On October 15, 2018, in the matter of Richard Delisle vs. Crane Co., et al.1, the Supreme Court of Florida unequivocally reaffirmed that Frye remains the standard for the admission of expert testimony. This reaffirmation comes after the Florida Legislature amended section 90.702 to incorporate the Daubert standard into the Florida Rules of Evidence in 2013.
A little backstory may be instructive. The Frye standard gets its name from a federal court of appeals opinion in Frye v. United States2, which, in general, required expert testimony to be based on "well-recognized scientific principle or discovery."3 Accordingly, novel scientific technique that is not generally accepted by the established scientific community is inadmissible. In Florida, the Frye standard became the rule for the admission of expert testimony.4
Almost 50 years after Frye, the Federal Rules of Evidence were born, which included Rule 702. Rule 702 dealt specifically with the admission of expert testimony at trial. Years later, in its opinion in Daubert v. Merrell Dow Pharmaceuticals5 dealing with the application of Federal Rules of Evidence Rule 702, the United States Supreme Court determined that the judge is the "gatekeeper" when it comes to admissibility of expert testimony, which contradicted the Frye standard that placed the decision of admissibility with the scientific community. In 2000, Federal Rules of Evidence Rule 702 was amended to reflect the Daubert standard. Since that time, the Daubert standard, as codified in Federal Rules of Evidence Rule 702, is the standard used in all federal courts.
Florida, however, has not followed suit. In 1997, following Daubert, the Supreme Court of Florida stated that Florida will continue to apply the Frye standard in order to "guarantee the reliability of new or novel scientific evidence."6 Despite the Court's repeated affirmations, the Florida Legislature amended the Florida Rules of Evidence Rule 90.702 to incorporate the Daubert standard.
The question before the Supreme Court of Florida in Delisle concerned the constitutionality of the Florida Legislature's 2013 amendment to Florida Rules of Evidence Rule 90.702. The Court found that the amendment was unconstitutional because it concerned a procedural, not a substantive, matter, and because the amendment was in conflict with a rule of the Supreme Court of Florida.
The Court stated that Florida Rules of Evidence Rule 90.702 is not substantive because "it does not create, define, or regulate a right."7 The Court noted further that this Rule 90.702 "solely regulates the action of litigants in court proceedings,"8 thus rendering the Rule procedural. Pursuant to the Florida Constitution, the Supreme Court of Florida has the exclusive authority to "adopt rules for the practice and procedure in all courts."9 Accordingly, "[t]he Legislature may only repeal the rules of this Court by 'general law enacted by two-thirds vote of the membership of each house of the legislature.'"10 The amended Florida Rules of Evidence Rule 90.702 conflicted with the Supreme Court of Florida's earlier affirmations that Frye is the applicable procedural standard for the admission of expert testimony. The Florida Legislature failed to collect the required votes.
You may be asking yourself: "This is all fine and well, but how does this impact me?" Good question. For cases brought in Florida, and depending on the circumstances, litigants may have the option to choose between litigating in federal court or Florida state court, which will cause the expert's testimony to be scrutinized differently. This should be given serious consideration at the early stages of the litigation.
Do not hesitate to contact any member of our construction practice group if you have questions about the Richard Delisle vs. Crane Co., et al. decision or any other construction contract or litigation matter.
1 NOTICE: this opinion is not final until time expires to file rehearing motion and, if filed, determined.
2 293 F. 1013 (D.C. Cir. 1923).
3Id. At 1014.
4Seee.g. Kaminski v. State, 63 So. 2d 339, 340 (Fla. 1952); Bundy v. State, 471 So. 2d 9, 13 (Fla. 1985); Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989); and Hadden v. State, 690 So. 2d 573 (Fla. 1997).
5 509 U.S. 579 (1993).
6Brim v. State, 695 So. 2d 268 (Fla. 1997) (citing Stokes v. State, 548 So. 2d 188 (Fla. 1989)).
7Richard Delisle v. Crane Co., et al., No. SC16-2182 at 17 (Oct. 15, 2018).
9 Art. V, § 2(a), Fla. Const.
10Richard Delisle v. Crane Co., et al., No. SC16-2182 at 14(Oct. 15, 2018), quoting Art. V, § 2(a), Fla. Const.
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