From Frye to Daubert: What You Need to Know About Admitting Expert Testimony in Florida State Courts
By R. Thomas Roberts, Esq., Michael J. DeCandio, Esq. and Amanda Ingersoll*
In April 2013, the Florida legislature passed House Bill 7015, which eliminated Florida’s reliance on the Frye standard for the admission of expert testimony. Effective July 1, 2013, all Florida state courts must to adhere to the current federal standard, known as the Daubert standard. There is nothing new or novel about the Daubert standard. Indeed, the federal court system implemented it more than 20 years ago. Nonetheless, Florida practitioners, and specifically defense counsel, should embrace this evidence shift for Florida state courts because the new standard gives defense attorneys more ways in which to attack expert testimony.
The change to Florida’s expert evidence statute took effect on July 1, 2013. See, H.B. 7015, 2013 Leg., Reg. Sess. (Fla. 2013). This has left counsel who may be in the midst of discovery questioning whether deposition testimony pre-dating the new statute is subject to the Daubert standard or the Frye standard. However, the statutory change governs the admissibility of evidence at trial, not information sought during discovery. Not all evidence sought during discovery is required to be admissible at trial. Therefore, as of July 1, 2013, any trial judge in a pending case must use the Daubert standard when determining the admissibility of each expert’s testimony at trial. Whether expert deposition testimony existed prior to July 1, 2013, is irrelevant to the judge’s determination.
Background of Frye and Daubert
The Florida Supreme Court adopted the Frye standard for evaluating expert testimony in 1985. Bundy v. State, 471 So.2d 9, 18 (Fla. 1985); Stokes v. State, 548 So.2d 188, 195 (Fla. 1989); see also, Marsh v. Valyou, 977 So.2d 543, 546 (Fla. 2007). Under the Frye standard, courts, “in admitting expert testimony deduced from a well-recognized scientific principle or discovery,” must ensure that “the thing from which the deduction is made [is] sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). This standard widely became known as the “general acceptance” standard under which expert testimony, relying on novel scientific processes or techniques, was subject to a standard of review that questioned whether the technique was generally accepted in the scientific community. Marsh, 977 So.2d at 546; see also, Daubert v. Merrell Dow Pharms., 509 U.S. 579, 588 (1993).
Just as the Federal Rules of Evidence did not mention the Frye standard, Florida’s statutory framework on evidence did not require or even mention a Frye or “general acceptance” analysis. However, Florida courts continued to apply the Frye standard when evaluating whether expert testimony should make its way to a jury. Marsh, 977 So.2d at 551 (Anstead, J., specially concurring). The standard, however, was applicable to only a small amount of expert testimony because courts were only supposed to use it if an expert based his or her testimony on new or novel techniques. Because of this distinction, the test did not apply to pure opinion testimony because, usually, an expert bases his or her opinion on years of experience—not new or novel techniques. In passing House Bill 7015, the Florida legislature denounced all reliance on Frye and adopted a three-part test to be used in accordance with the current federal standard, or Daubert standard, and its progeny.
The Daubert standard and its progeny rely on a “scientific knowledge” approach to determining whether expert testimony is not only relevant, but also reliable, and, therefore, admissible as evidence. Daubert, 509 U.S. at 590. The focus of the Daubert test is solely on the “principles and methodology” used by testifying experts, “not on the conclusions that they generate.” Daubert places the trial judge in a “gatekeeper” position and requires that the judge use a combination of four considerations to address whether the theories and techniques of proposed expert testimony are reliable. Judges operating as a gatekeeper under Daubert must consider: (1) whether the theory or technique can, or has been, tested; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known or potential rate of error” for a “particular scientific technique”; and (4) whether the theory or technique is generally accepted in the relevant scientific community. However, under Daubert, these factors are ones that a court may consider. The court in Daubert minced no words in emphasizing this, noting that the inquiry is a “flexible one,” whose sole purpose is to determine the scientific validity of the testimony. Id. at 595; see also, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999).
Florida’s new expert evidence standard mirrors Federal Rule of Evidence 702 and requires a court to consider three enumerated requirements when determining whether evidence is admissible at trial. Specifically, Florida courts must now determine whether: (1) the expert’s testimony is based upon sufficient facts or data; (2) the expert’s testimony is the product of reliable principles and methods; and (3) the expert applied the foregoing principles and methods reliably to the specific facts of the case. In addition, a court must now interpret and apply these three requirements in accordance with the four-part Daubert test, which aids in analyzing whether the principles and methods used by the expert are reliable. See, Kumho Tire Co., 526 U.S. at 150.
The Florida legislature has also broadened the reach of Florida’s expert evidence standard by explicitly subjecting pure opinion testimony to its analysis. It also applies regardless of whether the technique is new-and-novel or tried-and-true. All are subject to analysis under the new standard. Further, relying upon the Daubert progeny, the new standard “applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge,” which includes “engineers and other experts who are not scientists.” Kumho Tire Co., 526 U.S. at 141.
Florida’s new expert testimony statute provides litigants with the opportunity to more thoroughly vet expert testimony. While there is much debate on whether the Frye or the Daubert standard is the more stringent standard, it is clear that the new standard will prevent decisions based upon “junk science” and lead to more credible expert testimony. In the long run, defense attorneys should welcome this new shift because, unlike the previous “general acceptance” standard that only applied to new-and-novel techniques, a hearing under the new statute offers additional opportunity to exclude more and different types of expert testimony.
* Tom Roberts and Mike DeCandio are shareholders in our Jacksonville, Florida, office. They can be reached respectively at 904.358.4215 or firstname.lastname@example.org and 904.358.4203 or email@example.com. Amanda Ingersoll is a law clerk in our Jacksonville office.
Defense Digest, Vol. 19, No. 4, December 2013
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 © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.