Florida Reverting To Frye?

By: William P. Dilley, Esq.

On February 16, 2017, the Florida Supreme Court issued a decision rejecting the Daubert standard for introduction of expert testimony, to the extent it is “procedural.”  For years, Florida Courts followed the Frye standard for the admission of expert testimony.  Under the Frye standard, the proponent of expert testimony need only establish that the theory was “generally accepted within the expert’s field.”

Back in 2013, the legislature passed HB 7015, effectively codifying the Daubert standard by amending Florida Statute 90.702, titled “Testimony by Experts.”  The Daubert standard, intends to ensure reliability of expert testimony by placing the burden on the offering party to meet the following requirements:  A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 

As stated above, the Frye standard permits expert opinion as long as the testimony is generally accepted in the particular field.  Daubert requires the trial judge to act as a “gatekeeper” by ruling on the “reliability” of expert testimony before it can be presented to the jury.  This process often requires a “trial within a trial” before a jury is ever impaneled.  The Court “decline[d] to adoptDaubert to the extent that it is procedural, due to the constitutional concerns raised,” which include “undermining the right to a jury trial and denying access to courts.”

The Florida Supreme Court left open the question of constitutionality of Daubert until a “proper case and controversy” is before it, as well as the question of whether the application of Frye orDaubert is substantive or procedural in nature.  Until such a question is before the Court, it is unclear the effect this decision will have on Florida attorneys and their clients.