Florida’s New Daubert Standard for Expert Testimony is Retroactive

By Tashia M. Small, Esq. & Amanda Ingersoll*

Recently, Florida made the transition into a Daubert jurisdiction, aligning Florida courts with their federal counterparts. Simply stated, the amendment of Florida Statute § 90.702 makes the standard of admissibility of expert testimony in Florida courts stricter and more exacting. The Daubert standard requires that:

• The testimony be based on sufficient facts or data;
• The testimony be the result of reliable principles and methods; and
• The witness has applied the principles and methods reliably to the facts of the case.

This change raises the issue of whether Florida’s adoption of the Daubert standard is a substantive law or a procedural law. A substantive law is related to duties and rights, while a procedural law concerns the means and methods by which an individual applies and enforces duties and rights. Substantive laws are rules and regulations that create, define and regulate rights or, generally speaking, laws that the courts have been established to administer. State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969); Adams v. Wright, 403 So. 2d 391, 393-394 (Fla. 1981).

On the other hand, procedural law encompasses the course, manner, means or process through or by which an individual enforces his or her substantive rights or receives redress for invasion of those rights. More simply stated, practice and procedure is “the machinery of the judicial process as opposed to the product thereof.” Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) (quoting In re Florida Rules of Criminal Procedure, 272 So. 2d 65, 66 (Fla. 1972) (Adkins, J., concurring)). Procedural laws dictate the method parties use to conduct litigation to resolve issues of substantive rights and hear parties’ corresponding defenses. Haven Fed. Sav. & Loan Ass’n, 579 So. 2d at 732 (citing Skinner v. City of Eustis, 2 So. 2d 116 (1941)).

Generally, absent any clear legislative intent to the contrary, a law is presumed to operate prospectively. Walker & La Berge, Inc. v. Halligan, 344 So. 2d 239, 241 (Fla. 1977). This well-established principle applies specifically to substantive statutes, unless the legislature expresses a clear intent that the statute is to operate retrospectively. Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994) (citing State v. Lavazzoli, 434 So. 2d 321 (Fla. 1983); Walker & Laberge, Inc. v. Halligan, 344 So. 2d 239 (Fla. 1977); Thayer v. State, 335 So. 2d 815 (Fla. 1976)). A procedural statute, however, is presumed to be applied retrospectively and to pending cases. Id. (citing City of Lakeland v. Catinella, 129 So. 2d 133 (Fla. 1961); Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979)); 48A Fla. Jur. Statutes § 110 (“Statutes which are inherently procedural, such as those affecting only measure of damages or burden of proof, may be abrogated retroactively, even in the absence of clear legislative intent, under the rule that no one has a vested right in any given mode of procedure.”).

While the U.S. Supreme Court has not ruled on whether the Daubert standard is substantive or procedural in nature, some insight may be gleaned from how the federal district courts have treated it in diversity cases. According to the Erie doctrine, when federal courts hear actions in federal courts on diversity jurisdiction, state law governs substantive issues and federal law governs procedural issues. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938). In McDowell v. Brown, 392 F.3d 1283, 1294-1295 (11th Cir. Ga. 2004), the Eleventh Circuit noted that evidential rules are based in procedure, not substance, and that, therefore, the Federal Rules of Evidence shall apply in diversity cases, not state evidentiary laws. More notably the court stated, “The admissibility of expert testimony is a matter of federal, rather than state procedure.” Id. (citing U.S. v. Roark, 753 F.2d 991 (11th Cir. 1985); Edwards v. Sears, Roebuck and Co., 512 F.2d 276 (5th Cir. 1975)).

Further, changes to the laws on the admission of evidence at trial, such as the creation of a new hearsay exception, are typically held to be procedural. See, Glending v. State, 536 So. 2d 212, 215 (Fla. 1998). Most courts apply any amendments made to the Evidence Code to trials occurring after the effective date, noting that the changes are procedural in nature. Mortimer v. State, 100 So. 3d 99, 103 (Fla. 4th DCA 2012) (quoting Alamo Rent-A-Car, Inc., 632 So. 2d at 1358 (noting “[a] procedural statute is ‘to be applied retroactively’ and is ‘to be applied to pending cases.’”)). In Mortimer, the court noted that a hearsay exception, § 90.804(2)(f), Florida Statues, was applicable in trials for crimes which occurred before the effective date of the statue because the codified exception is procedural.

Since § 90.702 does not create new rights or take vested rights away, but only operates to further a remedy or confirm rights already existing, the change is procedural and applies to pending cases. See, Jensen v. Jensen, 824 So. 2d 315, 322 (Fla. 1st DCA 2002); Florida Birth-Related Neurological Injury Compensation Ass’n v. DeMarko, 640 So. 2d 181, 182 (Fla. 1st DCA 1994). Because the statute is procedural, its application will, therefore, be retroactive.

As the only Florida state case law on point at this juncture, Florida’s First District Court of Appeal found that § 90.702 was procedural in Conley v. State, and the court’s holding indicates that effective July 1, 2013, a court shall apply the standard to any case at trial, regardless of when the cause of action accrued or the complaint was filed. 129 So. 3d 1120, 1121 (Fla. 1st DCA 2013). In Conley, the First District agreed that the trial court had erred in excluding certain scientific evidence. However, while the appeal was pending, the § 90.720 change occurred. The court reversed and remanded the case “for a new trial after the trial court has determined the admissibility of [the evidence] under the Daubert standard codified by section 90.702.” Id. (emphasis added). Therefore, according to the only appellate decision on record to date, the standard must be used in trials that occur after the effective date July 1, 2013, regardless of whether the cause of action accrued before the effective date or the case was pending at the time the statute took effect.

*Tashia is an associate in our Jacksonville, Florida office. She may be reached at tmsmall@mdwcg.com or 904.358.4230. Amanda Ingersoll is a law clerk in the Jacksonville office and is a third year law student at Florida Coastal School of Law.

Defense Digest, Vol. 20, No. 2, June 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.