TALLAHASSEE (Legal Newsline) – The Florida Supreme Court declined the opportunity to change the standard for the admissibility of expert testimony, leaving in place a procedure favored by plaintiffs attorneys.
On Feb. 16, the court issued an opinion that left in place the Frye standard, agreeing with previous recommendations by the Florida Bar's evidence committee and board of governors.
Under the Daubert standard, a judge can dismiss
expert testimony if he or she determines the expert’s conclusions were not
supported by his or her methods of reaching their conclusion.
It is often compared to the Frye standard, which says expert testimony must be "generally accepted" by segments of the scientific community, but lets the jury, not the judge, determine the reliability of the testimony.
“If applying Daubert requires additional hurdles for a
party to present an expert's opinion, then there would be impingements upon
constitutional rights of access to court and a right to a jury trial,” attorney
Alex Cuello told Legal Newsline.
In terms of how the Florida Supreme Court sees the
Daubert Statute, Cuello stated, “As drafted, the court seem apprehensive that a
party's ability to present their case-in-chief may be obstructed through
The Florida Supreme Court issued its opinion after a
close vote from the Florida Bar’s Code and Rules of Evidence Committee, which
recommended the court not adopt the Daubert amendment. The Supreme Court voted
4-2 to adhere to the committee’s recommendation.
According to the amendment, “According to the
Committee’s report, the Committee received 81 comments in support of the
recommendation not to adopt the Daubert Amendment. The Committee received 29
comments opposing that recommendation. The Committee also received two comments
supporting the recommendation not to adopt the Same Specialty Amendment and no comments
against that recommendation. The Committee did not receive any comments addressing
its recommendation to adopt the changes to section 90.803(24) of the Evidence
The amendment also outlined the requirements of the eligibility
of an expert witness and their testimony. These include the expert’s scientific
and technical knowledge will help the judge or jury understand to evidence to
determine a fact in issue, the testimony is based on sufficient facts or data,
the testimony is the product of reliable principles and methods and the expert
has reliably applied the principles and methods to the facts of the case.
Cuello believes the court is reluctant to adopt
Daubert because it is procedural.
“However, the court may have left the door open to applying
the Daubert criteria in cross-examination of expert opinion testimony,” Cuello
The committee cited “grave constitutional concerns” if
the court adopted Daubert. Those concerns included undermining the right to a
jury trial and denying access to the court.