Another Frye bites the dust — Florida moving toward Daubert


OK, this post isn’t about construction. But it is about law–civil procedure, to be precise. Anyone who has been through a trial knows how much persuasiveness expert witnesses can have, particularly with juries, but with judges and arbitrators as well. It’s been 20 years since the U.S. Supreme Court started reining in slick experts with Daubert v. Merrill Dow Pharmaceuticals, putting trial judges in a gatekeeper role to only allow reliable expert opinions to reach a jury. The high court followed its Daubert decision with General Electric v. Joiner (1997) and Kumho Tire (1999) which clarified the standard of review for a trial judge’s decision whether to admit expert testimony and also that the Daubert standard applies to all experts — not just scientific experts. Daubert and its progeny are now well-established rules in federal courts. Not so much in state courts, but that’s about to change for at least one state.

Many states still follow the old Frye standard, which allows experts to testify as long their expertise was “generally accepted” — whatever that means. Actually, what that means is that the trial judge doesn’t play a gatekeeper role at all; anyone who calls himself an expert can testify. Florida is one of those Frye states. But not for long, at least, not apparently.

Late last week both chambers of the Florida legislature passed HB 7015, which writes the Daubert standard right into the Florida Evidence Rules, effective July 1, assuming it’s signed by the governor. The text of the bill is here and here:

90.702 Testimony by experts.
(1) If scientific, technical, or other specialized 25 knowledge will assist the trier of fact in understanding the 26 evidence or in determining a fact in issue, a witness qualified 27 as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (a) The testimony is based upon sufficient facts or data; (b) The testimony is the product of reliable principles and methods; and (c) The witness has applied the principles and methods reliably to the facts of the case.
(2) The courts of this state shall interpret and apply the requirements of subsection (1) and s. 90.704 in accordance with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and subsequent Florida decisions applying or implementing Frye no longer apply 44 to subsection (1) or s. 90.704. All proposed expert testimony, including pure opinion testimony as discussed in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), is subject to subsection (1) and s. 90.704.