• What’s Next for Daubert in Florida?
  • June 19, 2017
  • On February 16, 2017, the Florida Supreme Court declined to adopt §90.702 “to the extent that it is procedural, due to constitutional concerns, which must be left for a proper case or controversy.” In light of this limited and specific decision, can a practitioner still raise the codified Daubert criteria of §90.702 to challenge an expert’s testimony?

    The Florida Legislature 2013 revised §90.702 Florida Statutes, which had codified the Daubert criteria for reliable expert testimony. See In Re: Amendments to the Florida Evidence Code, 42 Fla. L. Weekly S179 (Fla. Feb. 17, 2017). But the Court made its decision in the context of a “rules case” and was clear that it did not reject §90.702 outright, rather it declined to adopt to the extent that it is procedural.

    First, as a threshold issue, it should be reemphasized that the Court did not overturn §90.702 on constitutional or any other grounds. As such, the statute remains the law in Florida. See e.g. Mallory v. State, 866 So.2d 127, 128 (Fla. 4th DCA 2004) (And it should not be forgotten that Daubert is currently good law in the federal court system and 36 states.)

    Second, rules of evidence may be either substantive and within the sole province of the Legislature, or procedural and therefore the responsibility of the Supreme Court. See In re Fla. Evidence Code, 372 So.2d 1369, 1369 (Fla. 1979). The terms “procedural” and “substantive” must be defined in light of the purposes for which the dichotomy is drawn. See In re Commitment of Cartwright, 870 So. 2d 152, 160 (Fla. 2d DCA 2004). While the Court does not provide guidance on when the application of §90.702 would be considered substantive, there are many instances where Florida courts have found that rules of evidence that govern the admissibility of broad categories of evidence have generally been considered substantive. For instance, a statute providing that all relevant evidence not secured in violation of constitutional rights—even hearsay—is admissible in certain sentencing proceedings was held to be substantive. Booker v. State, 397 So. 2d 910 (Fla. 1981); Dobbert v. State, 375 So. 2d 1069 (Fla. 1979). See also State v. Maxwell, 647 So. 2d 871 (Fla. 4th DCA 1994) (amendment to capital-punishment statute that allowed the admission of victim-impact evidence in sentencing proceedings); In re Commitment of Cartwright (statute permitting introduction of hearsay evidence in civil-commitment proceedings under the Jimmy Rice Act was substantive).

    Third, the Legislature has the constitutional authority to resolve questions of fundamental policy. Such is the case here insofar as the law protects the essential rights of litigants – liberty interests, property rights, a right to fair trial, etc. by ensuring that litigants not be exposed to expert testimony that satisfies no standard of reliability. This again is consistent with established law. See Adams v. Wright, 403 So. 2d 391 (Fla. 1981) (holding that a statute establishing a mechanism for additur and remittitur in personal-injury actions arising from the operation of motor vehicles, was a “remedial statute designed to protect the substantive rights of litigants.”); Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) (upholding statute requiring plaintiffs seeking to assert claims for punitive damages to establish by evidence a reasonable basis for their claims finding it “creates a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.”). As in these cases, the requirement that expert testimony meet Daubert standards before being admitted can be deemed substantive because it protects the essential rights of litigants.

    Fourth, the legislative history for §90.702 provides strong policy reasons that reflect the legislative majority consensus that justice is best served when experts are evaluated under Daubert. Legislators were very concerned about wrongful convictions based on Frye expert evidence that is not admissible under Daubert, which wrongful convictions deprive people of their right to liberty. The legislative history is also replete with concerns about verdicts caused or magnified by improper expert testimony, the essence of which is a wrongful taking of property. The public policy dimensions of the Legislature’s adoption of the Daubert standard demonstrate that the Legislature—as the State’s policy-maker—acted within its authority, and that the Daubert standard is substantive.

    Ultimately, the Florida Supreme Court’s decision to not “adopt” §90.702 does not close the book on Daubert in Florida. While the Court indicates that it has “grave constitutional concerns” regarding Daubert, §90.702 continues to be good law in Florida. Accordingly, practitioners should remind courts that not only is the statute still constitutional, but that when examined in the context of a specific case—as the Court will do—there are strong arguments demonstrating that the statute is substantive. In addition, until the Supreme Court has resolved this issue, counsel should also make the arguments against admissibility of expert evidence using all pre-amendment challenges. At some point, the Supreme Court will clarify its position on these issues. But in the meantime, these arguments will help to preserve these issues.