The Supreme Court of Florida recently held that the Florida Legislature’s 2013 amendment of the Florida Rules of Evidence adopting the federal Daubert standard for admitting expert testimony was unconstitutional.
In so ruling, the Court returned Florida to the Frye standard for admitting expert testimony.
A copy of the opinion in Richard DeLisle v. Crane Co., et al. is available at: Link to Opinion.
The case involved the admissibility of expert testimony in a plaintiff’s personal injury action against several cigarette manufacturer defendants. The plaintiff used multiple experts to establish that smoking cigarettes caused his cancer. The trial court examined the admissibility of the expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the prevailing standard in Florida at the time of the trial.
As you may recall, in Daubert, the Supreme Court of the United States pronounced the standard to admit expert scientific testimony in federal court. In doing so, the Supreme Court announced that Federal Rules of Evidence 702 had superseded the prior standard to admit expert testimony announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The Frye Court had held that courts should admit “expert testimony deduced from a well-recognized scientific principle or discovery” that had “gained general acceptance in the particular field in which it belongs.”
Daubert receded from Frye holding that to qualify as admissible “scientific knowledge, an inference or assertion must be derived by the scientific method.” This shifted the focus from “general acceptance” to “principles and methodology, not on the conclusions that they generate.”
Following Daubert hearings, the trial court admitted the experts’ testimony and the plaintiff prevailed at trial.
The defendants appealed to Florida’s Fourth District Court of Appeal. The Fourth District reversed for a new trial as to one defendant and a directed verdict in favor of another defendant finding under Daubert that the trial court did not “properly exercise its gatekeeping function” for several of the experts.
The Supreme Court of Florida granted the plaintiff’s request for review.
The Court noted that it has worked with the Florida Legislature for almost 40 years “to enact and maintain codified rules of evidence.” In 1976 the Florida Legislature enacted the Florida Evidence Code. In 1979, the Court adopted the Evidence Code to the extent that it was procedural.
In doing so the Court found that any evidence rules that were substantive in nature were the Legislature’s responsibility, but that the Court had the sole responsibility for any procedural evidence rules or rules that govern “the parties, their counsel, and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution.”
In 2013, the Florida Legislature amended section 90.702, Florida Statutes to incorporate Daubert into the Florida Rules of Evidence and to cease applying the Frye standard to expert testimony. The Frye rule was the standard in Florida before the 2013 amendment.
The Court observed that in Article II, section 3, the Florida Constitution “prohibits one branch of government from exercising any of the powers of the other branches.”
Relevant here, Article V, section 2(a) gives the Court “the exclusive authority to ‘adopt rules for the practice and procedure in all courts.’ ” The Florida Constitution further provides that to repeal any court rule or decision, the Legislature must enact a law “by a two-thirds vote of the membership of each house of the legislature.” The Court concluded that the Legislature exceeded its authority because the vote to amend section 90.702 did not meet this requirement.
Moreover, the Court found that the 2013 amendment to section 90.702 was not substantive because it didn’t “create, define, or regulate a right. Instead, it is procedural because it solely regulates the action of litigants in court proceedings.”
Next, the Court noted that to declare the 2013 amendment to section 90.702 unconstitutional it also had to “conflict with a rule of this Court.” The Court had little trouble finding that its rulings adopting the Frye standard created a procedural rule because the Court may pronounce a rule in case law.
Thus, the Court found the 2013 amendment to section 90.702 unconstitutional and reaffirmed “that Frye, not Daubert, is the appropriate test in Florida courts.”
Applying Frye to this case, the Court noted that Frye does not apply “to the vast majority of cases because it only applies when experts render an opinion that is based on new or novel scientific techniques.” Against this backdrop, the trial court properly admitted the expert testimony because “medical causation testimony is not new or novel and is not subject to Frye analysis.”
Accordingly, the Court reversed the Fourth District’s ruling and remanded to the trial court to reinstate the judgment in favor of the plaintiff.