The state of Florida’s highest court rejected a 2013 law meant to bring the expert witness standard used in the state more in line with other states, according to the Daily Business Review. The Supreme Court of Florida (SCFL) found that the law overreached into court territory.

Daubert versus Frye

The Frye standard is commonly referred to as the “general acceptance test.” In short, scientific methods that are generally accepted are admissible in court; scientific methods that are not – i.e., on the fringe or not sufficiently established – are not admissible in court. It is named after a 1923 decision Frye v. United States.

Under Daubert, when scientific testimony is offered, the court is required to determine whether or not the testimony is based on scientifically valid reasoning or methodologies. It must also assess whether or not the testimony may be properly applied to the issue in question. Daubert uses a five-part test as a guide for courts to determine admissibility, including:

● Whether a theory or technique can be and has been tested;
● Whether the theory or technique has been subject to both peer review and publication;
● The known or potential error rate of the method;
● The existence and maintenance of standards controlling its operation; and
● Whether it has attracted widespread acceptance within the relevant scientific community.
Daubert is a more flexible standard than Frye, allowing for cross examination, introduction of contrary evidence, and the court’s instruction regarding the burden of proof. Daubert is named after a 1993 court decision, Daubert v. Merrell Dow Pharmaceuticals.
The Florida Supreme Court’s Decision

The 4-3 decision overturned a ruling by the Fourth District Court of Appeal and ordered reinstatement of a multi-million dollar verdict. The SCFL reinstated a $8 million verdict for a plaintiff, Richard DeLisle, who claimed his mesothelioma was due to exposure to asbestos in cigarette filters as well as workplaces. Justice Peggy Quince, who wrote the decision for the majority, noted the state’s adherence to the Frye standard was set in a 1923 United States Supreme Court (SCOTUS) decision.

The legislature attempted to impose the Daubert standard came shortly thereafter in 41 states and federal courts. The change in the standard was opposed by plaintiff’s attorneys but backed by business groups and the Republican-controlled legislature.

According to the SCFL, the question of what expert witness standard applies is for the court alone to decide. Under separation of powers, the Court reasoned, the legislature has authority over substantive law while the judiciary is responsible for procedural standards. Justice Quince was joined by Justices Pariente, Labarga, and Lewis.

Chief Justice Charles Canady, joined by Justices Polston and Lawson, found the court lacked the legal jurisdiction to decide the matter because there was no conflict among the district courts.

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