The Florida Bar
The Florida Bar Journal
September/October, 2014 Volume 88, No. 8
Adoption of Daubert in the Amendment to F.S. §90.702 Tightens the Rules for Admissibility of Expert Witness Testimony

by Alex Cuello and Stephanie Villavicencio

Page 38

Nearly 20 years ago, the U.S. Supreme Court held that the admissibility of expert witness testimony under the long-standing standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was inconsistent with the Federal Rules of Evidence.1 In the landmark case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), the Court addressed four factors to consider in determining the admissibility of expert witness testimony. Shortly thereafter, a majority of states adopted the Daubert analysis.2 Effective July 1, 2013, Florida became a Daubert state. The revision to F.S. §90.702 adopts, almost verbatim, Fed. R. Evid. 702.3 This change is procedural and applies retrospectively.4

F.S. §90.702 now reads:

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 upon sufficient facts or data;

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

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

Prior to Daubert, Florida courts analyzed the admissibility of expert witness testimony under the Frye test, which required that “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”5 If the opinion was not based on new or novel theories, its admissibility was tested under the pure opinion analysis, which is supported through the expert’s own experience and training.6

After a variety of decisions were made utilizing the Frye standard and the pure opinion exception that developed from the same, Florida courts confirmed that if an expert’s opinion eschews scientific method and relies solely on experience and training, then the opinion was admissible without being subject to any analysis, whether it be Frye or otherwise.7 Some opined that disallowing the pure opinion exception of Frye would have eliminated the shortcomings of the standard without realizing that the instability of Frye actually promulgated those same exceptions.8 The Florida Supreme Court had previously stated that the Daubert standard applied in federal courts was more lenient than the Frye standard.9 However, a reading of Daubert clearly sets forth a higher standard in applying the factors utilized to test the admissibility of the expert’s opinion against the factual evidence before the court.

In Daubert, the Court stated that the purpose of Rule 702 is to ensure that the expert’s testimony admitted into evidence is both relevant and reliable.10 As the gatekeeper, the trial judge considers the proffered expert’s qualifications as well as the relevance and reliability of the proffered expert’s testimony.11 In applying the rule, the focus is not on the opinion of the expert; but rather, the principals and methods employed by the expert, as appropriately applied to the facts of the case, in forming an expert opinion.12 Rule 702 is to be applied liberally and with flexibility.13 In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Court expanded the scope of the application of the Daubert holding as applied to any qualified expert witness testimony.14

An individual may be competent to give expert testimony in a subject matter if qualified “by knowledge, skill, experience, training or education.”15 Other considerations on the qualification of an expert may include continuing education, certifications, professional affiliations, and fellowships.16 There is no licensure or professional training mandate in order to qualify as an expert.17 Knowledge obtained from an occupation or business may qualify someone to proffer expert opinions on a subject matter pending before the court.18 Nonetheless, “[i]t is not enough that a witness is qualified in some general way; he [or she] must have special knowledge about the discrete subject upon which he is called to testify.”19 Witness’ qualifications and competency are determined by the trial judge.20 A party must demonstrate their expert’s competence on a subject matter pending before the court by a preponderance of the evidence.21 Absent a clear showing of error on the judge’s discretion, the trial judge’s determination on the qualification of an expert witness will not be reversed.22

However, not all questions before the court warrant expert witness testimony. Naturally, “[t]he purpose of an expert witness is to aid the trier of fact in the quest for truth in those areas which are not of common knowledge.”23 The use of expert testimony is generally allowed “when the facts to be determined are obscure, and can be made clear only by and through the opinions of persons skilled in relation to the subject matter of the inquiry.”24 Once a witness qualifies as an expert, the use of his or her testimony is admissible if two elements are present in a trial. First, the subject of the inference on which the opinion is based:

must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman. Second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier of fact in its search for the truth.25

F.S. §90.703, titled “Opinion on Ultimate Issues,” provides that the “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.”26 Nevertheless, an expert’s conclusory opinion on how the case should be decided is inadmissible.27 Only the trier of fact can determine the weight and credibility given to expert testimony. 28

