The Florida Supreme Court has rejected a legislative attempt to impose the Daubert standard of expert witness admissibility on Florida courts. As ExpertPages earlier reported, the Florida Bar’s Board of Governors asked the Florida Supreme Court to set aside a legislative attempt to force the state’s judiciary to use the Daubert standard when deciding whether to admit expert testimony.

The Board of Governors narrowly sided with lawyers who represent injury victims when it asked the Court to reject Daubert. They argued that Daubert benefits corporations and other powerful defendants by restricting the evidence that might be used to prove their wrongdoing. The business and insurance community, on the other hand, contended that Daubert provides a safeguard against the use of “junk science” to sway juries.

The Legislature v. The Court

Florida courts have historically followed the Frye standard to determine the admissibility of expert testimony. As applied in Florida, the Frye standard requires trial judges to exclude expert testimony that is based on a new or novel scientific methodology unless it is grounded in principles that have gained general acceptance in the relevant scientific community.

The Florida legislature passed a law that purported to require Florida courts to follow the Daubert standard of expert witness admissibility. That standard generally requires judges to determine the reliability of expert testimony and to exclude opinions that are not based on the reliable application of a reliable methodology to sufficient facts or data.

While it is the legislature’s responsibility to make law, the Florida Supreme Court considers it the judiciary’s responsibility to craft the procedural rules that govern court proceedings. Since rules of evidence are generally regarded as procedural rules rather than substantive laws, the Florida Supreme Court has the power to decide whether evidentiary rules enacted by the legislature will be followed by the courts, at least to the extent that they are procedural.

Florida Bar Recommendation

The Florida Bar’s Code and Rules of Evidence Committee recommended that the Florida Supreme Court decline to adopt the legislatively enacted Daubert standard. The Committee’s Majority Report noted that the legislature wanted to prohibit “pure opinion testimony” in Florida courts, while Florida courts have long endorsed the admissibility of “pure opinions” from qualified experts.

Florida precedent establishes that “pure opinion testimony,” such as a doctor’s diagnosis or a psychologist’s conclusion that a defendant is not competent to stand trial, does not need to satisfy the Frye standard. “Pure expert opinions” are those that are based on training and experience and that might assist the jury even if other experts might dispute them.

Florida precedent cautions trial courts to “resist the temptation to usurp the jury’s role in evaluating the credibility of experts.” Whether conclusions drawn by experts are credible is a question for juries, not judges, to resolve. The Committee argued that a litigant’s constitutional right to trial by jury would be diminished if judges were to decide in the first instance whether an expert’s conclusions are reliable.

The Committee also raised practical objections to Daubert, noting that the standard places an unreasonable burden on courts and litigants while prompting judges to make inconsistent decisions that are based on their own preferences rather than a consistent rule of law. In the end, however, it was the constitutional concern that carried the day in the Florida Supreme Court.

Florida Supreme Court Rejects Daubert

In a brief opinion, the Florida Supreme Court noted that it typically follows a policy of adopting procedural rules that the state legislature enacts. When the Court has doubts about the constitutionality of a procedural change, however, the Court may decline to adopt it.

The Court noted that the Committee raised “grave constitutional concerns” about the impact that the Daubert rule would have on the right to a jury trial and on access to the courts. For that reason, the Court declined to adopt the legislature’s changes to Florida’s rule regarding expert witness admissibility.

The argument that the Daubert standard is unworkable, that it leads to inconsistent results, and that it increases the cost of litigation might have played a behind-the-scenes role in swaying the Florida Supreme Court. Court decisions applying Daubert have been described as “nonuniform, inconsistent, and irreconcilable.”

Constitutional concerns, on the other hand, have not prevented the federal government and the majority of states from adopting the Daubert rule. The Florida Supreme Court made no attempt to address or resolve those concerns, but merely indicated that they were sufficiently grave to warrant its rejection of the Daubert rule “to the extent it is procedural.”

Whether some or all of the Daubert standard is substantive or procedural is a question that will probably need to be resolved in a future case. It is generally recognized, however, that rules governing the admissibility of evidence are procedural since they tell courts how to conduct trials without affecting the substantive rights of litigants. It is therefore likely that the Supreme Court’s decision spells the death of Daubert in Florida, at least for the near future.