Growing Pains: The Story Behind Florida’s Daubert Arc – Part 3


You can find the first two parts of this story here and here.

In 2013, spurred by the decisions in Marsh and Hood, the Florida Legislature amended F.S. 90.702 to mirror Federal Rule of Evidence 702. In a preamble to the final bill, the Legislature expressed its intent to (1) adopt the standards set forth in the U.S. Supreme Court’s Daubert trilogy and (2) prohibit “pure opinion testimony as provided in Marsh…”

The Plaintiff’s Bar Parries

Ordinarily, this definitive a legislative adoption of Daubert and rejection of Frye and pure opinion would be the end of the story. But Florida plaintiffs’ lawyers immediately mounted a challenge to the amendment based on the separation of powers provisions of the Florida Constitution, and they had a liberal and receptive Supreme Court.

Under the Florida Constitution, Article V, § 2(a), the Legislature has full authority to enact substantive laws but the Florida Supreme Court retains authority to adopt rules of procedure governing the administration of the courts. The challenge to the amendment argued that rules of evidence are matters of procedure; therefore the amendment would be effective only if it were adopted by the Supreme Court; and it should not be adopted because Daubert was impractical, expensive, interfered with access to the courts in tort cases, and was otherwise an inferior and unfair standard.

Before the Supreme Court considered whether the rule was procedural or substantive, and if procedural, whether it should be adopted, defendants began to deploy the amendment in the trial courts. The initial issue litigated was whether the amendment was retroactive, i.e., applied to cases pending when the statute became effective. A defendant seeking retroactive application of the amended rule had to argue that the rule was procedural. For example, in another Zicam smell-loss case, the defense argued the Daubert standard applied and supported exclusion, resulting in a summary judgment. On appeal, the same District Court of Appeal that decided Hood held that the rule was procedural and affirmed its retroactive application. Bunin v. Matrixx Initiatives, Inc., 197 So.3d 1109 (Fla. 4th DCA 2016). The Florida Supreme Court denied plaintiff’s Petition for Review. [Disclosure: The author was defense counsel in Bunin.]

The Supreme Court Decides

In 2017 the Florida Supreme Court exercised its rulemaking authority to consider the Daubert amendment and its propriety. In re Amendments to Florida Evidence Code, 210 So.3d 1231(Fla. 2017). The Court decided it would not adopt the Daubert standard “to the extent it was procedural” because the Court had “grave constitutional concerns” based on Daubert’s impact on rights to a jury trial and access to the courts. However, the Court reserved final decision on the constitutional issues and the procedural nature of the rule for an appropriate case or controversy. The waiting on Daubert’s ultimate fate continued.

The wait ostensibly ended in October 2018 when the Supreme Court decided DeLisle v. Crane Co., 258 So.3d 1221 (Fla. 2018). A divided (4-3) Court held that the statute was indeed procedural, it conflicted with Marsh and therefore it violated Article V, § 2(a) of the Florida Constitution by infringing on the Court’s rulemaking authority.

The Court thus, seemingly definitively, “reaffirm[ed] that Frye, not Daubert, is the appropriate test in Florida courts.” It had no need to consider the substantive constitutional issues – its “grave, constitutional concerns.” A concurring opinion (two justices) did conclude the amendment “has the potential to unconstitutionally impair litigants’ right to access the courts in civil cases.” This, alas, appeared to be the death knell for the Daubert amendment.

But a funny thing happened on the way to the funeral pyre.

The Supreme Court Gets a Makeover and Changes Its Mind

On May 23, 2019, Daubert rose from the flames like a phoenix. In January 2019 three of the justices in the DeLisle and 2017 rules decision majorities reached mandatory retirement age and were replaced with more conservative justices. The reconstituted Supreme Court, on its own initiative, revisited the adoption issue based on the record generated in the 2017 rulemaking proceedings and reversed course; or, as the Court put it, “receded” from its 2017 rules decision, 5-2. The Court validated the amendment by adopting it. The “grave constitutional concerns” that motivated the prior decision were now seen to be “unfounded.” The Court noted that it was not adjudicating the substantive constitutionality of the statute (i.e., access to justice and right to jury trial issues), as “these issues must be left for a proper case or controversy.” The separation of powers problem, however, disappeared with the Court’s adoption of the procedural rule.

The Court explained why it viewed Daubert as the superior standard. First, it covered more ground. Daubert applied to all scientific testimony rather than only new or novel scientific techniques, and it addressed relevance and reliability rather than merely looking for general acceptance. Consequently, it filled the large gaps that plagued the Frye standard. Second, it advanced public policy in several ways – promoting consistency between state and federal courts and fairness and predictability in the legal system, and discouraging forum-shopping.

In light of this tortured history, it is perhaps hazardous to “close the book” on this chapter of the Frye-Daubert tussle in Florida and declare victory in the war against junk science. There can be no doubt that the expert admissibility regime in Florida has had a difficult childhood and an even rougher adolescence. It seems to have reached a good place, but, with apologies to the Grateful Dead, the road to Daubert in Florida has truly been a long, strange trip.

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