Florida Bar Journal

Does Daubert Govern Expert Admissibility in Proceedings Under the Florida Administrative Procedure Act?

It seems that Daubert^[1] has won out as the standard to govern admissibility of expert witness testimony in civil and criminal cases in Florida — there does not appear to be appetite to return to the Frye^[2] standard. But does Daubert govern admissibility of expert testimony in proceedings under the Florida Administrative Procedure Act? This is a question that most would think has been firmly resolved by now. Unfortunately, over a decade since the Daubert standard has been enshrined in statute by the Florida Legislature, the answer is not so clear.

As other authors have noted, Florida has had an on-again, off-again relationship with the Daubert standard. Thirty years ago, the U.S. Supreme Court decided Daubert, in which it held that a new standard in the revised Federal Rules of Evidence superseded the rule set forth in Frye that required “new or novel scientific techniques” employed by an expert in rendering an opinion to have general acceptance in the scientific community.^[3]

In 2013, the Florida Legislature enshrined this standard into statute by amending F.S. §90.702 to explain:

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.^[4]

However, that did not end the controversy. In the ensuing years, the Florida Supreme Court would provide important direction, though it would not be a straight path forward.

Fla. Indus. Power Users Grp. v. Graham

In 2017, before even addressing Daubert’s application within the Florida Rules of Evidence, the Florida Supreme Court was confronted with the issue of whether the rule of sequestration, codified in F.S. §90.616, applied to administrative proceedings before the Florida Public Service commission (commission) in Fla. Indus. Power Users Grp. v. Graham, 209 So. 3d 1142 (Fla. 2017). At the final hearing in a proceeding filed by a private utility company seeking the commission’s approval to purchase a new power plant, an intervenor in the case, the Florida Industrial Power Users Group, asked the commission to invoke the rule of sequestration and separate testifying witnesses.^[5]

However, the commission declined to do so, concluding that it had discretion as to whether to apply the rule.^[6] On appeal, the court analyzed the language of §90.616 and found that although “the statute makes sequestration mandatory if a party requests it, the plain language of the statute is ambiguous as to whether it applies to administrative proceedings.”^[7] The court turned to §90.103, which provides that the Evidence Code “applies to the same proceedings that the general law of evidence applied to before the effective date of this code,” to determine that “the general law of evidence did not apply to administrative proceedings before” the code’s 1979 effective date.^[8] Accordingly, the court concluded that “the Florida Evidence Code does not strictly apply to administrative proceedings” and that “the [c]ommission has discretion on whether to apply the Florida Evidence Code.”^[9]

Florida Evidence Code Cases

In separate opinions issued in 2017 and 2018,^[10] the Florida Supreme Court declined to adopt the Daubert standard as the law of the land, to the extent procedural,^[11] and instead retained the Frye standard that governed such evidence prior to Daubert. Between those two opinions, Florida’s First District Court of Appeal issued an opinion in SDI Quarry v. Gateway Estates Park Condominium Ass’n, 249 So. 3d 1287, 1293 (Fla. 1st DCA 2018), in which it concluded that Daubert “would still apply in administrative proceedings under [Ch.] 120, Florida Statutes, which are not governed by rules of procedure promulgated by the Florida Supreme Court.”

To resolve any doubt, in 2019, shortly after obtaining a new majority ushered in by the retirement of several justices appointed by Democratic governors, the Florida Supreme Court receded from its prior opinions and fully embraced the Daubert standard set forth in §90.702 as part of the Florida Evidence Code.^[12]

Surely that would lay the issue to rest — Daubert would apply in civil, criminal, and administrative litigation, right? Unfortunately, that’s not the case, and the applicability of Daubert in administrative litigation is as uncertain as ever.

