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May 15, 2013
Expert witness measure clears both chambers

Moving from Frye to Daubert

By Gary Blankenship
Senior Editor

After some legislative maneuvering in the Senate, a bill changing the standard for admitting expert witness testimony in Florida court cases to the federal court standard cleared the Florida Legislature and was sent to Gov. Rick Scott.

Sen. Garrett Richter The bill would require that the Daubert standard — based on a U.S. Supreme Court opinion in 1993 — be used in Florida trials instead of the Frye standard, which stems from a 1923 case.

Proponents — including the business community — said Daubert is a better standard that prevents junk science from being used in cases and prevents frivolous lawsuits. Opponents —including state attorneys and plaintiff attorneys — said Daubert can be used as a delaying tactic to impose costs and time delays in cases and can require relitigating accepted scientific evidence and testimony in every case.

State attorneys expressed concerns that every fingerprint, DNA, and other expert witness they would seek to use in their cases would be subject to a separate “Daubert hearing,” which would raise costs and slow down the prosecution of cases.

The first procedural twist for the legislation came April 22 in the Senate Rules Committee. Sen. David Simmons, R-Altamonte Springs, proposed an amendment to have a hybrid system where expert testimony based on generally accepted science would be evaluated under Frye, while scientific evidence based on new principles and discoveries would be evaluated under Daubert. That’s identical to a proposal Simmons made that was adopted by the Senate in 2012 when the House and Senate failed to agree on a bill.

After an intensive debate, committee Chair John Thrasher, R-Jacksonville, held that Simmons’ amendment failed by a voice vote. But supporters called for a roll call tally, and the amendment wound up passing by one vote, to the obvious displeasure of sponsor Sen. Garrett Richter, R-Naples, who said he would try to amend it on the Senate floor.

“If you’re going to have expert testimony under the Frye standard, it has to . . . already be established in the given field,” Simmons said. “Daubert’s high threshold has been burdensome and expensive for plaintiffs, and requires screening every plaintiff expert and gives another cause for appeal.”

Richter called the change “déjà vu all over again” from last year, adding, “The battle is on.”

When the bill reached the full Senate three days later, Sen. Joe Negron, R-Palm City, offered a compromise. He likened the annual battle of the past few years over the Frye and Daubert standards as “political theater,” adding, “What I am interested in is fairness in our courts, and that everyone has access to the courthouse, and plaintiffs are treated fairly and defendants are treated fairly.”

His proposal dropped Simmons’ amendment from the bill. But it altered the original proposal, which would have placed specific references to Daubert and succeeding cases into the state’s evidence code, F.S. Ch. 90. Instead, it moves the references to those cases to the bill’s introductory whereas clauses and instead puts the three-part test set up by Daubert into Ch. 90.

That change, Negron said, would require that testimony is based on sufficient facts or data, is the product of reliable scientific principles and methods, and that the witness has applied the principles and methods to the facts of the case. He also said Simmons had made the suggestion about moving the reference of the Daubert cases to the introduction of the bill rather than the body.

In response to a question, Simmons said he still preferred his version of the legislation, but added, “I agreed to stand down on this issue and let it go. I will be voting in favor of the bill as amended.”

The Senate approved the amendment on voice vote. It then amended its version to the bill already passed by the House, HB 7015, and passed it on final reading on April 26 by a 30-9 vote. Later that day, the House accepted the Senate version by a 70-41 vote.

During the House debate on the final bill, sponsor Rep. Larry Metz, R-Groveland, said there was “no substantial difference” between the House legislation and the final Senate version, and said it was probably wise not to add references to case law to the evidence code, as the bill would have originally done.

“The three-prong test in the Daubert standard that we had in the original bill is still in the bill untouched,” Metz said.

The bill was awaiting the governor’s signature as this News went to press.

[Revised: 06-13-2014]