• Florida Supreme Court rejects statutory changes to §§ 90.702 and 90.704, Fla. Stat. to the extent they are procedural, apparently reverting back to Frye standard for admissibility of scientific evidence.
  • April 27, 2017 | Author: Chanel A. Mosley
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Orlando Office
  • Prior to 2013, Florida courts applied the standard set forth in Frye v. United States, which provides that new or novel scientific evidence must be generally accepted within the scientific community to be admissible. However, in 2013, the Florida Legislature amended §§ 90.702 and 90.704, Fla. Stat. of the Florida Evidence Code, which served to replace the standard for admissibility from Frye to the standard set forth in the U.S. Supreme Court case of Daubert v. Merrell Down Pharmaceuticals, Inc. Unlike Frye, the Daubert standard applies to all scientific evidence and confers upon the trial judge the role of “gatekeeper” to ensure that the evidence is not only relevant, but also reliable. The Daubert standard is widely used by a majority of states in the U.S. However, on February 16, 2017, the Florida Supreme Court rendered an opinion declining to adopt the changes to § 90.702, Fla. Stat. to the extent they are procedural. Citing grave concerns about the constitutionality of the Daubert standard, the Florida Supreme Court rejected the Legislature’s 2013 changes to the statute. However, the court did not specifically rule on the constitutionality of the statute. Thus, the effect of this opinion appears to be a return to the application of the Frye standard in Florida, although it is yet to be seen how courts will construe this opinion going forward.

    The opinion also rejected the Legislature’s 2012 changes to § 766.102(5), Fla. Stat. That statutory provision, which previously required that an expert in a medical negligence case must specialize in the same or similar specialty as the health care provider against whom the testimony is offered, was amended to remove the “similar” language and mandate that the expert be of the same specialty. In its recent opinion, the Florida Supreme Court rejected to adopt the amended legislation to the extent it is procedural, although it declined to specify whether the statutory changes are, in fact, procedural or substantive in the absence of a proper case or controversy before it.