SDI Quarry Case

In June 2018, Florida’s First District Court of Appeal issued a decision that has complicated Daubert’s applicability to administrative proceedings.^[13] Prior to issuance of that case, however, administrative law judges (ALJ) at the Florida Division of Administrative Hearings (DOAH) were consistent in their approach to Daubert issues: Daubert was applied.^[14]

In SDI Quarry, a condominium association filed a petition under the Florida Construction Materials Mining Activities Administrative Recovery Act to seek compensatory damages against a mining company for damage to a man-made lake on the association’s property caused by blasting activity at a nearby quarry.^[15] The court largely focused its analysis on whether the ALJ’s conclusion that the blasting caused the damage to the lakeshore was supported by competent, substantial evidence and whether the association’s claim was timely.^[16]

However, the court also evaluated the mining company’s argument that the ALJ erred by accepting the association’s witness as an expert because he could not satisfy the Daubert standard. Despite observing that the Daubert “claim is not preserved for appeal because [a]ppellant never raised a Daubert objection or requested a Daubert hearing below” and that the court cannot address the unpreserved Daubert argument, it also concluded that “[a]lthough the Florida Supreme Court declined to adopt this amendment to the extent it was procedural…, the amendment would still apply in administrative proceedings under [Ch.] 120, Florida Statutes, which are not governed by rules of procedure promulgated by the Florida Supreme Court.”^[17]

So, given that First District opinions are generally binding on administrative agencies and DOAH, does SDI Quarry’s analysis on an unpreserved Daubert challenge require ALJs to apply Daubert?

DOAH Reception to SDI Quarry

Since SDI Quarry, ALJs in nine DOAH cases have been confronted with the applicability of Daubert to administrative proceedings and have reached different conclusions. The general trend appears to be that ALJs considered SDI Quarry a mandate to apply Daubert to administrative proceeding until relatively recently, when the precedential value of that opinion has been called into question as dicta.

Three approaches have emerged: 1) applying Daubert, 2) finding Daubert inapplicable, and 3) a middling approach explaining that the ALJ has the discretion to apply Daubert in any given case, but is not required to.

• ALJs That Have Applied Daubert — ALJ Earley was the first to apply SDI Quarry and explained that “a determination of the reliability of expert testimony is [not] restricted by the general evidentiary standard established in [§]120.569(2)(g)” and that “as it pertains to specialized expert testimony, an evaluation of the reliability of that testimony is a step that is required by reasonably prudent persons.”^[18]

ALJ McArthur was confronted with Daubert’s applicability to a case^[19] in which the final hearing occurred just prior to the Florida Supreme Court’s opinion that ultimately adopted the Daubert standard in 2019. In the case, the department sought to exclude expert testimony based on the Frye standard — ALJ McArthur ultimately held the Frye standard inapplicable to the case and accepted the expert under Daubert.^[20]

Even by 2020, the issue had not been definitively resolved. Rainbow River Conservation, Inc., filed a petition challenging a rule proposed by the Southwest Florida Water Management District that would establish a minimum flow level for the Rainbow River System, asserting the rule was an invalid exercise of delegated legislative authority.^[21] In that case, ALJ Telfer analyzed expert testimony under the Daubert standard and found that the expert testimony, regarding geology, Florida hydrology, springs ecology, wetlands ecology and management, minimum flows and levels modeling, and statistical analysis was “evidence of a type commonly relied upon in cases of this sort.”^[22] He ultimately found the expert testimony satisfied Daubert.^[23]

• ALJs That Have Found Daubert Inapplicable — In another case, ALJ Telfer was confronted with Daubert’s application to administrative proceedings in South Florida Community Care Network, LLC v. Florida Department of Health, No. 18-4242BID, 2018 WL 6137047 (Fla. Div. Admin. Hrgs. Nov. 19, 2018), ^[24] following the Florida Supreme Court’s issuance of their opinion in DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018). ALJ Telfer ultimately concluded that “[a]s a result of the DeLisle decision, the standard for determining the admissibility of an expert witness’s opinion testimony is the standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).”^[25]

