Until the state legislature decided it was time for a change, Florida followed the Frye standard for the admissibility of expert testimony. The state legislature adopted a rule governing expert evidence that parallels Rule 702 of the Federal Rules of Evidence. Widely known as the Daubert standard, that rule arguably raises the bar for the admission of expert evidence.

ExpertPages analyzed a Florida appellate opinion in 2014 that provided the state’s first in-depth discussion of how Florida trial courts are to apply the new rule. That case rejected proposed medical testimony because the expert’s opinion was not based on scientific research. The expert would have testified that a stressful employment environment caused the premature birth of the plaintiff’s baby.

About 35 states have either adopted the Daubert standard (sometimes with slight modifications) or have interpreted their existing evidentiary rules as being consistent with Daubert. The Daubert standard is widely endorsed by the business community, which regards it as a check against expert opinions that are based on “junk science” or that are unsupported by scientific research or a reliable methodology. Critics of Daubert suggest that the standard is designed to make it more difficult for plaintiffs to recover damages from businesses and insurance companies for injuries that were caused by a defendant’s negligence.

Florida Debates Daubert

The Florida Bar is considering a proposed recommendation that the Florida Supreme Court abandon the Daubert standard and return to the Frye standard. A committee of the Florida Bar that considers procedural rules and codes (including the state’s evidence code) narrowly favored the rejection of Daubert. The Bar’s Board of Governors tabled the vote at a meeting on October 16, 2015, but placed the issue on the agenda of a meeting in December.

The separation of powers doctrine arguably gives the state Supreme Court the final say over rules of evidence governing expert testimony, regardless of the state legislature’s attempt to impose the Daubert standard on the state’s judicial system. Even if the Board of Governors decides to make the recommendation, it is not clear whether the Florida Supreme Court would give the Bar’s recommendation greater weight than the legislature’s attempt to amend the evidence code.

A lawyer from the state’s largest personal injury firm argues that “Daubert only benefits rich, powerful people, and corporations or insurance companies.” Plaintiffs’ lawyers argue that Daubert increases the cost of litigation by requiring judges to hold extensive hearings before ruling on the admissibility of expert testimony. Not surprisingly, the Orlando Sentinel reports that opposition to the proposed recommendation “is coming from business groups and defense counsel.” They argue that Daubert is an essential safeguard that protects litigants from verdicts that are based on unreliable expert testimony.

Does the Standard Matter?

For all the effort that lawyers make to convince courts to adopt standards that might favor the clients they represent, it seems likely that the standard makes little difference in most cases. In the Florida case that rejected expert testimony attributing a premature birth to a stressful work environment, the trial court applied the Frye standard in rejecting the proposed expert testimony. The appellate court applied the Daubert standard and arrived at the same result.

Some have argued that the Frye standard, which admits expert evidence only if it is based on principles that are generally accepted in the scientific community, is actually more restrictive than the Daubert standard. The Daubert decision condemns Frye’s “generally accepted” standard as being too rigid. By focusing on the reliability of the expert’s methodology rather than its general acceptance, the Daubert decision may have opened the door to the admission of evidence that would have been excluded under the Frye standard.

Daubert and Supreme Court cases that followed in its wake gave trial judges substantial discretion to admit or exclude expert testimony. Most expert testimony (a DNA analysis, for example) is relatively uncontroversial and will be admitted routinely. In toxic tort and product liability cases where expert testimony is more often challenged, whether the judge will admit borderline evidence often hinges upon how the judge views expert testimony in general. Some judges are skeptical of expert testimony while other judges trust juries to decide whether experts are worthy of belief.

Florida’s struggle with the choice between Daubert and Frye may therefore be much ado about nothing. A study by Professors Cheng and Yoon concluded that basing admissibility on the Daubert standard or the Frye standard “does not make any practical difference.” Judges who are inclined to let juries evaluate expert evidence will admit expert testimony using either standard while judges who are suspicious of expert testimony are more likely to exclude it, regardless of the standard that governs their decision.