On Thursday, February 16, 2017, the Florida Supreme Court rejected the Florida Legislature’s recommendation to adopt the Daubert evidentiary standard used by federal courts and many states for the admission of expert testimony. Instead, the Court determined that Florida will continue to use the Frye evidentiary standard, which is generally favored by plaintiffs’ attorneys as it sets a much lower bar for the admission of “expert” testimony. The opinion can be found at: http://www.floridasupremecourt.org/decisions/2017/sc16-181.pdf

The Daubert standard requires that experts must have scientific, technical, or other specialized knowledge, that their opinions be based on sufficient facts or data, that the testimony be a product of reliable principles and methods, and that these principles and methods be applied to the facts of the case. The Frye standard only requires that testimony be based on “generally accepted” principles in that expert’s field of practice. This means that in most cases an “expert” can now offer testimony by stating that it is generally accepted within the field and based on their knowledge, training and experience.

The original proposal to change the evidentiary standard was approved by the Legislature in 2013 and subsequently signed into law by Gov. Rick Scott. The judiciary postponed adopting the change because the Florida Constitution states that the Legislature only controls the “substance” of court operations, while the courts have sole jurisdiction over “procedural” standards.

The Court, in a majority opinion drafted by Chief Justice Jorge Labarga as well as Justices R. Fred Lewis, Barbara Pariente and Peggy A. Quince, stated that it “decline[d] to adopt the Daubert Amendment 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.”

In their dissenting opinion, Justices Charles Canady and Ricky Polston noted that the majority of the United States follows the Daubert standard, and asked if “the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not…”