The Florida Legislature passed House Bill 7015, dealing with expert testimony, which has been signed into law by Governor Scott. Chapter 2013-107, Laws of Florida, amends Florida’s evidence code to conform to Rule 702 of the Federal Rules of Evidence and the principles applicable in federal court under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny with respect to the admissibility of expert testimony. Under Daubert and Rule 702, the trial court acts as a “gatekeeper” to ensure that all expert testimony is only admitted when its proponent demonstrates that the testimony is both relevant and reliable. Rule 702 and the Daubert standard have become effective tools for excluding a wide variety of unreliable expert opinions in federal court. It was the legislature’s intent to overrule existing Florida Supreme Court precedent that had rejected Daubert and retained the so-called Frye-test. See, e.g., Marsh v. Valyou, 977 So. 2d 543, 547 (Fla. 2007); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The new law will take effect as of July 1, 2013. The potential availability of broader challenges to expert testimony under the new law could significantly alter pretrial and trial strategy in cases where expert testimony figures importantly. Litigants should therefore carefully consider the potential applicability of the law in current and future cases and its impact on any expert testimony issues, and take appropriate steps to preserve challenges to expert testimony under the new law. Failure to ask the court to apply the new law would likely result in a waiver of challenges available under the new law.
For example, if depositions of expert witnesses have already been taken under the existing Frye regime, litigants might consider seeking to re-open or supplement the depositions to explore issues raised by the new standard. Similarly, pre-trial motions challenging expert testimony under the new law should be made where appropriate. If motions have already been made, consideration should be given to amending or supplementing them to incorporate the new challenges. It may be that a continuance of trial or extension of pre-trial deadlines will have to be sought to conduct the necessary discovery, present any appropriate motions and otherwise assess the law’s impact on possible motions in limine and trial.