For the last 5 years in Florida, lawyers have been having exciting water cooler debates on which evidentiary standard to use for admissibility of expert opinion. You may have heard your attorney refer to the “Frye Standard” or making a “Daubert Objection”.
But why would an evidentiary standard be any different for an expert witness than any other witness? The obvious answer is that an expert is never a party to the case, and thus lacks first person knowledge of the facts. The expert often gives “educated guesses” or (seemingly) speculates on the anticipated plan of care. For example, in workers’ compensation, a one-time change in doctor may have a completely different opinion than the original doctor. This does not make either opinion “wrong”. As long as they both adhere to the expert standard required in Court, both opinions come into evidence. The trier of fact (a jury in civil cases and the Judge of Compensation Claims in workers’ compensation) then decides which to adopt.
For almost 100 years, Florida Courts have been utilizing the Frye Standard for expert testimony. In simple terms, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), mandated that in order for the testimony of an expert to be admissible, the testimony must be based on scientific methods that are sufficiently established and accepted. Simple.
The Florida Evidence Code, used in non-federal Florida Courts adopted the wording of Frye for expert opinion and used it until 2012. Suddenly, in 2013, the Florida Legislature revised Section 90.702 of the code to reflect the federal expert standard under a 1993 case called Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, the Supreme Court of the United States opined that “more” was needed for expert testimony than what Frye originally required.
Specifically, the Daubert standard demanded the following for the admissibility of expert testimony in federal cases:
Whether the experts theory or technique can be and has been scientifically tested;
Whether the theory or technique has been subject to both peer review and publication;
The known rate of error and the potential rate of error;
The existence and maintenance of scientific controls; AND
Whether the theory or technique has attracted widespread acceptance in the relevant scientific community.
This new standard was initiated for federal courts. To stay consistent, multiple states changed their state evidentiary rules to reflect it. This is why Florida followed suit.
Then, all chaos broke loose in workers’ compensation cases. Judges and practitioners questioned whether the legislature had the power to enact such a change. Lawyers were covering their legal tracks by asking both evidentiary lines of questioning for both standards not knowing which their particular Court would adopt.
To add more confusion from a practical standpoint, the Supreme Court of Florida issued an opinion in February 2017 refusing to adopt the new standard, citing that they believed changes to the Rules of Court were a judicial, not legislative, duty. However, they did not have the jurisdiction or right case to form a constitutional opinion completely striking it.
However, on October 15, 2018, the Supreme Court of Florida got the “right case” and finally put the argument to rest. In DeLisle v. Crane Co , No. SC16-2182, the Court invalidated the 2013 legislative changes and returned to Frye standards of admissibility. In an interesting concurring opinion, Justice Pariente noted that the Daubert standard impedes access to courts, because the costs of utilizing the standard are higher. There were additional evidentiary hoops to jump through, and countless Motions to Exclude that were clogging the court system and costing litigants money.
Regardless of which standard is “better”, we now have an answer. And for better or for worse, we can go back to silence at the water cooler and back to questioning our experts in line with 100 years of Florida tradition.