ALJ Van Laningham was the first to hold that the First District’s Daubert holding in SDI Quarry was dictum because the appellant failed to preserve the issue for appeal.^[26] Even if it wasn’t dictum, ALJ Van Langingham concluded that SDI Quarry’s holding was “directly and irreconcilably in conflict with” the Florida Supreme Court’s decision in Graham and, thus, does not control.^[27] He also rejected the contention that ALJs had discretion to apply Daubert in any given case.^[28]

By mid-2020, ALJ Meale observed in a case that “[i]t is unclear whether Daubert applies to an administrative proceeding.”^[29] Later that year, ALJ Meade confronted Daubert’s applicability in light of SDI Quarry head-on, in a case that would be overturned on other grounds on appeal.^[30] Specifically, in Copans Motors, Inc. v. Porsche Cars N. Am., No. 19-0177, 2020 WL 6118594, at **30-32 (Fla. Div. Admin. Hrgs. Oct. 12, 2020), he explained that the entire universe of authority governing admissibility of evidence in Ch. 120 proceedings is comprised of F.S. §§120.569, 120.57(1), and Rule 28-106.213(4).^[31] “For administrative proceedings, the courts lack the authority to enact substantive provisions, due to the principle of separation of powers noted above. Courts also lack the authority, under separation of powers, to enact procedural provisions for administrative proceedings.”^[32] He concluded that administrative proceedings are not subject to evidence code because §90.103(1) applies evidence code “to the same proceedings that the general law of evidence applied to before” its 1979 adoption.^[33] Although the Administrative Procedures Act was enacted in 1974, administrative proceedings were not subject to the evidence code at that point.^[34] This is contrary to workers’ compensation proceedings, which are a distinct type of administrative proceeding and were subject to general law of evidence prior to 1979.^[35] ALJ McKinney reached a similar conclusion in a recently decided medical negligence arbitration case, which is governed by the Ch. 120 evidentiary standards, and found that Daubert does not apply to the case.^[36]

• ALJs That Have Asserted Discretion To Apply Daubert as Needed — In a more recent decision from ALJ McArthur, and perhaps the most pragmatic explanation of Daubert’s applicability in administrative proceedings, she explained the following in Corcoran v. Meister, No. 19-6755PL, 2020 WL 7873381, *1 (Fla. Div. Admin. Hrgs. Aug. 25, 2020):

While not all of the Florida Evidence Code strictly applies in administrative proceedings, the undersigned has the discretion to look to its provisions and apply them or not, as deemed appropriate. See Fla. Indus. Power Users Grp. v. Graham, 209 So. 3d 1142, 1146 (Fla. 2017). Section 90.702 is not expressly incorporated in the Administrative Procedure Act or Uniform Rules of Procedure, but it provides some useful guidance in applying the general evidentiary standard that does apply here. Nonetheless, the compelling need for a gatekeeper to protect a jury from improper opinion testimony in civil jury trials is notably absent in this setting.^[37]

What Should Practitioners Take Away from This?

The biggest takeaway from this article for administrative litigators is that over a decade since the Daubert standard was enshrined in Florida statutes, applicability of the standard to proceedings under the Administrative Procedure Act is still very much up in the air. Upon assignment of an ALJ to their case, a prudent litigator will research that particular ALJ’s past approach to Daubert issues to determine the types of arguments that may be persuasive for that attorney’s position. An advocate representing a party in a complex case regarding issues about enforcement of environmental regulations may be able to convincingly argue that Daubert applies, or that the ALJ should exercise his or her discretion to apply Daubert in that particular case because the subject expert testimony is “evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs” in such circumstances.^[38] However, an argument urging exercise of discretion to apply Daubert may fall flat in front of an ALJ that does not believe they have any discretion to exercise. An advocate may have an easier time arguing that Daubert shouldn’t apply to exclude expert testimony in a child support or employment discrimination case because expert testimony in those circumstances should not be subject to such an exacting standard, particularly in light of SDI Quarry’s mandate being nonbinding dicta.

This column is submitted on behalf of the Administrative Law Section, Louise R Wilhite-St Laurent, chair, and Lyyli Van Whittle, editor.