Board takes up controversial expert witness rule
A debate over how expert witnesses in a trial are qualified that roiled the Legislature two years ago is being played out again before the Bar Board of Governors.
The enactment in 2013 of an amendment to F.S. Chap. 90, the state’s evidence code, is now subject of a recommendation by the Bar’s Code and Rules of Evidence Committee (CREC) that the change not be adopted as an evidence rule.
The law requires that courts use the Daubert standards in evaluating experts, overturning a Florida Supreme Court ruling which had established what are known as Frye criteria for evaluating those experts.
The issue has proved as convoluted in CREC as it did in the Legislature, where it took three attempts to get the bill passed. The committee, which occupies a rather unique role among procedural rule committees, had tentatively voted in 2013 to recommend that the Supreme Court adopt the law into evidence rules to the extent it is procedural. But in its final vote, the panel voted 16-14 to recommend against adopting the law as an evidence rule.
The Board of Governors, which considers and votes on procedural rule changes before they are submitted to the court, got its first look at the proposal at its July meeting but had committee members available to answer questions at its October 16 meeting. Board members spent 90 minutes listening to pro and con presentations from committee members Wayne Hogan and David Jones and asking questions.
The board then tabled debate on the recommendation and a vote until its December 4 meeting in Naples. Under the Rules of Judicial Administration, the board must make its recommendation on the rules by December 15, and CREC has until February 1, 2016, to evaluate those comments and submit its report to the Supreme Court under its three-year-cycle rule amendments.
The Legislature’s 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, defense lawyers, and public defenders — 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.
Hogan said under Frye, it’s largely up to a jury to determine the validity and competence of an expert witness as long as the expert is testifying about matters that have obtained general acceptance. Daubert, he said, requires the judge to make a ruling on those issues, which can lead to endless protracted hearings and requires the judge to become an amateur scientist. State attorneys have said even routine matters, such as fingerprint evidence, can result in repeated hearings in case after case about the methodology and qualifications of the expert witness.
But Jones argued there is little evidence in the federal courts or 35 states that use the Daubert standard that endless hearings are clogging cases. And he said Frye requires jurors to become amateur scientists and can lead to the introduction of junk science in the courtroom because of its laxer standards. Public defenders have argued Frye can lead to wrongful convictions because questionable scientific evidence gets admitted as fact.
Hogan said if the court declines to adopt law into evidence rules, that could impact cases that have started and where judges, following the law since its enactment, are using the Daubert standard.
The two will present their opinions in separate articles that will appear in the November 15 News.
Aside from the Daubert, issue, CREC voted to recommend that the court also not adopt in the rules of evidence another lower profile but still controversial change to the evidence code on expert witnesses in medical malpractice cases. That law requires that when addressing standards of care, expert witnesses must be in the same medical specialty as the defendant – a neurosurgeon, for example, could not provide expert testimony about the actions of an orthopedic surgeon, emergency room doctor, or family practitioner.
CREC recommended not adopting that by a 24-0-1 vote, but it received only passing mention at the board meeting.
CREC recommended including in evidence rules a third bill on when an out-of-court statement by an elderly or disabled person is admissible in court.
The process around the CREC proposals underscores how it is different from other procedural rule committees.
Other procedural committees – such as civil, probate, or family – can consider rule changes that come from court rulings, legislative actions, Bar member suggestions, and citizen input. CREC only deals with laws passed by the Legislature amending the Evidence Code, which is Chapter 90 of Florida Statutes.
The committee’s function is to recommend to the Supreme Court whether to adopt those amendments to the Evidence Rules to the extent they are procedural. The Board of Governors cannot directly change the committee’s recommendation, it can only make its own suggestions which the committee can heed or ignore.
Another difference comes from how F.S. Chap. 90 is viewed. It functions for both the code and the rules of evidence. Under Florida’s constitution, any substantive matters fall under the jurisdiction of the Legislature in the code, while procedural matters are under the control of the Supreme Court in the rules.
The Code and Rules of Evidence Committee reviews all the legislative amendments to Chap. 90. Even when the bills are completely substantive, the committee typically suggests that the court adopt them as a rule of court to the extent they are procedural to avoid any disputes.
Only rarely has the committee or the board recommended the court not adopt a legislative enactment into the evidence rules. The last time was over a 2011 rule requiring out-of-state experts in medical or dental malpractice cases to obtain a certificate from the Florida Department of Health confirming the expert was licensed in his or her own jurisdiction and be liable to sanctions by the department.
The board ultimately recommended that the court decline to adopt the amendment, only the third time in the past 30 years it had taken that position. The committee had recommended that the court adopt the rule. The court ultimately agreed with the board and declined to adopt the change into evidence rules.
The only other time the court did that since 1976, when the evidence code was enacted, was in 2000 when the court declined to adopt an amendment which allowed depositions to be substituted for live testimony in trials.
For the pending expert witness issues, a web page is available at www.floridabar.org/daubertfrye with extensive information (a Q&A, the board materials, the committee majority and minority remarks, the comments received by the committee in response to the official notice and other relevant materials) and a link to a comment form to provide comments and respond to this question:
Should F.S. 90.702 and 90.704, as amended by Chapter 2013-107, adopting the Daubert standard, be adopted as rules of evidentiary procedure, to the extent they are procedural?
Share your professional view with the Board of Governors using the comment form at /daubertfrye by November 15 at 11:59 p.m. in order for all comments to be compiled and disseminated to the members of the board before the December 4 meeting.
(Krys Godwin, director of the Bar’s Legal Publications Department, which works with the various procedural rules committee, contributed to this report.)
