In an opinion dated February 16th, the Florida Supreme Court formally stated its denial to adopt, to the extent that they are procedural, both the Daubert and the Same Specialty amendments to the Florida Evidence Code. The Court cited Committee recommendations as well as “grave constitutional concerns” as its basis of reason to reject the two. Since both provide a standard to determine whether or not an expert’s testimony is admissible in court, this decision has the potential to create some confusion and controversy over determining the criteria to challenge or exclude an expert’s opinion in a Florida courtroom.
In 2013, the Florida Legislature adopted the relatively strict and more popular (used in Federal courts and in 36 states) Daubert standard, amending Florida Evidence Code sections 90.702 and 90.704. Until that time, Florida courts had used the Frye standard, which is used in a minority of states and is generally considered more generous in terms of expert testimony admissibility. Under the Frye standard, an expert’s opinion based on a scientific principle or discovery is admissible if that principle or discovery is “generally accepted” in the relevant field of study. On the other hand, the Daubert standard presents a greater hurdle to admit expert testimony, with more specific language than Frye as well as an embedded checklist. All in all, Daubert requires trial judges to take a more hands-on role to ensure that the scientific testimony in question is not only relevant, but also reliable for the jury to consider.
In the February opinion, titled In Re: Amendments to the Florida Evidence Code, the Supreme Court did not go into detail when referencing the constitutional concerns behind its rejection of the Daubert Amendment, but did mention considerations of Daubert’s potential to undermine one’s right to a jury trial and/or deny access to the courts.
What does it mean?
In refusing to adopt the Daubert Amendment, to the extent that it is procedural, the Supreme Court in effect leaves for another day an opening for constitutional challenges relating to the admissibility of expert testimony to be brought in a proper case or controversy. This is where the above-mentioned difficulty to specify criteria comes in: for example, if, in a trial, one party objects to the admissibility of an expert’s testimony based on the Daubert standard, the other party could use the rejection of the amendment to argue that Daubert is now no longer valid to determine admissibility. In a similar manner, a party seeking to admit expert testimony could use the decision to proffer that the Frye standard is now the most fitting default test for admissibility. In any event, until cases involving the issue of the constitutionality of the Daubert Amendment are appealed to the level of the Florida Supreme Court, there seems to be no definitive answer for which standard is best on the issue of whether an expert’s scientifically-based testimony is admissible in trial.
Same Specialty Amendment
In the same opinion, the court rejected adopting the Same Specialty amendment (section 706.102 of the Florida Statutes) which would require a standard-of-care expert witness in a medical malpractice trial to specialize in the same (as opposed to just the same or similar) specialty as the health care provider against whom, or on whose behalf, the testimony is offered. The court provided the same reasons to decline this amendment as it had for Daubert, declaring it unconstitutional for its chilling effect on one’s ability to obtain an expert witness, and prejudicial to the administration of justice. In practical terms, the court makes the point that requiring an expert witness testifying on the subject of the standard of care to have not just a similar, but the same, specialty as the expert referenced in the testimony would interfere with a party’s constitutionally guaranteed access to courts and right to a jury trial. This decision to reject the Same Specialty amendment could contribute to a similar standard-related controversy in medical malpractice trials as may be caused by the rejection of Daubert. On the other hand, if the decision allows for the “same or similar specialty standard to stand, it could give parties more breathing room by providing a broader selection of eligible standard-of-care experts who can testify in a medical malpractice trial.
You can find the Florida Supreme Court opinion discussed in this post here.