Florida’s evidentiary rules change the landscape of expert testimony admissibility

Florida’s evidentiary rules change the landscape of expert testimony admissibility


Matt M. Couch


You may be feeling a bit of mental whiplash if you have been following recent changes to Florida’s evidentiary rules governing the admissibility of expert opinion testimony. This area of Florida law has been unsettled since 2013, when the Florida Legislature amended Fla. Stat. § 90.702 to mirror the Federal counterpart under Fed. R. Evid. 702 and the rule’s incorporation of the U.S. Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Less than a year after the issue appeared settled when the Florida Supreme Court definitively rejected the amendments in October 2018, the Court has now reversed course with its May 23, 2019, decision and affirmative adoption of the amendments and the Daubert standard. See In re: Amendments To Fla. Evid. Code, No. SC19-107 (May 23, 2019).

The 2013 legislative amendments constituted a major shift in the admissibility standard, which previously was governed by the common law rule articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under Frye, as applied in Florida, expert opinion testimony was considered admissible unless it was based on a new or novel scientific theory or methodology, which was not “generally accepted” in the relevant scientific community. See Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007). Frye is considered a very lenient standard, and the Florida Supreme Court has stated bluntly that Frye is “inapplicable in the vast majority of cases.” Id. at 547. On the other hand, Daubert applies to all expert testimony, regardless of subject matter, and focuses on the reliability of the expert’s methodology.

Passage of the legislative amendments in 2013 was the beginning of the saga, however, not the end. Under the system of constitutional checks and balances, the Florida Supreme Court is granted exclusive rule-making authority for establishing rules of procedure. See Art. V, § 2(a) Fla. Const. Additionally, the court has traditionally adopted, to the extent they are procedural, provisions of the Evidence Code as they are enacted or amended by the Florida Legislature. Thus, unless the 2013 amendments to the Evidence Code were passed by a two-thirds supermajority of the Florida Legislature (they were not), the Florida Supreme Court was charged with adopting them to the extent they affected procedural rules of the judiciary.

In 2017, the Florida Supreme Court declined to adopt the amendments to Fla. Stat. § 90.702 to the extent they were procedural, citing “grave constitutional concerns.” In re Amendments To Fla. Evid. Code, 210 So. 3d 1231, 1238-39 (Fla. 2017). However, because that decision was not based on the merits of a litigated case, the court stopped short of affirmatively ruling that the amendments were unconstitutional. Id.

In October 2018, the Florida Supreme Court definitively held on the merits of an evidentiary ruling on appeal that the 2013 amendments were unconstitutional. See DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018). Additionally, the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida Courts.” Id. at 1229. Thus, the issue seemed settled.

On May 23, 2019, in a complete about-face, the Florida Supreme Court adopted the 2013 amendments to the Evidence Code: “We now recede from the Court’s prior decision not to adopt the Legislature’s Daubert amendments to the Evidence Code and to retain the Frye standard.” In re: Amendments To Fla. Evid. Code, No. SC19-107, at p. 4. Upon revisiting the reports submitted to the Florida Bar’s Code and Rules of Evidence Committee concerning the amendments and other information, the court concluded that the “‘grave constitutional concerns’ raised by those who oppose the amendments to the Code appear unfounded.” Id. at pp. 4-5. However, like the 2017 ruling rejecting the amendments, this most recent decision was not based on the merits of a litigated case. Thus, the amendments may still be challenged on constitutional or other substantive grounds if the appropriate case lands before the court on appeal.

About the author:  Matt Couch practices in the firm’s commercial and general litigation groups. His practice areas include transportation law, with a focus on railroad personal injury claims and regulatory compliance, employment law, and business law. He also handles corporate transactional matters, with a focus on mergers and acquisitions, corporate formation and governance, and contract review.  A native of Pensacola, Matt earned his J.D., with honors, from Cumberland School of Law in Birmingham, Alabama, in 2011. Following law school, Matt served as a law clerk to Judge Sharon L. Blackburn on the U.S. District Court, Northern District of Alabama. After his clerkship, Matt built and solidified his reputation as a skilled litigator at a large Birmingham law firm, where he represented local and national clients in a wide array of legal matters.

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