Florida courts have held expert testimony as admissible when proffered by various professionals: an attorney as to whether an insurer met a standard of care; an insurance expert as to customs and usage in the insurance business, types of policies, premium rates, as well as policy terms and claims handling in interpreting parties’ rights and obligations; an engineer to aid in determining whether gas pipeline distributions complied with administrative rules; a securities law expert to understand the term “security” as used in the Florida Statutes; and an expert on ergonomics to explain a subject beyond common understanding.29

Expert testimony regarding the interpretation of a statute or ordinance is inadmissible. Florida courts have excluded expert testimony from attorneys on issues regarding the interpretation of probate law; a testator’s intent; statutory requirements for the execution of a will; and construction of language in a deed.30 The opinion of a municipal tax expert on the meaning of “real and substantial” as used in case law when the testimony dictates a decision to the trier as to whether a fraud had been committed is also inadmissible.31 In short, not every issue warrants the use of expert testimony.32

The U.S. Supreme Court in Daubert held that under Rule 702, “general acceptance” is not a precondition to the admission of scientific evidence.33 This decision dismissed 70 years of Frye’s “general acceptance” inquiry for determining admissibility of scientific expert testimony. In its review of the trial court’s application of Rule 702, the appellate court outlined four factors for the trial judge to weigh in assessing “whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”34 The four factors the Court considered in Daubert are 1) whether the theory or technique can (and has been) tested; 2) whether it has been subject to peer review or publication; 3) whether, in respect to a particular technique, there is a high “known or potential rate of error” and whether there are standards controlling the technique’s operation; and 4) whether the theory or technique enjoys “general acceptance” within a “relevant scientific community.”35 The

Court was careful to note that “[m]any factors will bear on the inquiry, and…[did] not presume to set out a definitive checklist or test.”36 Indeed, the “Daubert factors are not holy writ, in a particular case the failure to apply one or another of them may be unreasonable, and hence an abuse of discretion.”37

The advisory committee to the 2000 amendments supported the factors listed in Daubert, and listed other factors to consider in testing the reliability of expert testimony, which include testifying from independent litigation research, gaps between opinion and data, accounting for alternative explanations, regularity of examination outside of paid consulting, and reliability of results from a particular field of expertise.38 It is interesting to note that one of the factors evident in Daubert — whether it has been subject to peer review or publication — is not included in the amendment to F.S. §90.702. Florida courts disallow the use of support sources, such as peer reviews or articles and journals, to bolster an expert witness’ opinion on direct examination.39

As amended, F.S. §90.702 raises the threshold for the admissibility of the expert testimony by testing the ultimate opinion against the availability of facts or data, applied using reliable principle and methods to the facts of the case at hand.40 The first factor of F.S. §90.702 seeks to examine the quantity of data available to the expert in forming his or her opinion. The remaining factors serve to create a qualitative analysis of whether the expert witness’ opinion can be tested for reliability.

“The admissibility of expert testimony in this state is governed by section 90.702 of the Florida Evidence Code.”41 The amendment to F.S. §90.702, which became effective July 1, 2013, subjects the admissibility of expert witness testimony to greater scrutiny through analyzing, not only the expert’s ultimate opinion, but also the quantity and quality of the underlying principals, as applied to the facts of the case at hand in the formation of the expert’s opinion. To be admissible, the expert’s testimony must be both relevant and reliable. As stated by Chief Judge Shepherd in amending F.S. §90.702, “[t]he legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.”42

1 Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993).

2 Stephen E. Mahle, The “Pure Opinion” Exception to the Florida Frye Standard, 86 Fla. B. J. 41 (Feb. 2012).

3 Fla. Stat. §90.702 (2013).

4 Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 498 (Fla. 3d DCA 2014).

5 Frye, 293 F. at 1014.

6 Id.

7 Hood v. Matrixx Initiatives, Inc., 50 So. 3d 1166 (Fla. 4th DCA 2011); Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007).

