Daubert in Florida: A New Standard for Expert Witness Testimony

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September 9, 2015

brbBy Bart R. Valdes, Esq.

The testimony and opinions of expert witnesses are often a crucial component of a legal dispute.  Often, an expert is required to prove a portion of a client’s case and to facilitate the jury’s understanding of technical or complex issues.  Recently, Florida’s Evidence Code, and specifically § 90.702, Florida Statutes, which sets forth the requirements for expert witness testimony to be admissible, was significantly amended by the Florida Legislature to adopt the “Daubert Standard.”

The Daubert Standard was established in 1993 by the United States Supreme Court in a case known as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  Florida, however, continued to use the “Frye” standard until the Florida Legislature acted in 2013 to adopt the Daubert Standard.  The Florida Legislature expressly amended § 90.702 “to pattern it after Rule 702 of the Federal Rules of Evidence, as amended in 2000 . . . .”[1]  The Florida Legislature made clear that Florida’s adoption of the Daubert Standard intentionally imposes new restrictions on the admissibility of expert testimony. Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 497 (Fla. 3d DCA 2014) (“The legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.”).

Importantly, the Florida Legislature made very specific statements of legislative intent when adopting the Daubert Standard.  The law expressly states it is intended “to prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007).”[2]  Prior to the adoption of this statute, pure opinion testimony, defined as an opinion based solely on an expert’s experience and training, was simply not subject to the Frye standard, and was therefore admissible in Florida.  By expressly departing from Marsh, the Florida Legislature has made it clear that “the Daubert test applies not only to ‘new or novel’ scientific evidence, but to all other expert opinion testimony.”[3]  Accordingly, under § 90.702, “[e]xpert testimony that might otherwise qualify as ‘pure opinion’ testimony is expressly prohibited.”[4]

Florida’s adoption of the Daubert Standard, which imposes a new standard for expert witness testimony, is a procedural amendment and applies retrospectively to all pending cases in Florida courts.[5]  As such, all parties in litigation should take care to ensure that an expert witness’s testimony complies with Florida’s Daubert Standard as set forth in § 90.702.

[1]Ch. 2013-107, § 1, Laws of Fla. (2013).

[2]Fla. H.B. 7015 (Ch. 2013-107).

[3]Perez at 497 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999)) (emphasis in original).

[4]Id.

[5] See Perez at 498.

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