Florida Expert Evidence 2.0 - The Frye to Daubert Upgrade

by Cozen O'Connor
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On June 4, 2013, Florida Governor Rick Scott signed HB 70151 (renumbered as Chapter 2013-107)  into law amending Florida Statutes §§ 90.702 and 90.704 to conform with the federal evidentiary standard articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Since 1993 when it replaced the federal standard for expert testimony previously articulated in Frye v. United States, 293 F.2d 61 1013 (D.C. Cir 1923) with a new Daubert standard, the U.S. Supreme Court has continually reaffirmed and refined the Daubert standard in a series of cases. E.g. General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Seven years after judicial adoption of the Daubert standard, the standard was directly amended into federal rules of civil procedure in 2000. In a similar manner, the Florida Legislature has now followed suit, amending § 90.702 and § 90.704 in an effort to prohibit the usage of pure opinion testimony. See Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007).

The old Florida evidentiary rule provided that:

Testimony by experts. – If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

Florida Law Chapter 2013-107 amends § 90.702 to make the  application more consistent with Daubert and its progeny, thereby, subjecting pure opinion testimony to the rigorous federal requirements. Modeled after Federal Rule of Evidence 702, the new Florida state evidentiary rule now provides:

Section 90.702, Testimony by experts. – If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise if:

(1) The testimony is based on sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The expert has reliably applied the principles and methods to the facts of the case.

Florida Law Chapter 2013-107 also curtails the circumstances under which inadmissible evidence may be inferred or presented to the fact finder. The amended text (in bold) amends the rule as follows:

Section 90.704. Basis of opinion testimony by experts. – The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible in evidence may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs the prejudicial effect.

The amendment of Florida Statute §§ 90.702 and 90.704 to conform to the majority standard for judicial expert evidence brings Florida one step closer to uniformity with other states. In fact, in explaining his approval of HB 7015, Governor Scott was quoted as saying, “Florida was the only stated in the South that did not use this common sense method for determining who is an expert. By signing HB 7015 into law, we will create a fairer system for Florida families.”

To discuss any questions you may have regarding the opinion discussed in this Alert, or how it may apply to your particular circumstance, please contact Anaysa Gallardo at agallardo@cozen.com or 305.704.5953.

1 HB 7015 substituted SB 1412.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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