The Daubert Expert Standard: A Primer for Florida Judges and Lawyers.

• Author: Edwards, Thomas S., Jr.

In May 2019, the Florida Supreme Court made dear that Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), is the standard for admission of expert testimony in Florida. (1) In 2013, the Florida Legislature amended the evidence statutes to adopt the Daubert standard. (2) In 2017, the Florida Supreme Court rejected the Daubert standard, insofar as it was procedural and upheld Frye (3) as the standard for admission of expert testimony. (4) In 2018, in DeLisle v. Crane Co., 258 So. 3d 1219, 1223 (Fla. 2018), reh'g denied, SC16-2182, 2018 WL 6433137 (Fla. Dec, 6,2018), the legislature's amendment to F,S. [section]90,702 was declared an unconstitutional infringement of the court's oversight of the procedural rules of evidence. In 2019, the court reversed course and adopted Daubert as a procedural rule. (5)

History of Frye and Daubert

Daubert and Frye are two distinct trial court standards for deciding the reliability of expert testimony for admission. Both standards require the testimony to be relevant to issues in the case, assist the trier of fact, and the expert must be qualified in the area of testimony.

Frye was adopted nearly 100 years ago, Frye evaluates whether the basis for the opinion "gained general acceptance in the particular field [to] which it belongs." (6) In 1993, the U.S. Supreme Court issued Daubert. Daubert involved children born with birth defects allegedly caused by the drug Bendectin. Defendant challenged the plaintiffs expert's opinion on grounds that it failed the "general acceptance" standard. There were no published studies that connected birth defects to Bendectin. (7) The district court granted summary judgment for defendant. The Ninth Circuit affirmed.

On appeal, the Supreme Court held that Federal Rule of Evidence 702 no longer used the "general acceptance" test. Instead, Rule 702 was meant to be flexible and broader than the Frye standard. The Court decided the trial court judge must focus on the principles and methodologies used by the expert and not on conclusions. (8) "General acceptance" was but one of multiple factors the court may analyze in deciding whether expert evidence is reliable. Daubert concluded that Rule 702 assigns 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." (9)

In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court expanded the reach of Daubert to all expert testimony, not just scientific expert testimony.

In 2000, Fed. R. Evid. 702 was amended to codify the elements from Daubert. Rule 702 reads:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert scientific, technical or other specialized knowledge will help the tryer of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

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

(d) The expert has reliably applied the principles and methods to the facts of the case. (10)

In 2013, F.S. [section]90.702 was amended to mirror Fed. R. Evid. 702. The legislature's preamble "adopt[s] ... Daubert ... Joiner (11) ... and Kumho Tire ..." and states "... [we] intend to prohibit ... pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)." (12) In May 2019, any ambiguity as to whether Florida courts apply the Daubert standard or the Frye standard was resolved. Florida state courts now follow Daubert.

Daubert has been in use for nearly 30 years. There is a body of settled law relating to Daubert proceedings. From 2013 until DeLisle, Florida appellate courts also addressed the Daubert standard. Thus, there is an established body of commentary and criticism that addresses both strengths and weaknesses.

Standard of Review

The appellate standard of review for Daubert proceedings is usually abuse of discretion. Under Florida law, discretion in rejecting expert testimony cannot be exercised arbitrarily and requires some reasonable basis in the evidence. (13) De novo review is the appropriate standard where the trial court's Daubert determination involves questions of law, (14) when the decision is based on written evidence rather than live testimony, (15) general acceptance in the relevant community (16) and application of the Florida Evidence Code. (17)

"Under Florida law, 'exclusion of LexpertJ witness testimony is a drastic remedy that should be invoked only under the most compelling circumstances.'" (18) Under a Daubert analysis, the trial court errs if it relies on one version of disputed facts to exclude an expert's testimony. "In forming opinions, an expert is entitled to rely on any view of disputed facts the evidence will support." (19) All fact inferences must be found in favor of the nonmovant and the focus must be on whether there were sufficient facts and data. (20) A Daubert review "is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other." (21)

A Daubert Challenge Must be Timely and Sufficient

The trial court has broad discretion in deciding how to manage its gatekeeper function. (22) However, a lawyer has an obligation to raise a Daubert challenge as soon as the party is reasonably aware of the basis for it. (23) For example, Florida courts have held that absent "exceptional circumstances," an untimely Daubert motion should not be considered. (24) After filing the motion, the party moving has an obligation to advance the motion by bringing it to the court's attention and timely seeking a hearing. The failure to do so is a waiver. (25)

The party providing expert testimony bears the burden to provide a proper foundation. However, a Daubert challenge may not begin until a timely, proper, and facially sufficient motion is served. Once timely raised, "the gatekeeper must determine whether the objection was sufficient to put opposing counsel on notice so as to have the opportunity to address any perceived defect in the expert's testimony." (26)

A proper Daubert motion must identify the source, substance, and methodology of the challenged testimony. (27) The motion should be supported by conflicting expert testimony and literature. Otherwise, the court is justified in declining to hear the motion. (28) "Daubert objections must be directed to specific opinion testimony and 'state a basis for the objection beyond just stating [the party] was raising a Daubert objection, in order to allow the opposing counsel an opportunity to have the [expert] address the perceived defect in his testimony.'" (29)

Procedure for a Properly Framed Daubert Motion

If a party timely files a sufficient motion with the court, then the court has a duty to perform its gatekeeper function. (30) The court has discretion in whether a hearing is required and how to conduct any proceedings. (31) Daubert hearings are not required but may be helpful in complicated cases involving multiple expert witnesses. (32) A court should conduct a Daubert inquiry when the opposing party's motion is supported by conflicting medical literature and expert testimony. (33)

A trial judge has the discretion to conduct a paper review only, a hearing with argument, an evidentiary hearing, or defer ruling until the time of trial. In selecting the appropriate procedure, Florida law encourages the trial judge to proceed in a manner designed to "secure the just, speedy, and inexpensive determination of every action." (34)

In Florida, experts may consider inadmissible material in forming opinions. (35) In federal court, & Daubert hearing is not bound by the Rules of Evidence. (36) Presumably, Florida courts will follow the same process. The parties may provide the court with materials inadmissible to a jury, such as documents showing peer-reviewed articles, industry standards, affidavits from consulting experts, or any other relevant materials that assist the court in reaching a conclusion as to whether a proper predicate can be laid for the expert's testimony. (37)

Principles for Court Decision-Making in Daubert Hearings

The Florida Rules of Evidence approach relevant evidence with a presumption of admissibility. (38) Daubert was designed to admit testimony that was previously excluded under the narrower Frye standard. The Frye standard "[is] at odds with the liberal thrust' of the [evidence rules] and their 'general approach of relaxing the traditional barriers to opinion testimony."' (39) Florida courts recognize the Daubert standard was designed by the court to admit novel scientific evidence that Frye excluded, if reliable. (40) However, "Daubert attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading 'junk science' on the other." (41)

Neither Rule 702 nor the decisional law flowing from Daubert are intended to provide an excuse for an automatic challenge to the testimony of every expert. (42) Regardless of the method for the hearing, Florida law views exclusion of expert testimony as "a drastic remedy that should be invoked only under the most compelling circumstances,'" (43) "A review of the case law after Daubert shows that the rejection of testimony is the exception rather than the rule. Daubert did not work a sea change over ... evidence law." (44)

A precept of Daubert is that the gatekeeping function "is not intended to supplant the adversary system or the role of the jury: rigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." (45) If a trial court finds that there is insufficient evidence to support a claim, then the court may direct a judgment or grant summary judgment. (46) The...