As foreshadowed below, the Florida legislature has finally adopted Daubert, bringing the potential for rigorous scrutiny of expert testimony to one of the nation’s largest—and, some would say, more plaintiff-friendly—jurisdictions. Judging from past experience, we can expect a series of cases testing the implications of the move, if not the move itself. Here are some questions we might see soon:
- Does Daubert even apply here? Under Marsh v. Valyou, 977 So. 2d 543, 547 (Fla. 2007), Florida’s old Frye rule arguably did not apply to some controversial testimony, even though it would have received Daubert scrutiny in Daubert courts and Frye scrutiny in most Frye courts. Litigants who benefited from that rule will no doubt seek to preserve something of its force, although they will face a major obstacle—the text of the new law itself and its legislative history make reasonably clear that all expert testimony is now potentially up for review.
- Was the change constitutional? Those opposed to the rule change may well mount a constitutional challenge. A similar effort was successful in Arizona several years ago, based on separation of powers concerns, but the victory was short lived—Daubert was simply re-adopted by a different means.
- What does Daubert require? The Florida bench and bar are going to have to learn to use some new muscles, which may take some time. Initially, there may be some cases testing what Daubert scrutiny actually requires, although the vast body of case law from federal and state courts should help in resolving these quickly.
No doubt other issues will arise. The next few years promise to be interesting as these and other questions work their way through the Florida courts, and counsel should be prepared to address them in addition to the “merits” of expert testimony.