On October 15, 2018, the Florida Supreme Court, in a 4-3 decision, settled the long running debate about the appropriate admissibility standard for expert opinions in Florida state courts.  In a case stemming from a plaintiff who developed mesothelioma after years of exposure to asbestos, the Florida Supreme Court held that Frye, not Daubert, is the appropriate test.

​In 2013, the Florida Legislature revised the Florida Evidence Code to codify the Daubert test accepted by federal and the majority of state courts.  Before 2013, Florida courts applied the test set forth in Frye v. United States.  Under Frye,  for an expert’s testimony to be admissible, it must be based on methods that are generally accepted within the relevant scientific community.  The Daubert test, which derives its name from the 1993 United States Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, entrusts the trial judge, not the scientific community, with the gatekeeping function.  Under Daubert, a person qualified as an expert based on “knowledge, skill, experience, training, or education” is permitted to offer expert opinion if (i) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, (ii) the testimony is based on sufficient facts or data, (iii) the testimony is the product of reliable principles and methods, and (iv) the expert has reliably applied the principles and methods to the facts of the case.  

After the revision to the Florida Evidence Code in 2013, trial courts and litigants were unclear about which test applied.  In reaffirming Frye as the governing standard, the Florida Supreme Court concluded that the Florida Legislature’s adoption of Daubert through revision of the Florida Evidence Code infringed on the Court’s rulemaking authority because the change was procedural, not substantive, and therefore unconstitutional.

This ruling brings clarity to a once unsettled issue about the appropriate admissibility standard for expert witnesses.  The Daubert test is generally viewed as more stringent than Frye, and has led to the exclusion of unreliable and unsupportable expert opinions before reaching a jury.  Unless a change is made by the Florida Supreme Court, Frye will substantially reduce and alter the gatekeeping function of trial court judges, and shift the focus back onto generally accepted methods within the relevant scientific community.