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February 1, 2012
Both chambers move expert testimony bills

By Gary Blankenship
Senior Editor

Bills to replace Florida’s standard for evaluating expert testimony with the standard used in federal courts advanced in both the House and Senate during the first week of the 2012 regular session of the Florida Legislature.

Rep. Larry Metz HB 243, by Rep. Larry Metz, R-Eustis, and SB 378, by Sen. Garrett Richter, R-Naples, would bring what is called the Daubert standard for admitting expert testimony to Florida, replacing the Frye standard used now.

Metz presented his bill January 11 at the House Civil Justice Subcommittee. He said the Daubert standard would “modernize” Florida law because the judge is more involved and can reduce the use of questionable expert testimony in cases.

Under Daubert, expert testimony must be based on sufficient facts, as well as reliable principles and methods, and must be reliably applied to the facts of the case. With Frye, the testimony must be based on information that “is generally accepted in the field from which it emanates,” Metz said.

“As a practical matter, what happens is you’ll have dueling experts in cases more frequently, and . . . the court most commonly will let the jury, the trier of fact, decide the issues,” he said. “So we have no real vetting by the judge, unless a Frye hearing is requested by a practitioner, in which case the judge could have an evidentiary hearing and fully vet the issue of general acceptance, but that’s all that really occurs.”

“This is not about business. This is about justice; this is purely about justice,” Richter said when he presented his bill January 12 before the Senate Judiciary Committee.

“This is not pro business or anti business or pro plaintiff or anti plaintiff. This is about justice. . . . It’s going to require that testimony be based on reliable facts and data.”

Both the House and Senate committees had vigorous testimony and debate, with business groups supporting the bill, and plaintiff attorneys opposing it. Supporters of the bills argued that most states have followed the federal standard and now use Daubert, and none who have made the switch have gone back. Opponents said only a handful of states, perhaps as few as six, use the “pure” Daubert standard used in the two bills, and most use either a hybrid of Daubert and Frye or still use Frye.

Proponents said it would minimize the use of junk science and produce more predictability in Florida law. Opponents said it would dramatically increase the cost of litigation because Daubert hearings are longer and more complex and are frequently used as a tactic to delay a case and raise costs for the opposing party. Opponents also said it turns judges into amateur scientists charged with determining the validity of highly complex issues.

During the House Civil Justice Subcommittee debate, Rep. Martin Kiar, D-Southwest Ranches, asked Metz: “Would this turn the judge into a pseudo scientist?”

“It would be far better to have the judge assume that role than tee it up and kick it to the jurors,” Metz replied.

Theodore VanItallie, a law professor and former head of litigation for Johnson and Johnson, said switching to the Daubert standard would signal that Florida is a business- friendly state not only for large businesses, but also for small and mid-size businesses. “What the bill does is provide the state with a very fair construct to measure the expert testimony,” he told the Senate committee.

But Orlando attorney Carolyn Salzmann, also testifying before the Senate panel, said the bill can raise costs so high that it bars access to the courts for average people with small to mid-size cases. She said she used to be an engineer working for Fortune 500 companies for 13 years before going to law school and then working in a large law firm defending such corporations.

She said she used Daubert as a tactical method to defend litigation and “would use it as a tool in a war of attrition.”

Now running her own firm and representing plaintiffs, Salzmann said that Daubert places an unfair burden on plaintiffs as well as state courts, which don’t have the resources of federal courts to handle complex Daubert hearings. Some hearings can last as long as the trial, she said.

Fifth Circuit State Attorney Brad King, representing the Florida Prosecuting Attorneys Association, raised a different issue. He said because Daubert hearings are longer and hence more expensive, they could cause huge problems for cash-strapped state attorneys.

He also argued that Frye is actually a tougher standard than Daubert, and that under Daubert, judges could issue different rulings in similar cases.

“The reality is you’re going to raise our costs and you’re going to lower the standards, and you need to be prepared to deal with those two issues,” he said during his Senate testimony.

King did not testify at the House meeting, but Rep. Michael Weinstein, R-Orange Park, a former prosecutor, was there to argue that Daubert would not have a major impact on prosecutors. He said only about 2 percent of the cases in the Fourth Circuit actually go to trial, and, “You can count on your fingertips the cases where there may be a Frye or Daubert hearing. It really has a de minimis effect.”

During debate in the Senate committee, Sen. David Simmons, R-Altamonte Springs, said he would support the bill at the committee but ultimately will oppose it unless it changes into a hybrid of Daubert and Frye.

“I have grave concerns about the bill. I believe it goes too far. It throws the baby out with the bathwater. It uses a shotgun to solve a headache,” he said. “The Daubert standard doesn’t work. It imposes upon judges a job they can’t keep. It makes them gatekeepers when they don’t want to be gatekeepers. It is incredibly wasteful in terms of judicial resources. It creates mini trials within trials.”

Simmons also said it would reduce the number of jury trials — which he called a fundamental right under the U.S. Constitution — because of the higher costs and complexities.

Sen. John Thrasher, R-Orange Park, disagreed, arguing: “A judge is going to make a determination on whether there is truth or value in that testimony. How is that wrong? How is that bad for the state of Florida?”

Richter’s bill passed the Senate Judiciary Committee 5-2. It must also be reviewed by the Criminal and Civil Justice Appropriations Subcommittee and the Budget Committee.

Metz’s bill passed the House Civil Justice Subcommittee 11-4. It has also been referred to the Judiciary Committee. A nearly identical bill passed the House last year, but died in the Senate.

[Revised: 04-01-2014]