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Supreme Court replaces Frye with Daubert in evidence rules

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Florida Supreme CourtOn its own authority, the Florida Supreme Court has revisited and reversed its 2017 opinion and approved using the “Daubert” standard in the procedural evidence rules to qualify expert testimony and witnesses in trials.

The May 23 opinion overturned the 2017 opinion which had declined to procedurally adopt the Legislature’s 2013 law making Daubert part of the state’s evidence code (F.S. Chap. 90).

In a separate case in controversy last year (DeLisle v. Crane Co., 258 So. 3d 1221 (Fla. 2018)), the court specifically rejected the Daubert standard and reaffirmed that Florida would continue to follow the “Frye” standard on expert testimony as it has used for decades.

The 5-2 per curiam opinion produced a dissent from Justice Robert Luck, who said the court failed to follow its own rules and procedures in reversing the 2017 opinion without asking for any outside input. Justice Jorge Labarga, part of the 2017 majority, also dissented saying he consider Frye the superior standard for qualifying expert testimony.

“Because of the extensive briefing and arguments on this issue previously made to the Court, and mindful of the resources of parties, members of The Florida Bar, and the judiciary, we revisit the outcome of the recommendation on the Daubert amendments without requiring the [rule amendment] process to be repeated,” the majority opinion said.

The opinion also said the court under Art. V, Sect. 2(a), of the Constitution has the “exclusive rulemaking authority” to make the change and that it was also following the “longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.. . . ”

The majority cited Justice Ricky Polston’s separate opinion in the 2017 rules case that the “‘grave constitutional concerns’ raised by those who opposed the [2013 legislative] amendments to the Code appear unfounded.”

It also noted the U.S. Supreme Court’s 1993 decision that established the Daubert standard for federal courts: “[T]he Daubert amendments remedy deficiencies of the Frye standard. Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’”

In 2017, the majority noted that its declining to adopt the Daubert standard was only procedural and constitutional issues would have to await a case in controversy. The court got that case in 2018 with DeLisle and the same 4-3 majority as in the rules case held that the Frye standard would be retained in Florida.

In the new case, the majority said, “[W]e do not decide, in this rules case, the constitutional or other substantive concerns that have been raised about the amendments. Those issues must be left for a proper case or controversy.”

As for DeLisle, the new majority said that only addressed section 1 of the 2013 law and not section 2, adding, “Therefore, the Court has not determined the extent to which that amendment may be procedural.”

Chief Justice Charles Canady and Justices Polston, Alan Lawson, Barbara Lagoa, and Carlos Muñiz, agreed with the per curiam decision. Labarga and Luck each wrote dissents, and Lawson, joined by Canady, Lagoa and Muñiz, wrote a separate concurring opinion addressing Luck’s dissent.

Luck’s dissent ran almost four times as long as the majority opinion. He said he would find that DeLisle was improperly decided but said the rule matter wasn’t properly before the court.

“First, the majority opinion adopts the amendments to section 90.702 as procedural rules without following our procedure for adopting rules,” Luck wrote. “Second, the majority opinion rests on DeLisle’s erroneous holding that the Daubert amendment is a procedural rule, rather than a substantive law, that can be adopted by the court. Because we must follow our own rules if we expect anyone else to and the Legislature’s Daubert amendment was a substantive change in the law, I reluctantly and respectfully dissent.”

He argued that Rule of Judicial Administration 2.140 sets out the process for amending rules and that the court did not follow that process or qualify for any of the four exemptions allowed in the rule. If the court has the unchecked inherent power to amend the rules, as suggested by Lawson in his concurring opinion, then, Luck said, there is no need for the rule.

He also questioned Lawson’s citing the court’s internal operating rules, particularly Section II.G.1, as authorizing the court to amend its own rules at any time.

“According to Westlaw, no court, including ours, has ever cited this language or any part of section II. Ever,” Luck said. “[S]ection II.G.1. . . does not ‘expressly recognize our inherent constitutional authority to amend our own rules.’ It does not discuss, mention, cite, or refer to article V, section 2(a) or say anything about ‘inherent constitutional authority.’”

If it wanted to readdress the 2013 law, Luck wrote, the court should have requested a fresh report from the Code and Rules of Evidence Committee and recommendation on that report by the Bar Board of Governors and the majority’s actions implies it could reconsider, without fresh input, any previous procedural rule case.

At the core of the Daubert and Frye debate was whether the qualifying of expert witnesses and testimony was a substantive legal issue controlled by the Legislature or a procedural matter that is under the court’s jurisdiction, Luck said, and he argued the majority in DeLisle wrongly decided it is a procedural matter. But he said the majority relied on that part of DeLisle in its new ruling.

The majority “is willing to double down on our mistake in DeLisle by treading on the legislature’s turf and adopting a substantive rule as procedural,” Luck concluded. “I am not. I’d rather fold and wait to play another hand.”

Lawson argued in response to Luck’s dissent that the court had operated properly and followed Rule 2.140 and that the court previously has acted on its own motion to amend rules.

“[T]he Court has had the benefit of Florida Bar recommendations, oral argument, and extensive public comments, pro and con. All that this Court is doing now is reconsidering its earlier administrative (i.e., non-adjudicative) decision not to adopt the proposed Daubert amendments,” Lawson wrote. “Nothing in the text of rule 2.140 prohibits this Court from doing so.”

He also said no other justices or previous court had read Rule 2.140 as prohibiting the court from acting on its own in a procedural rules matter.

The court has routinely adopted evidence code changes as evidence rules to the extent they are procedural, he said, to avoid litigation over whether the changes are substantive or procedural.

“For these reasons, it makes more sense to me to adopt the standard now without readdressing the correctness of this Court’s ruling in DeLisle,” Lawson concluded.

Labarga, in his dissent, argued the previous court had acted correctly in DeLisle in declining to adopt the 2013 evidence code changes as procedural rules, and that Fyre is a better standard than Daubert.

Daubert and its progeny drastically expanded the type of expert testimony subject to challenge. Whereas Frye is limited to ‘new or novel scientific evidence’. . . Daubert applies to ‘all expert testimony [citations omitted],’” Labarga wrote, adding the rules committee feared Daubert would harm the right to a jury trial by limiting pure opinion testimony.

“I agree with the committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts,” Labarga said. “Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case.”

The court made the opinion effective upon its release. It acted in In re: Amendments to the Florida Evidence Code, Case No. SC 19-107.

The 2013 code amendments came after years of efforts in the Legislature, with Frye proponents arguing that Daubert allowed frivolous challenges to established scientific evidence and processes while Daubert proponents contended that Frye allowed junk science into courtrooms.

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