iSince 2013, Florida state courts have applied the Daubert standard for the admissibility of expert testimony following the Florida Legislature’s rejection of the longstanding Frye and “pure opinion” standard. Through amendments to §§ 90.702 and 90.704, Fla. Stat., the “Daubert Amendment,” Florida joined more than two-thirds of states and the federal courts in applying the Daubert . . . or did it?
Under Florida’s Constitution, the Florida Supreme Court has the ultimate authority in adopting a given evidentiary standard. Thus, the 2013 legislative implementation of the Daubert Amendment is not final until the state’s Supreme Court gives its blessing. In February 2017, the Florida Supreme Court did anything but bless the Daubert Amendment in In re: Amendments to the Florida Evidence Code.
The Court “decline[d] to adopt the Daubert Amendment to the extent that it is procedural”, citing “grave concerns about the constitutionality of the [Daubert] amendment.” The dissent, on the other hand, criticized the characterization that there were any real constitutional issues regarding the amendment: “Has 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? . . . Of course not.”
Is Daubert dead in Florida? Not yet. Because the decision was not on the merits, the state law implementing Daubert still applies. This is good news for the defense. The emerging evidence shows that the Daubert Amendment ensured that cases in Florida courts were decided on the basis of sound science, not on the speculative testimony. See i.e., Bunin v. Matrixx Initiatives, Inc., 197 So. 3d 1109 (Fla. Dist. Ct. App. 2016). However, the full extent of the decision’s practical implications must be fleshed out in future cases, or as the Court said: “we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy.” In the meantime, practitioners must ensure that experts can still survive Daubert. At the end of the day, we know this is true: expert testimony will continue to play a vital role in product liability litigation regardless of the standard. We will continue to follow this development.
