Bruce Liebman, Florida Co-Managing Partner of Kaufman Dolowich & Voluck in Fort Lauderdale, left, and Kevin Yombor, attorney with the firm’s Fort Lauderdale office, right.

On May 23, the Florida Supreme Court, bucking decades of jurisprudence, announced that Florida courts would utilize the Daubert standard when evaluating the admissibility of expert testimony. With this ruling, Florida joins the majority of states and the federal judiciary in utilizing the Daubert standard. The Daubert standard allows the court to function as a “gate keeper,” determining whether the proffered expert is qualified to provide expert testimony.

This likely brings to rest nearly six years of confusion as to what expert evidentiary standard would apply in Florida. In deciding In re Amendments to Florida Evidence Code, Case No. SC19-107 (Fla 2019), the Florida Supreme Court abandoned its decisions in DeLisle v. Crane, 258 So. 3d 1221(Fla. 2018) and In re Amendments to Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017), upholding the Frye standard.

How Did We Get Here?

Prior to 1993, the Frye standard was the prevailing standard for admitting expert testimony, see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In 1993, following a revision of the Federal Evidence Code, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which set forth a new standard for admitting expert testimony. This new standard was to be more flexible, focusing on scientific principals and methodology, as opposed to the expert’s conclusions. Florida continued to adhere to the Frye standard.

In 2013, Florida Legislature rejected the longstanding Frye standard, and adopted the Daubert standard by amending Florida’s Evidence Code to mirror Federal Rule of Evidence 702. In 2017, the Florida Supreme Court “declined to adopt, to the extent they are procedural, the changes to Sections 90.702 and 90.704 of the [Florida] Evidence Code made by the 2013 Daubert Amendment,” see In re Amendments to Florida Evidence Code, 210 So. 3d 1231, 1237 (Fla. 2017). Then, on Oct. 15, 2018, the court held that “Frye, not Daubert, is the appropriate test in Florida courts” for determining the admissibility of expert testimony, see DeLisle v. Crane, 258 So. 3d 1221, 1229 (Fla. 2018).

How Does This Impact Litigation?

This will likely result in litigation costing more money because of more motion practice. The Frye standard only applied to “new or novel” opinions. Whereas with Daubert, the standard applies to all expert witnesses to determine if the expert’s opinions are relevant and reliable. As such, it is anticipated that more parties will challenge the admissibility of expert opinions.

Under Frye, expert testimony was allowed to go before the jury where the methodology was generally recognized in that expert’s community. It was the jury’s role to evaluate and determine if the expert’s methodology was being properly applied. Under Daubert, however, the trial court examines both the expert’s methodology and the application of the methodology before allowing the jury to hear an expert’s opinion.

With Florida courts already overburdened, this change will likely result in protracted and more expensive litigation. Not just on individual cases, but on the totality of the court’s docket. This change will be most significant, however, on cases where the viability of the claim depends upon expert opinions on causation, such as complex commercial litigation, wrongful death and severe personal injury.

A byproduct of this change, though, may be that parties are less inclined to remove cases filed in Florida to federal court. Previously, some parties found it advantageous to litigate in federal court because the Daubert standard. Adopting Daubert eliminates this divergence between Florida and federal courts. This change may also result in more predictable legal outcomes.

How Do We Apply ‘Daubert’?

Florida Statute 90.702, which governs testimony by experts, mirrors the language of Federal Rule of Evidence 702. Therefore, evaluating U.S. Court of Appeals for the Eleventh Circuit case law concerning Daubert may be instrumental in evaluating how Florida courts will interpret and apply Daubert.

In Cook ex rel. Estate of Tessier v. Sheriff of Monrow County, Florida, 402 F.3d 1092, 1107 (11^th Ci. 2005), the Eleventh Circuit set forth a three-part inquiry to consider the admissibility of expert testimony: The expert is qualified to testify competently regarding the matters he intends to address; the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

While this three-part test is instructive, it should not be considered exhaustive. Ultimately, it will be up to the moving party seeking to exclude an expert witness’ testimony to demonstrate that the expert witness is either not qualified to render an opinion; or the expert’s opinion is not relevant and reliable.

In responding to Daubert exclusion or disqualification motions, it will be critical to explain to the court the expert’s methodology and why it is inherently reliable. To be admissible, not only will the methodology used by the expert need to be reliable, but also the application of that methodology will need to be both appropriate and of assistance to the jury in appreciating the evidence. Failure to argue both may result in your expert being needlessly excluded.

Bruce S. Liebman is co-managing partner in the Fort Lauderdale and Tampa offices of Kaufman Dolowich & Voluck. He practices in the areas of labor and employment law, representing management before federal and state agencies and in federal and state court. Liebman may be reached at [email protected].

Kevin Yombor is an associate in the Fort Lauderdale office of the firm where he focuses his practice on premises liability, commercial, professional liability (including directors and officers, attorneys, accountants, architects engineers, and design professionals), labor and employment, data privacy, insurance coverage, bodily injury, automobile negligence, bad faith, products liability and wrongful death litigation. Yombor can be reached at [email protected].