Florida Governor Rick Scott has signed into law a piece of legislation that transforms Florida into a Daubert jurisdiction, aligning Florida courts with their federal counterparts. Florida was one of only 10 remaining hold-outs in the minority of states still applying the nearly century-old requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In its third year up for vote, the Florida legislature finally approved the legislation and teed it up for the Governor's approval.
Florida's recent expert testimony reform and amendment of Florida Statute §90.702, makes the standard of admissibility of expert testimony in Florida courts stricter and more exacting. Simply stated, the Daubert standard requires that:
a) the testimony is based on sufficient facts or data;
b) the testimony is the result of reliable principles and methods; and
c) the witness has applied the principles and methods reliably to the facts of the case.
The Daubert standard contemplates the trial court as a "gatekeeper" that independently assess the scientific validity and reliability of the reasoning, methodology and principles underlying proffered expert evidence. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under the Daubert standard, the trial court can exclude a scientific expert's opinion even if the expert had used reliable and accepted methodology if the trial court, as gatekeeper, determined the expert's conclusion(s) were unsupported by the given methodology's data. See General Electric Co. v. Joiner, 522 U.S. 136 (1997). The Daubert standard is applicable to all experts under Federal Rule of Evidence 702 and is not limited in its reach to only "scientific" experts. See Kuhmo Tires Co. v. Carmichael, 526 U.S. 137 (1999). Pure opinion testimony, which differs from offering a scientific fact, will no longer be admissible unless the opinion testimony satisfies the Daubert test.
There are several upsides to the change to Daubert. The prospect of Daubert hearings to challenge the validity of expert testimony may serve as a disincentive to some plaintiffs from bringing suit in the first place. Novel scientific expert testimony used to establish causation may likely be scrutinized to a greater degree, which in turn will prohibit the introduction of unreliable and unsupported expert testimony. A successful challenge of a plaintiff's expert witness on Daubert grounds can put a prompt and definitive end to a plaintiff's case. Verdicts predicated upon "junk science" may become less common.
Opponents of the reform contend that a shift to the more expansive Daubert standard will lead to an increase in costs, mini-trials, prolonged litigation, and parties retaining experts to testify about other experts as well as the reliability of the principles and methods. Opposing counsel will likely argue that defense counsel is merely stalling the litigation with motions challenging plaintiff's experts, there is meager precedent regarding Florida's application of Daubert, and pivot to policy concerns regarding wastedmoney, time and judicial resources involved in expert challenges.
The new law will take effect on July 1, 2013 and is not intended to apply retroactively. The inclusion of an effective date in the enacting legislation rebuts any argument that the legislature intended retroactive application. Any attempts to enforce the law in the interim period from the date the governor signs the legislation into law until the actual date of enactment for trials during that interim period will likely prove futile. Therefore, the reformed standard will apply to all cases tried on or after July 1, 2013, even if the case was filed prior to the enactment date. Moreover, for any cases retried following a favorable appellate decision after July 1, 2013, the case would likely be tried under Daubert.
The effective date and temporal application of the law will present various issues in pending litigation. Practioners and clients alike with pending state court cases will be faced with procedural conundrums and strategic considerations.
Hypothetical #1: Several, if not all, expert depositions have already been taken but trial is post-enactment. Defense counsel may want to consider opening up any expert depositions for the limited purpose of determining any unknown basis to strike on Daubert grounds. Alternatively, defense counsel may seek to propound expert interrogatories to obtain that information.
Hypothetical #2: Several, if not all, expert depositions have already been taken but trial is post-enactment. Defense counsel did not update the Frye depositions and has not yet moved to strike any experts. Under such circumstances, defense counsel may want to strike the experts under Daubert.
Hypothetical #3: Several, if not all, expert depositions have already been taken but trial is post-enactment. Defense counsel has filed Frye motions to strike experts. Defense counsel may need to amend the motions applying the Daubert standard and conduct any necessary Daubert hearings.
Hypothetical #4: Post-enactment, plaintiff seeks to amend or substitute experts given the shift to Daubert. Will the Court allow plaintiffs in cases to do so? As a result, will all discovery be reopened or extended?
All in all, here is what can reasonably be anticipated. There will be varying degrees of understanding, adaptation, and rulings from different trial court judges given their varying levels of experiences in federal court and familiarity with Daubert. Pre-trial motion practice may see an increase in the early stages of the transition. The Florida Senate expected as much. Motions for continuance will likely be more liberally granted for pending cases that are set for trial close in time to the enactment date. Court dockets may experience a temporary backlog. A 2011 study on the effects of the Daubert standard revealed a noteworthy increase in Daubert challenges to all types of experts from 2000 to 2010. The study also revealed a 49% success rate of having experts stricken in whole or in part. Members of the plaintiff's bar who are unaccustomed to litigating in federal court will be at a disadvantage.
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