Daubert
A September/October 2024 Journal article summarized how administrative law judges (ALJs) in the Division of Administrative Hearings have historically approached and differed on the admissibility of expert evidence. However, the article incorrectly suggested that the status of Daubert in administrative proceedings is “still very much up in the air.” Fortunately, the First District has clarified the issue.
In SDI Quarry v. Gateway Estates Park Condo. Ass’n, 249 So. 3d 1287, 1293 (Fla. 1st DCA 2018), the First DCA held that Daubert would apply in administrative proceedings. The article dismisses this holding as “nonbinding dicta,” relying on an ALJ’s reasoning from a recommended order in 1701 Collins (Miami) Owner, LLC v. Dep’t of Revenue, Case No. 19-1879 (Fla. DOAH Dec. 17, 2019). The article overlooked that case’s subsequent history.
The ALJ’s recommendation to disregard SDI Quarry was rejected (along with other recommendations) in the agency’s final order in 1701 Collins. The final order — including the applicability of Daubert — was then challenged before the First DCA.
The First DCA “affirm[ed] the final order as to all three issues raised on appeal” and addressed in detail a non-Daubert issue. 1701 Collins Miami Owner, LLC v. Dep’t of Rev., 321 So. 3d 875, 876 (Fla. 1st DCA 2021) (emphasis added). However, unlike a per curiam affirmance without opinion, which is non-precedential because it is impossible to know whether it adopted the reasoning of lower tribunal or was decided on other grounds, here the court was explicit. The court expressly endorsed the agency’s position on all issues raised on appeal. This included the applicability of Daubert in administrative proceedings. In light of SDI Quarry, as bolstered by 1701 Collins, parties should no longer face the dizzying prospect of inconsistent or ad hoc approaches to admitting expert evidence under F.S. Ch. 120.
The takeaway for practitioners is that any proffer of — or objection to — expert evidence in an administrative proceeding should be done under the Daubert framework. Anything less invites reversible error.
