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Court hears Daubert, Frye oral arguments

Senior Editor Regular News

Court hears

Daubert, Frye

oral arguments

Senior Editor

Two issues were before the Supreme Court when it heard arguments September 1 on amendments to the Rules of Evidence.

One was should it incorporate into the Rules of Evidence the Legislature’s 2013 law that changed the standard for expert testimony in court cases from the Frye standard used in Florida to the Daubert standard used in the federal courts. The second was whether such a change is a substantive policy matter that properly falls to the Legislature or whether it is a procedural matter under the jurisdiction of the court.

The Code and Rules of Evidence Committee, which advises the court on evidence matters, had recommended 16-14 against adopting the change the Legislature made to the evidence code in F.S. Chap. 90 imposing the Daubert standard. By a 33-9 vote, the Bar Board of Governors endorsed that position.

Proponents of Daubert argue that the Frye standard allows “junk” science into cases and Daubert is a much higher scientific standard. Frye proponents say Daubert requires relitigating the same issues over and over in case after case, wasting court resources and raising costs for clients.

“It has become a tactical tool and the tactical tool has become the norm. The tactical tool causes layer upon layer of wasted time and cost,” said former Bar President Howard Coker, who argued against the Daubert standard on behalf CREC. “The Daubert motions can create undue burdens on the courts.. . . Judges are put in the position of deciding factual issues that should be left to the jury. It puts the judges in the position. . . of being amateur scientists.”

Coker said he has been a trial attorney for 44 years, taking 300 to 400 cases to juries, and until the Daubert law passed in 2013, challenges to expert testimony was rare. Now it happens routinely, and, in one case, Coker said he had four Daubert hearings taking up four days and adding about $40,000 in costs to the case. He also said one judge holds Daubert hearings on Saturdays outside of the courtroom to handle the burden and save the costs of opening the courtroom.

The result is lawyers will decline to take many otherwise worthy cases because of the expenses, he said.

Justice Barbara Pariente questioned whether the court should reject adopting Daubert as a rule, because it is not actually passing on the constitutionality of the rule, which it would do when a case in controversy reaches the court.

“The court could not have adopted Frye if the matter were not procedural, because the power of this court is to adopt rules and practice for the court procedural rules. The court did adopt it at that time in Stokes [Stokes v. State, 548 So.2d 188, 195 (Fla. 1989)] and time and time again has maintained that that procedural rule stays in place for the handling of new science,” said Wayne Hogan, a member of CREC. “The court did adopt it and adhered to it over the years, because of its need to avoid, its desire to avoid extremely expensive and time-consuming procedures for testing these.”

But Pariente said those decisions could be seen as law and evidentiary issues, not procedural matters.

“To say we have pronounced that as procedural, I don’t see that,” she said.

John Morrison, representing the Florida Public Defender Association, urged the court to accept Daubert in the Rules of Evidence. In response to a question from Justice Pariente, he said it has more substantive than procedural effects.

“If procedure and substance is ‘what’ versus ‘how,’ what Daubert is a decision of what is good science. Is it the knowledge of the wise people, the general acceptance of the field? That’s Frye. Or is it reliable scientific methodology, reliably applied with sufficient data? I think that is a what question, and I think to that extent the Legislature was correct to enact Daubert, and I would ask this court to enact the rest of it as procedural,” Morrison said.

Specifically, in criminal cases, he said, it would promote reliance on more scientifically reliable evidence.

Rep. Larry Metz, R-Groveland, who spearheaded the passage of the 2013 legislation, said it has not caused the problems cited by Coker and Hogan in the federal courts or in other states that have adopted the Daubert standard.

“The notion or argument that we’re going to have Daubert hearings in every case, even the simple garden variety case. . . is just misplaced.. . . I don’t think lawyers are going automatically to file Daubert motions just because they can,” he said. “This is an important public policy choice, and we shouldn’t be experimenting with this very important issue.”

While Pariente questioned whether trial judges have the staff attorneys needed to handle a Daubert motion, Metz said in the past three years no request has been made of lawmakers for additional court resources because of the new law.

Metz recalled as a young lawyer seeing a sign in a courtroom that said, “We who labor here seek only truth.” He added, “That is the purpose of the Daubert bill that we ran. It was to provide a greater standard of reliability for expert testimony in the Florida courts so we can get to the truth of these cases.”

In his rebuttal, Hogan, though, said the bill will have a different result.

“This court specifically said it was adopting Frye to avoid an extremely time-consuming and expensive process,” he said. “It [Daubert] is going to deny people access to the courts.”

Underscoring the interest in the issue was the reaction to the law and the committee’s action recommending it not be included in the Rules of Evidence. The court received more than 180 comments on the proposed rule change. The Code and Rules of Evidence Committee appeared to easily exceed that number of comments, running nearly 500 pages. The court responded by extending the time for oral arguments from the normal 40 minutes to 60 minutes.

Before it voted, the Board of Governors sought input from Bar members and 668 responded, with 68.3 percent expressing support for the Frye standard.

An afterthought at the hearing was another law passed by the Legislature in 2013 and which CREC and the Board of Governors also recommended the court not adopt into the evidence rules. That law provided that, in medical malpractice cases, experts had to be in the same specialty as the defendant doctor.

“The amendment violates this court’s rulemaking authority unconstitutionally,” said Andrew Hamilton, representing CREC. It also contravenes the evidence rule in F.S. §90.702 and “would force trial courts to exclude experts who otherwise would be qualified to render testimony based on their knowledge, skill, training, education, and experience.”

CREC occupies a unique position among the various Bar rules committees. Other committees focus on making procedural rules for specific areas, such as family, civil, or criminal law that are distinct from the respective statutes. CREC deals with the evidence code in F.S. Chap. 90. This statute is considered to have two interpretations: substantive that falls under the purview of the Legislature and procedural that is under control of the Supreme Court, yet the text is identical.

The committee reviews legislative enactment of amendments to the code and generally recommends the court approve those changes to the extent they are procedural to avoid litigation over those issues. When the committee does not recommend that action, it is generally because the committee believes the Legislature has crossed the boundary from substantive to procedural issues.

The vote on the Daubert/Frye issue was one of the few times in the past three decades that CREC has voted against recommending that a legislative change to Chap. 90 be adopted as an evidence rule to the extent it is procedural.

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