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September 15, 2017
Court set to revisit Daubert

By Gary Blankenship
Senior Editor

When the Florida Supreme Court declined to adopt a legislative change to the state’s evidence code on how expert witnesses are qualified, the majority said they wanted to address the issue in a case in conflict.

The court now has that case.

Quote Richard Delisle v. Crane Co., et al., Case No. SC16-2182, involves a plaintiff who claimed he contracted mesothelioma from smoking Kent cigarettes when they used asbestos in the filters (from 1952 to 1956) and from handling gaskets that contained asbestos when he worked at a paper mill. The court is considering the Legislature’s code change to require what is known as the Daubert standard to be used to qualify expert witnesses instead of the Frye standard the court has favored for decades.

“We did our work, the court made its ruling, but said it was looking to address the question in the course of a case. Now they have a case that raises the issue squarely for them to address,” said Wayne Hogan, vice chair of the Bar’s Code and Rules of Evidence Committee. Hogan headed a faction on the committee that opposed adopting the Daubert rule when the committee voted narrowly to oppose the Legislature’s actions.

In 2013, the Legislature, after years of consideration, approved an amendment to the evidence code, F.S. Chap. 90, that required a switch in qualifying experts from the Frye to the Daubert standard. Many trial courts, including the judge in the Delisle case, began using the Daubert standard even though the Supreme Court had not ruled on it.

Proponents of the amendment argued that Frye allows junk science in the courtroom, while Daubert provides more consistent scientific testimony. Opponents said Daubert, which is used in federal court and by most states, requires expensive mini-trials on admitting expert witnesses, delaying cases, raising costs, and thereby limiting access to the courts.

The evidence code and rules occupy a unique position in the procedural rules universe. Under the Florida Constitution, the Legislature, through the evidence code in Chap. 90, is in charge when substantive issues are involved. However, on procedural matters that involve the functioning of the courts, the Supreme Court is in charge.

The Bar’s Code and Rules of Evidence Committee reviews all amendments to Chap. 90 and then makes recommendations to the Supreme Court that it should adopt those changes as evidence rules to the extent they are procedural. The committee almost always makes that recommendation to the court.

But in the Daubert/Frye controversy, the committee voted 16-14 to recommend the court not adopt the change to the Daubert standard in the evidence rules. The Bar Board of Governors endorsed that position by a 33-9 vote.

In its February 16 ruling, the court majority said it declined to adopt Daubert “due to the constitutional concerns raised, which must be left for a proper case or controversy.”

(Another issue covered in the opinion involved a change in state law requiring that expert witnesses in medical malpractice cases be from the same specialty as the defendant health-care provider. The code committee, with one abstention, recommended against adopting that change, as did a unanimous Board of Governors. In its opinion, the court also declined to adopt that rule, saying “we do not address the substantive/procedural issue raised here because whether the Legislature’s amendments . . . somehow run afoul of the trial court’s inherent power or this court’s rule-making authority must be left for a proper case or controversy and not decided in this rules case.”)

The rules case foreshadowed the justices’ approach to the Delisle appeal. Chief Justice Jorge Labarga and Justices Barbara Pariente, Fred Lewis, and Peggy Quince joined in the per curiam opinion. Justices Ricky Polston and Charles Canady agreed on the same specialty rule but dissented on Daubert, saying the court should have adopted that as the standard for qualifying expert witnesses. Justice Alan Lawson, new to the court, did not participate in that decision.

In the Delisle case, Labarga, Pariente, Lewis, and Quince voted to accept jurisdiction and hear the case. Canady, Polston, and Lawson voted against taking the appeal.

In their jurisdictional brief, Delisle’s attorneys noted that in the evidence code rules case, “several justices noted the lack of a pending case formally seeking review in this court of an appellate decision from a final judgment touching on objections to Daubert and making pertinent arguments in the context of the actual application of Daubert. This case supplies that perspective and directly presents that issue to this court. Lawyers and parties across Florida want this court to take it up.”

In the underlying case, the trial judge and the Fourth District Court of Appeal held even though the Supreme Court had not passed on the Legislature’s amendment of the evidence code, the change must be presumed valid and hence the Daubert standard should be used for expert witnesses.

In addition, although the trial judge had approved the appearance of three plaintiff expert witnesses, the Fourth DCA decided that under Daubert, two should not have testified. The appellate opinion overturned the jury verdict and award Delisle had won in the trial court.

Not surprisingly, the case has attracted the interest of third parties, as did the rules case. The Florida Justice Association and a group called the Concerned Physicians, Scientists and Scholars — which researches, diagnoses, and treats asbestos-related illnesses — have been granted permission to file amicus curiae briefs for Delisle.

The Florida Defense Lawyers Association, the Washington Legal Foundation, and the Florida Justice Reform Institute have sought permission to file amicus briefs on behalf of the defendants.The court has not yet set a date for oral arguments. Delisle’s attorneys have filed their initial brief, but the respondents have been granted a delay until September 20 to file their reply brief.

[Revised: 12-16-2017]