. Valyou and the Pure Opinion Exception to the Frye Standard

In Marsh, the Florida Supreme Court confirmed the "pure opinion" exception to the Frye standard. The pure opinion exception provides that if the expert's opinion eschews scientific method and relies only on the expert's personal experience and training, the testimony is admissible without being subject to a Frye hearing. No reliability determination is required, and pure opinion is presumptively admissible. Although the pure opinion exception is not new in Florida, it has resurfaced and is being used to admit expert testimony that has no indicia of reliability.

The Florida Supreme Court first announced that pure opinion testimony is not subject to Frye in Flanagan v. State, 625 So.2d 827, 828 (Fla. 1993):

[P]ure opinion testimony, such as an expert's opinion that a defendant is incom petent, does not have to meet Frye, because this type of testimony is based on the expert's personal experience and training. While cloaked with the credibility of the expert, this testimony is analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness. (6)

The last sentence of this quote is perhaps the crux of the problem with POE: Expert testimony, by its very nature, cannot be analyzed by the jury as it would any other witness testimony. That is the nature of expert testimony--it is expert. It conveys to the jury information that is beyond the understanding of the jury. Federal courts refer to expert testimony as being "beyond the ken of the jury." Ajury is not competent to make determinations necessary to sort out contentious and complex disputes about medical causation where experts in the relevant scientific community have been unable to agree.

Fourteen years later, the Florida Supreme Court in Marsh held that Frye does not apply to testimony of a causal link between trauma and fibromyalgia (FM) that is based merely on an expert's experience and training. In addition to...