What a difference a judge makes. Or, in the case of the Florida Supreme Court, three newly appointed justices.
On October 15, 2018, the Florida Supreme Court rejected the state legislature’s adoption of the Daubert standard for expert witness testimony. The majority opinion concluded that the standard infringes the jury’s role to determine whether expert testimony is reliable.
Just seven months later, the court ruled that the “grave constitutional concerns” about Daubert’s now “appear unfounded.” What changed in the seven months since the court rejected Daubert? Did the weight of precedent compiled over a mere seven months persuade the court that it had made an incorrect decision? It usually takes years, and often decades of accumulated rulings, before a court disturbs its own precedent.
The only thing that changed is the composition of the court. The 2018 decision was authored by Justice Peggy Quince. Her opinion was joined by Justices Barbara Pariente, R. Fred Lewis, and Jorge Labarga.
Since then, Justices Quince, Pariente, and Lewis have all reached Florida’s mandatory retirement age. They have all been replaced by Gov. Ron DeSantis, creating what the Sun-Sentinel describes as “the most conservative Florida Supreme Court in decades.”
Ironically, Gov. DeSantis championed his appointments as masters of “judicial restraint” who oppose “judicial activism.” Overruling a recent precedent simply because a court wants to move Florida law in a more conservative direction is the very definition of judicial activism.
The Court’s Opinion
The court decided in 2017 that it would not adopt Daubert as part of Florida’s evidence code, notwithstanding the legislature’s desire to do so. The 2018 decision reversed a trial court ruling that applied Daubert.
The court’s newest decision claims not to “readdress” the correctness of its 2018 decision. Rather, the court’s decision reconsidered its 2017 decision not to adopt the Daubert standard.
The court decided to “revisit the outcome of the recommendation on the Daubert amendments.” The court decided that “the ‘grave constitutional concerns’ raised by those who oppose the amendments to the Code appear unfounded.”
To support that conclusion, the court quoted extensively from a dissenting opinion in the 2017 decision. As Justice Labarga noted in dissenting from the new opinion, the court acted “without further input from the Committee or the public.” The court held no new hearings and considered no new evidence. The only intervening change suggesting that the “grave constitutional concerns” identified in 2017 had suddenly become “unfounded” was the addition of three new justices who agreed with the 2017 dissent and saw an opportunity to impose their will on Florida law.
Ramifications of Adopting the Daubert Standard
Whether the Florida court’s judicial activism is wise depends on the reader’s perspective. Florida’s Frye standard has its faults, chief among them its failure to recognize that expert opinions might be well founded even if they are based on new or novel techniques that are not yet generally accepted by the scientific community. Those faults persuaded the U.S. Supreme Court to reject the Frye standard in Daubert.
The Daubert standard also has its faults, including its tendency to force judges who are unschooled in science to evaluate the reliability of scientific methodologies. There is little evidence that judges are more capable of evaluating expert testimony than jurors who might collectively have a stronger background in science than the judge. The decision has been justly criticized for diminishing the importance of juries in civil trials by substituting a judge’s opinion of expert evidence for the community’s opinion as represented by jurors whose duty is to evaluate evidence.
Business lobbyists and the insurance defense industry are the strongest proponents of Daubert because they view it as a shield against “junk science.” They tend to view any science offered by plaintiffs in toxic tort and products liability cases as “junk” if it might cause corporate defendants to lose trials.
Another view of Daubert, however, sees the decision as liberalizing the standard for admitting expert evidence by permitting expert testimony to be heard even if it is based on new or novel methods, provided those methods are reliable. Whichever interpretation of Daubert a court might adopt, it is clear that Daubert has increased the cost of litigation by encouraging Daubert motions that are advanced for strategic reasons, regardless of their merit.
The disparity in those competing views of Daubert explains why different courts have sharply divergent ideas about how Daubert should be applied. Empirical studies suggest that judges are excluding significantly more expert evidence after Daubert than before Daubert, despite the Supreme Court’s stated intent to liberalize the standard for admitting expert opinions.
To the extent that junk science was ever a serious problem in civil cases, studies suggest that judges in civil cases have become less likely to admit expert evidence that is scientifically groundless, whether or not they apply the Daubert standard. In criminal cases, however, junk forensic science remains a problem of crisis proportions. If the adoption of Daubert encourages Florida judges to be skeptical of prosecutors who use unreliable evidence in an effort to prove guilt beyond a reasonable doubt, the Florida Supreme Court’s abrupt “about face” might improve the quality of justice.