Five years after the Florida legislature amended the state’s evidence code to incorporate the Daubert standard for admissibility of expert testimony, the Florida Supreme Court last week held the amendment unconstitutional. “With our decision today,” said the Court, “we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.” Florida now rejoins the minority of states that adhere to the “general acceptance” standard for expert testimony. Equally important for toxic tort defendants, the Court held that medical causation testimony, including the “every exposure” theory of mesothelioma causation, “is not new or novel and is not subject to Frye analysis.”
This year marks the 25th anniversary of the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. Daubert announced a new, “flexible” standard for the admissibility of scientific expert testimony, holding that the “general acceptance” test of Frye v. United States, had been displaced by the Federal Rules of Evidence. Since then, Daubert has been the test in the federal courts; its standard is now incorporated in the text of Federal Rule of Evidence 702.
But the Daubert – Frye debate has continued in the state courts. In 2016, in litigation alleging that cell phone radiation causes brain tumors, the District of Columbia finally abandoned Frye in favor of Rule 702. By legislation effective in August 2017, Missouri adopted the Daubert standard. In August of this year, the New Jersey Supreme Court required trial courts to consider the Daubert factors, but stopped short of declaring New Jersey a “Daubert jurisdiction,” declining to accept the entire body of Daubert case law. At last count, Daubert states outnumbered Frye states by a ratio of about 4:1. (Three states – Nevada, North Dakota, and Virginia – maintain their own unique standards for admissibility.) Over the years, studies have shown that Daubert leads more often than Frye to the exclusion of expert testimony, especially in favor of defendants.
Perhaps no state has grappled with the Daubert – Frye decision more than Florida. But the debate has come to an apparent end with the decision in DeLisle.
The path to the DeLisle decision was a long one, and reflected strong disagreement within the bar. After the legislature passed the so-called “Daubert Amendment” in 2013, the Florida Bar’s Code and Rules of Evidence Committee received comments on the Amendment. The comments were opposed to the Amendment by a count of 81-29. Accordingly, the Committee recommended, by a vote of 16-14, that the Supreme Court not adopt the Amendment. The Court then received comments of its own – this time 131-56 in favor of adopting Daubert. But in a February 16, 2017 per curiam order, the Court declined to adopt the Amendment, to the extent it was procedural, “due to the constitutional concerns raised, which must be left for a proper case or controversy.”
DeLisle was that “case or controversy.” The plaintiff in DeLisle alleged that he had contracted mesothelioma as a result of exposure to asbestos, both occupationally and in cigarette filters. The jury reached a verdict of $8 million in his favor. Reviewing the admission of the plaintiff’s expert testimony under Daubert, the Florida Fourth District Court of Appeal reversed, ordering a new trial for defendant R.J. Reynolds and entry of a directed verdict for defendant Crane. It held that the trial court had “failed to properly exercise its gatekeeping function” as to plaintiff’s causation experts.
The Supreme Court’s decision turned on whether the Daubert Amendment was properly characterized as substantive or procedural. The latter, it pointed out, could be enacted only by the Court itself, and repealed only by a supermajority of two thirds of each house of the legislature. Here, only the state Senate, not the House, had passed the bill by the requisite vote.
The majority opinion addressed the relative merits of Daubert and Frye only in a footnote, expressing concern that the amendment “would affect access to the courts…by imposing an additional burden on the courts.” A concurrence, however, offered a laundry list of objections to Daubert: any other approach “reflects a mistrust of the jury system”; it “has blocked more court access than it has enabled”; defendants “exploit” its requirements “as a sword against plaintiffs’ attorneys”; it applies more often than Frye”; it often requires expensive, multi-day hearings”; it increases the burdens on the parties.
Curiously, the majority described Frye as “the higher standard of reliability,” quoting its own decision in Brim v. State, yet also reaffirmed its view that “Frye is inapplicable to the vast majority of cases…” It ignored R.J. Reynolds’ argument that the DeLisle plaintiff’s expert testimony should be excluded under either standard. Without analysis and in a single paragraph, the Court held that “medical causation is not new or novel and is not subject to Frye analysis.” The Court thus effectively authorized “every exposure” testimony to reach the jury in Florida toxic tort cases without judicial screening.