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Florida Bar Resists Changes To Expert Testimony

by | Dec 31, 2015 | Florida Bar

More than two years after the Legislature passed a law that aimed at tightening standards for expert testimony in lawsuits, the Florida Bar is pushing back. The Florida Bar of Governors which oversees all of the lawyers licensed to practice in the state of Florida are asking the Florida Supreme Court to stick with the Frye Standard, which is what Florida has had for many years. The controversy started from the 2013 legislative law which required Florida courts to use the same standard that federal courts use in determining whether expert testimony will be admitted.

The Frye Standard asks whether expert testimony is “generally accepted” in a particular scientific community. The Daubert Standard (used by federal courts) is stricter scientifically and can often require a kind of “mini-trial” even before an expert can appear in front of jurors.

The attorneys across the state were split on what standard we should have. At first, there was a majority saying Florida should keep its decades-old standard, known as the “Frye” standard, instead of going with Daubert. They argued that moving to the new standard would require costly and time-consuming hearings about expert witnesses. Whereas, the minority argued that the new federal standard (Daubert) had been used in federal courts for many years and it would lead to greater consistency, promote fairness and predictability in the legal system, and would help to eliminate forum shopping.

In 2013, the Florida Legislature was controlled by Republicans and were receptive to businesses and physician lobbyists who saw the change would make it harder to pursue lawsuits against doctors and businesses. But trial attorneys and other opponents argued that moving to the more-restrictive Daubert standard would make it harder for plaintiffs to get their day in court against deep-pocketed defendants.

Expert-witness testimony can be critical in complex civil and criminal cases. The Daubert standard includes a three-part test in determining whether expert testimony can be admitted. That test involves whether the testimony is “based upon sufficient facts or data;” whether it is the “product of reliable principles and methods;” and whether a witness has “applied the principles and methods reliably to the facts of the case.”

The state constitution “grants the Legislature authority over substance and the Florida Supreme Court authority over procedure, which the court often promulgates as ‘rules,’ ” The Florida Bar’s Committee on Rules of Evidence wrote in a memo.

It’s another point of contention whether changing the expert testimony rule is substantive or procedural. The Supreme Court may periodically consider “whether to adopt, to the extent they are procedural, the Legislature’s changes to the Evidence Code




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