8 Mahle, The “Pure Opinion” Exception to the Florida Frye Standard, 86 Fla. B. J. 41 (Feb. 2012).

9 Brim v. State, 695 So. 2d 268, 271 (Fla. 1997).

10 Daubert, 509 U.S. at 589.

11 Id.

12 Id. at 595.

13 Id. at 594.

14 See generally Kuhmo Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999).

15 Vega v. State Farm Mut. Auto, 45 So. 3d 43, 44 (Fla. 5th DCA 2010).

16 Id.

17 Id. (citing Davis v. S. Fla. Water Mgmt. Dist., 715 So. 2d 996, 998 (Fla. 4th DCA 1998); Fla. Stat. §90.702 (2010)).

18 Id.

19 Vega, 45 So. 3d at 46.

20 Fla. Stat. §90.105 (2013).

21 Daubert, 509 U.S at 592.

22 Ramirez v. State, 542 So. 2d 352, 354 (Fla. 1989).

23 Aetna Ins. Co. of Hartford, Conn. v. Loxahatchee Marina, Inc., 236 So. 2d 12, 14 (Fla. 4th DCA 1970).

24 Consolidated Mut. Ins. Co. v. Ramy, 238 So. 2d 431 (Fla. 3d DCA 1970) (referring to Millar v. Tropical Gables Corp., 99 So. 2d 589 (Fla. 3d DCA 1958)).

25 Horowitz v. American Motorist Ins. Co., 343 So. 2d 1305, 1306 (Fla. 2d DCA 1977) (citing to Mills v. Redwing Carriers, Inc., 127 So. 2d 453 (Fla. 2d DCA 1961)).

26 Fla. Stat. §90.703 (2013).

27 Horowitz, 343 So. 2d at 1306.

28 Id.

29 See generally Red Carpet Corp. of Panama City Beach v. Calvert Fire Ins. Co., 393 So. 2d 1160 (Fla. 1st DCA 1981); Aetna Ins. Co. of Hartford, Conn. v. Loxahatchee Marina, Inc., 236 So. 2d 12, 14 (Fla. 4th DCA 1970); Noa v. United Gas Pipeline Co., 305 So. 2d 182 (Fla. 1974); Orpe v. Carnival Corp., 909 So. 2d 929 (Fla. 3d DCA 2005); Bookhardt v. State, 710 So. 2d 700 (Fla. 5th DCA 1998).

30 Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So. 2d 565 (Fla. 1st DCA 1994); Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011); In re Estate of Lenahan, 511 So. 2d 365 (Fla. 1st DCA 1987); Hann v. Balogh, 920 So. 2d 1250 (Fla. 2d DCA 2006); In re Estate of Williams, 771 So. 2d 7 (Fla. 2d DCA 2000); Devin v. City of Hollywood, 351 So. 2d 1022 (Fla. 4th DCA 1976).

31 Town of Palm Beach v. Palm Beach County, 460 So. 2d 879, 882 (Fla. 1985).

32 Id.

33 Daubert, 509 U.S. at 579.

34 Id. at 592.

35 Id. at 593.

36 Id.

37 Kumho, 156 U.S. at 159 (Scalia A. concurring).

38 Fed. R. Evid. 702 advisory committee’s note (citing Daubert, 509 U.S. at 593; General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994); Ambrosini v. Labarraque, 101 F.3d 129 (D.C. Cir. 1996); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); Kumho, 156 U.S. at 146, 147)).

39 See generally Miller v. State, 127 So. 3d 580 (Fla. 4th DCA 2012); In re S.E., 946 So. 2d 620 (Fla. 2d DCA 2007); Network Publications, Inc. v. Bjorkman, 756 So. 2d 1028 (Fla. 5th DCA 2000).

40 Fla. Stat. §90.702 (2013).

41 Perez, 138 So. 3d at 496.

42 Id. at 497.

Alex Cuello is the principal shareholder of the Law Office of Alex Cuello, P.A., in Miami. His practice focuses on elder law with an emphasis in the area of probate and guardianship administration and litigation. He is board certified as a specialist in elder law and serves on the executive council of the Elder Law Section.

Stephanie Villavicencio is an associate at Zamora & Hillman in Miami. Her practice focuses on elder law with an emphasis on probate and guardianship administration and litigation. She is an executive council member of the Elder Law Section of The Florida Bar and editor of the section’s magazine, The Elder Law Advocate.

This column is submitted on behalf of the Elder Law Section, Jana McConnaughhay, chair, and Stephanie M. Villavicencio, editor.

[Revised: 08-28-2014]