Florida Supreme Court Rejects Daubert, Returns Florida to Frye Standard
By: Lena Mirilovic
On October 15, 2018, the Supreme Court of Florida invalidated the 2013 legislative changes to the Florida Evidence Code that adopted the modern Daubert standard for admissibility of expert testimony, returning Florida to the more lenient Frye standard. DeLisle v. Crane Co., et al., No. SC16-2182. Consistent with their positions in the February 2017 rules decision, which declined to adopt Daubert to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in DeLisle, Justices Labarga, Pariente, Lewis, and Quince formed a majority to reject the Daubert standard. Chief Justice Canady dissented, arguing that the Court lacked jurisdiction, with Justices Polston and Lawson concurring in his dissenting opinion.
The Supreme Court’s ruling ends the ongoing uncertainty in the lower courts regarding the proper standard for expert testimony after the Court declined to adopt the Daubert Amendment as a rule of court, to the extent it was procedural. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. That rules decision did not present a proper case or controversy for the Court to pass on the constitutionality of the Daubert Amendment, but set the stage for the Court’s ruling in DeLisle. In July 2017, the Supreme Court voted four to three to accept discretionary-review jurisdiction in DeLisle, giving the Court its first opportunity to directly consider the constitutionality of the Daubert Amendment. The Court heard oral argument in the case on March 6, 2018. (For additional background, see Florida Supreme Court to Rule on Constitutionality of Daubert Standard; Daubert Under the Microscope Again by Florida Courts, and Florida Supreme Court Hears Argument on Daubert Standard.)
The majority opinion, authored by Justice Quince, focuses on the central issue to determining the constitutionality of the Daubert Amendment—whether it is a substantive law properly within the purview of the legislature, or a matter of procedure instead within the authority of the Court. The Court ruled that the Daubert Amendment is procedural because it “does not create, define, or regulate a right,” and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law in conflict with a rule of the Court set out in its prior decisions. The majority opinion emphasizes that the Supreme Court has repeatedly affirmed the Frye standard despite the adoption of Daubert as the standard in federal court in 1993.
The opinion also describes Daubert as the more lenient standard—although it applies more broadly to all cases and requires the trial court to evaluate the reliability of the science underlying expert testimony—because it does not require that expert testimony be “generally accepted” in the scientific community. Justice Quince notes that Daubert was initially adopted by the United States Supreme Court because “otherwise probative and scientifically valid evidence was being excluded under the Frye standard ….”
Justice Pariente concurred in a separate opinion to express her “belief that the Daubert amendment also has the potential to unconstitutionally impair civil litigants’ right to access the courts.” She notes concerns about the impact of increased hearings on motions to exclude experts under Daubert in increasing costs to litigants, causing attorneys to turn down meritorious but lower value claims and overburdening the court system with lengthy and technical hearings. On the other hand, Justice Pariente suggests that trial courts still play an important gatekeeping function under Frye and notes that “a proper and thorough application of Frye allows the trial judge to inquire beyond bare assertions of general acceptance.”
Justice Labarga also concurred separately to address why the Court accepted jurisdiction on the basis of express and direct conflict. He states that an express and direct conflict existed because the Fourth District Court of Appeals “applied the Daubert standard, [in conflict] with earlier decision by this Court that conclude Frye is the appropriate test,” and even though the Court “expressly declined to adopt the [Daubert Amendment]” to the extent it was procedural. This reasoning suggests that future legislative changes to the Evidence Code may not be controlling law unless and until they are adopted by the Supreme Court.
In his dissenting opinion, Chief Justice Canady sharply disputes that the Court had jurisdiction to hear the case and expresses his view that the majority has committed a “very serious error” that “sets aside fundamental constitutional principles of conflict jurisdiction.” He states that the Court has “long recognized that a case decided on the basis of a statutory provision cannot be in conflict with an earlier case that pre-dated the effective date of that statutory provision.” In his view, because the Court’s prior decisions adhering to Frye do not address “the same question of law” addressed by the Fourth District Court of Appeals below, there is no express and direct conflict jurisdiction. Notably, the plaintiff did not challenge the constitutionality of the Daubert Amendment before the trial court, and the issue was first raised on appeal to the Fourth District Court of Appeal.