In a recent Florida Supreme Court case, a majority of the Court rejected the Daubert standard for evaluating the reliability of 
expert witness testimony. The Daubert standard is used in the Federal Court System and by a majority of states around the country. The Court’s four-to-three decision overruled the Fourth District Court of Appeals and reinstated an $8 million verdict in favor of plaintiff Richard DeLisle. The ruling is being called by some a victory for plaintiffs in Florida.
The Case
DeLisle filed a claim that both asbestos in his workplace and in filtered Kent cigarettes had led to the development of his mesothelioma. A Broward County jury awarded him $8 million as compensation for the injuries caused by the defendants.
When R.J. Reynolds Tobacco Co. and gasket maker, Crane Co. appealed, the Fourth District Court of Appeals reviewed the expert testimony provided by the plaintiff under the Daubert Standard and threw out the verdict.
DeLisle appealed that decision to the Florida Supreme Court, which reversed the appeals court and held that the Florida Legislature had overstepped its constitutional authority by passing a law that changed the procedural rules of evidence. According to the Supreme Court of Florida, the Florida Legislature had infringed upon the Court’s rulemaking authority and the 2013 law was unconstitutional.
The effect of the Court’s decision was to reinstate the Frye test for determining the reliability of an expert’s opinion. Applying the law, the Court held that the expert opinion at issue in DeLisle, which regarded the causation of his injuries, was not an opinion based on new or novel and scientific techniques. Accordingly, the trial judge was correct in allowing the jury to hear the opinion and determine what weight to give that expert opinion. The net effect was the reinstatement of the jury’s award of damages to DeLisle.
Daubert vs. Frye Standard
The 2013 law passed by the Florida Legislature was intended to overrule prior holdings of the Florida Supreme Court and require judges to apply the Daubert standard in determining the reliability of expert testimony. The Daubert standard, which is used Federal court and most other states, places the onus of determining an expert’s reliability upon the judge rather than the scientific community of that expert’s peers.
In practice, the Daubert standard requires the judge to determine whether each expert has reliably followed the scientific method in all aspects of reaching the expert’s opinion. Critics of the Daubert standard argue that this places far too much responsibility upon judges, who may lack the scientific background and knowledge to fairly evaluate whether the expert reliably applied and followed the scientific method. Critics of the Daubert standard further argue that the process of evaluating experts challenged by opposing parties can be extremely time-consuming and costly, with additional experts often needed to testify as to scientific validity. Opponents to the Daubert standard have also argued that the strategy of moving to strike expert testimony is a tactic used by defendants and their insurance carriers to make a case more difficult and more expensive for plaintiffs.
Florida has followed the Frye test, which derives from a 1923 U.S. Supreme Court decision, since 1952. The Frye test only applies to opinions that are based upon new or novel scientific techniques. For such opinions, the judge looks to whether the expert testimony is deduced from generally accepted scientific principles. If so, the testimony goes to the jury who then weighs the credibility of that opinion. If the expert’s onion is not based on generally accepted scientific principles, then that opinion is excluded as lacking sufficient reliability.
After the 2013 law was passed and prior to the recent DeLisle case, courts were unsure which standard to use. Florida Supreme Court’s decision reaffirming that Frye is the appropriate standard for evaluating expert testimony based on new or novel science, removes that uncertainty.
Any case requiring expert testimony can be extremely complicated. If you need to file a claim of negligence for issues such as personal injury or medical malpractice, you should contact an attorney as soon as possible. Your attorney will oversee critical details of your case such as securing a proper expert witness.
References:
Reports, S. A. (2018, October 16). Florida Supreme Court Rejects Leading Daubert Evidence Standard. Retrieved from https://law.com/dailybusinessreview/2018/10/16/florida-supreme-court-rejects-leading-daubert-evidence-standard/
Haber, D. (2018, October 23). The ‘Frye’ Standard Is the Law in Fla., ‘a Monumental Game Changer’. Retrieved from https://law.com/dailybusinessreview/2018/10/23/the-frye-standard-is-the-law-in-fla-a-monumental-game-changer/
