Florida recently joined the federal courts and 40 other states in adopting the Daubert standard for admissibility of expert testimony. The new rule, enacted by House Bill 7015, will subject experts and their opinions to greater scrutiny before being presented to a jury.
Coincidentally, passage of House Bill 7015 came at a time when the appropriate standard for expert witness testimony was front page news. The most closely watched issue preceding the George Zimmerman murder trial was whether the court would admit the testimony of several “experts” who claimed to be able to use a small snippet of a 911 call to determine whether the voice screaming in the background belonged to Mr. Zimmerman or Trayvon Martin.
Prior to the enactment of the new rule, Florida adhered to the Frye standard. This test, which was established in Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), requires the scientific theory, procedure, or principle from which the expert’s testimony derives be “sufficiently established to have gained general acceptance in the particular field in which it belongs.” In other words, an expert’s testimony will be admissible if the methodology or technique underlying the expert’s opinion is “generally accepted” by the expert’s peers in her scientific community.
A primary concern about the Frye test is that it does not place sufficient emphasis on the qualifications of an expert or the application of the science to the facts of a particular case. As a result of this and other concerns, the federal courts and many states have abandoned the Frye test in favor of the Daubert standard.
First articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and codified in Federal Rule of Civil Procedure 702, Daubert recedes from Frye’s “general acceptance” test, and instead focuses on the reliability of the expert’s methodology and the propriety of its application in a given case. Specifically, under Daubert, the court must conduct a three part test and admit expert testimony if:
- the testimony is based upon sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the witness has applied the principles and methods reliably to the facts of the case.
HB 7015 amends section 90.702, Fla. Stat. to provide for this three part test.
Use of the Daubert standard has led to more rigorous examination of expert witness testimony. A 2002 study by RAND shows an increase in an exclusion of expert witness testimony post Daubert. And a study released by PricewaterhouseCoopers confirmed that in 2010, approximately 49 percent of expert witness challenges under Daubert were successful—in that they resulted in the striking of expert testimony in whole or in part.
Not surprisingly, the primary opponents of Florida’s switch from Frye to Daubert are plaintiffs’ attorneys—those charged with carrying the burden of proof—who are concerned that the new Daubert standard will lead to an up-tick in expert witness challenges and litigation costs. And plaintiffs’ attorneys’ concerns are justified. Florida’s new Daubert standard will equip defendants with a powerful tool to force plaintiffs to go to the time and expense of hiring experts that not only implement a sound approach, but are able to effectively defend their methodology and demonstrate its applicability to the case.
House Bill 7015 was signed by Governor Rick Scott on June 4, 2013 and becomes effective July 1, 2013.