The Florida Supreme Court recently rejected a request for rehearing by the Code and Rules of Evidence Committee of The Florida Bar and Jacksonville attorneys Howard Coker and James Holland to reconsider whether it should adopt the Daubert standard for expert testimony admissibility.

Daubert in Florida

Florida is one of the states that until very recently followed the Frye standard for whether a court should allow an expert witness’ testimony into evidence.

Numerous business groups had lobbied for the change to the Daubert standard.  They argued that “junk science” was being allowed into cases under the Frye standard.

The Frye standard only requires that the party seeking to admit expert testimony establish the general acceptance of the underlying scientific principle and the testing procedures.

In 1993, following a revision to the Federal Evidence Code, the United States Supreme Court adopted a new standard for the admission of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc.

Daubert is considered by some to be a stricter standard for allowing expert witness testimony than Frye. Under Daubert, a trial court judge must ensure that scientific testimony or evidence admitted is not only relevant, but also reliable.

Under Daubert, a trial court judge must consider:

• Whether the theory or technique in question can be and has been tested
• Whether it has been subjected to peer review and publication
• Its known or potential error rate
• The existence and maintenance of standards controlling its operation
• Whether it has attracted widespread acceptance within a relevant scientific community

Essentially, a trial court is required to analyze not only the relevance of the expert’s opinion, but also whether the manner in which the expert arrived at her conclusion is reliable.

Federal courts and the majority of state courts have adopted the Daubert standard. Today, thirty-six states are currently using some form of Daubert instead of Frye.

As recently as 2018, the Florida Supreme Court affirmed that Frye was the appropriate standard in Florida.  In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court stated that “Frye, not Daubert, is the appropriate test in Florida.”

Requests for Rehearing

In May, after Florida governor Ron DeSantis appointed three new justices to fill vacancies, the Florida Supreme Court decided to move to the Daubert standard.

In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and stated that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible.

The court stated, “Daubert amendments remedy deficiencies of the Frye standard.” The court also noted that Daubert will create consistency across Florida’s state and federal courts and “promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

In June, the Code and Rules of Evidence Committee of The Florida Bar committee filed a motion for rehearing. The Committee argued that the Supreme Court had made the change without going through a typical process for setting rules.

The Florida Supreme Court ruled 6-1 to reject the requests for rehearing. The court did not explain its reasoning. Justice Jorge Labrga was the lone dissenting justice.