• Hold Your Horse & Carriage: Daubert Hasn't Gone Anywhere Yet
  • April 19, 2017 | Author: Armando G. Hernandez
  • Law Firm: Rumberger, Kirk & Caldwell Professional Association - Miami Office
  • “At every crossroads on the path that leads to the future, tradition has placed 10,000 men to guard the past.” - Maurice Maeterlinck

    Florida courts, lawyers and litigants have been addressing the admission of expert testimony under the Daubert standard since 2013. There have been countless appellate and state court rulings, as well as memoranda, analyzing and applying Daubert as a matter of Florida law. While everything seemed to be proceeding normally under Daubert, opponents of the Daubert Amendment resisted the change and sought a return to the days of Frye. The state of uncertainty around this area of evidentiary jurisprudence, as well as the brewing tension between Daubert and Frye, were well documented.

    After hearing oral argument and considering various briefs and comments, the Florida Supreme Court had for consideration before it the regular-cycle report of the Florida Bar’s Code and Rules of Evidence Committee. On Thursday, February 16, 2017, the Florida Supreme Court boldly pronounced it would decline to adopt the 2013 Daubert Amendment to Florida’s Evidence Code to the extent that said amendment is procedural in nature. In Re: Amendments to the Florida Evidence Code, No. SC16-181 (Fla. Feb, 16, 2017). The majority of the Court expressed “grave constitutional concerns” with the right to a fair trial and the right of access to courts. Justice Polston sternly dissented while placing emphasis on the undeniable reality that Daubert has been routinely applied by state and federal courts since 1993. “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? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not.” Id.

    The procedural versus substantive distinction is critical to the analysis and livelihood of Daubert as a matter of Florida law going forward. To the extent that the amendment is construed as strictly procedural in nature (i.e. not impacting rights, obligations, causes of actions, etc.), the Supreme Court ruled that the Florida Legislature’s amendment raises constitutional concerns which require rejection of the amendment. Whether the Daubert amendment is unconstitutional is left to be determined. The recent ruling did not address this issue head on. Not until an actual case and controversy is before the Supreme Court can that discrete and seminal issue be decided. Therefore, until then the Daubert amendment in the Florida Evidence Code remains a valid and binding law.

    The Florida Supreme Court’s decision not to adopt the Daubert Amendment has already created great confusion, which will continue, in Florida’s state courts. In the aftermath, a great deal of Florida judges and practitioners have been left pondering: What is the impact of the recent ruling?; What does this ruling really mean?; Has Florida reverted to Frye?; Is it only a matter of time before Florida reverts back to Frye?; Should courts and attorneys simply pass on issues involving the admission of expert testimony until further clarity is provided? At this stage there are certainly more questions than answers.

    In fact, anecdotal evidence confirms that in the days following the ruling many judges in South Florida had already refused to hear Daubert challenges until further clarity is provided. The recent ruling will inevitably create inordinate procedural delay until the courts put in place some definitive position or action in this regard. Plaintiff’s attorneys will likely seek to continue or stay any Daubert challenges pending a ruling on the substance of the statute. The selection of experts in future cases and the re-evaluation of experts in pending cases will surely give rise for concern. Going forward, one can reasonably expect prolonged and potentially even more costly expert depositions and/or other expert discovery due to emphasis on both the Frye and Daubert standards. Lastly, the recent ruling is a strong endorsement, if not an invitation, to opponents and/or proponents of the Daubert standard to bring an actual case and controversy before the Florida Supreme Court in order to have the constitutionality of the Daubert amendment squarely before the Court and definitively decided. Pro-Daubert, anti-Daubert, plaintiffs and defendants should all be cognizant of efforts to tee up a case for appeal.

    In the interim, we continue to wait in an awkward evidentiary limbo with one foot in the past and one foot in the future.