Colodny Fass’ Maria Elena Abate Examines the Daubert Standard on Scientific Evidence and Expert Opinion Testimony

Sep 19, 2013 | By

 

Colodny Fass Shareholder Maria Elena Abate authored the following article in the American Bar Association’s Tort Trial and Insurance Practice Newsletter:

 

Florida Courts To Employ Daubert Standard to Expert Opinion Testimony as of July 1, 2013

As of July 1, 2013, Florida courts will employ the Daubert Standard from Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) in determining whether to admit scientific evidence and expert opinion testimony during litigation.

The move comes with the enactment of HB 7015 by Florida Governor Rick Scott just one month before its effective date.  Considered to be among the Governor’s highest priorities, the intent of the change was described by his top advisors as helping to bring Florida into line with modern, more lenient federal standards and ” . . . putt(ing) an end to the forum-shopping that currently imports litigation instead of jobs into Florida.”

For nearly 90 years prior to the new law, Florida courts employed the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) to determine whether to admit expert testimony.  Under the Frye standard, the methodology or principle on which expert opinion testimony is based must be generally accepted in the field in which it belongs. 

Codified as ch. 2013-107, L.O.F., HB 7015 adopts the Daubert Standard by amending s. 90.702, F.S. to prohibit an expert witness from testifying in the form of an opinion or otherwise, including pure opinion testimony, unless: 

  • The testimony is based on sufficient facts or data;
  • The testimony is the product of reliable principles and methods; and
  • The witness has applied the principles and methods reliably to the facts of the case.

Under the Daubert test, when there is a proffer of expert testimony, the judge as a gatekeeper must make a preliminary assessment of whether the reasoning or methodology properly can be applied to the underlying facts at issue. 

The factors that may be considered in determining whether that methodology is valid are:

  • Whether the theory or technique in question can be and has been tested;
  • Whether it has been subjected to peer review and publication;
  • Its known or potential error rate;
  • The existence and maintenance of standards controlling its operation; and
  • Whether it has attracted widespread acceptance within a relevant scientific community.

In its preamble,  the bill further states that the Florida Legislature intends to adopt the standards provided in Daubert , as well as those from General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and to prohibit pure opinion testimony as provided in Marsh v. Valyou, 997 So. 2d 543 (Fla. 2007). 

HB 7015 also amends s. 90.704, F.S. to prohibit the disclosure of inadmissible facts or data to a jury by the proponent of an expert opinion or by inference unless the court determines that their probative value in assisting the jury’s evaluation of the expert’s opinion substantially outweighs their prejudicial effect.  As a result of the amendments, the effect of s. 90.704, F.S. is conformed to the effect of Federal Rule of Evidence 703.

As stated in the bill’s preamble, the Daubert standard will not be limited to only “scientific” experts.  See Kuhmo Tires Co. v. Carmichael, 526 U.S. 137 (1999).  More importantly, pure opinion testimony will no longer be admissible unless it satisfies the Daubert test.

Under Daubert,  scientific expert testimony will likely be scrutinized to a greater degree, which, in turn, will exclude unreliable and unsupported expert testimony.  Thus, the switch to the Daubert test for the admissibility of expert testimony will play a significant role in cases highly dependent on the testimony of expert witnesses, such as sinkhole litigation, construction disputes and medical malpractice claims.   However, it may also be applied to expert testimony regarding general matters such as errors and omissions, claims handling, the calculation of damages, repair or replacement costs, the severity of injuries, and delay.

During legislative debate on the bill in 2013, some state attorneys testified that changing from Frye to Daubert is expected to increase the number of pre-trial evidentiary hearings needed as litigants test the new Standard’s limits, thus adding to the already significant backlog in Florida’s court system.   Prosecutors predicted an increase in workload, saying the adoption of Daubert will become a “trial within a trial,” requiring a much larger use of expert witnesses and court hearing time.  Others worried that Daubert would would ask judges to make scientific determinations they are not qualified to make, or lead to inconsistent rulings on the admissibility of evidence.  Almost certainly, the change is expected necessitate an increase in judicial education, inasmuch as judges will be required to become more familiar with pertinent scientific principles.

But, in advocating for the change, lawmakers indicated their priority as getting decisions relating to evidence “right,” not whether how much time will be required to do so.  Federal Rule 703 was intended to allow a broader introduction of evidence into the courtroom without focusing solely on whether it was “generally accepted.”  Interestingly, however,  a 2001 Rand Study indicates that Daubert may  have had the opposite result.  Since judges are required to more closely scrutinize the scientific basis for the expert’s testimony, they appear to be applying a stricter standard to relevance, reliability and qualifications of experts than under the Frye standard.  See http://www.rand.org/content/dam/rand/pubs/monograph_reports/2005/MR1439.pdf

While Florida’s court system will have to adapt to the new playing field, the Daubert standard has applied to all Florida federal decisions since the U.S. Supreme Court rendered its decision in 1993.  Throughout the years, insurers have carefully monitored Daubert and its legal applications because of resulting inconsistencies that could adversely affect expert witness and scientific evidence standards by which claims professionals, underwriters and the insurance industry as a whole are judged.  Plaintiffs’ counsel who do not regularly litigate in federal court may see themselves at a disadvantage.

The new law does not appear to be retroactive in its application.  The new standard will apply to all cases tried on or after July 1, 2013, even if the case was filed prior to the enactment date.

In Florida’s courts, HB 7015’s Daubert’s full effects will not be known for some time to come.