The Florida Supreme Court didn't seem quite ready Tuesday to officially adopt the Daubert evidence standard five years after the state Legislature wrote the rule change into law.

During oral argument in DeLisle v. Crane, the court's more conservative justices questioned whether plaintiffs attorneys brought the right case to challenge Daubert, which asks trial judges to ensure admitted scientific evidence is relevant and reliable. The liberal-leaning justices fretted about the standard's potential effect on plaintiffs compared with the Frye test, which asks whether new or novel evidence is based on generally accepted science.

Justices Charles Canady and C. Alan Lawson grilled Miami attorney Jim Ferraro, who sought to reinstate an $8 million asbestos verdict his firm won for Richard DeLisle. The award was overturned in 2016 when the Fourth District Court of Appeal in West Palm Beach found some of the plaintiff's expert testimony did not meet the Daubert standard.

The standard is used in federal courts and most state courts.

Canady said he was “struggling” to find a conflict that would establish the high court's jurisdiction in the case. Ferraro argued the conflict was the Fourth DCA's application of Daubert even though the standard had not been adopted by the Florida Supreme Court.

“Our conflict jurisdiction is not about a conflict between a statute and an earlier version of the law,” Canady said. ”It's about conflict between courts. … I cannot follow the workings of your mind on this issue.”

The respondents were right in line with Canady on that point.

“I'm fairly certain there will be a case that will be developed that will bring and preserve these issues to the court,” said Richard Doran of Ausley McMullen in Tallahassee, who represented respondent Crane Co. “This is not the case.”

JURY FUNCTION

But other justices had questions for Doran and Greenberg Traurig attorney Elliot Scherker, who represented the other respondent, R.J. Reynolds Tobacco Co.

Justice Barbara Pariente worried the Daubert standard could allow a trial judge to “usurp the jury's function” by excluding expert testimony, especially considering R.J. Reynolds' own documents said certain cigarettes released asbestos in the early 1950s when DeLisle smoked them.

“Was this testimony so fallacious that the jury would not be able to evaluate the solidity of the expert opinions on causation?” Pariente asked.

Scherker said the documents showed no more exposure to asbestos than in the air on an average day in New York City in 1954. The excluded plaintiffs expert testimony relied on a methodology that was not peer reviewed and wouldn't even have passed the Frye test, he added.

“The line between Daubert and Frye is exceedingly thin,” Scherker said. “With apologies to Gertrude Stein, junk science is junk science is junk science.”

Pariente said she had “trouble” finding DeLisle's case relied on junk science because of years of studies linking asbestos exposure to mesothelioma.

“There's no question that for 50-plus years, the product asbestos in different forms is the primary reason that individuals develop the disease that Mr. DeLisle had,” she said. “So when we're talking about junk science or whatever, there are plaintiffs, there are individuals all over the country who become sick and die because of this product.”

Doran argued DeLisle's attorneys did not meet the burden of showing he was exposed to disease-causing levels of asbestos in Crane's products during a factory job: “Nobody captured the dust cloud” and measured the amount of asbestos in it, he said.

Justice R. Fred Lewis worried about plaintiffs carrying a heavy burden of proof, especially when it comes to determining the level of asbestos that causes harm.

“Let's just separate all this talky-talk,” he said. “That's just contrary to common sense that we're going to do experiments on humans with toxic substances.”

Last year, the court declined to adopt the Daubert amendment, finding a rule change would raise constitutional concerns that “must be left for a proper case or controversy.”