On October 15, the Florida Supreme Court made a ruling on Delisle v. Crane, which effectively clarified how Florida courts will handle the admissibility of expert witness testimony. In a 4-3 decision, the Court moved Florida away from the Daubert standard, utilized by the Federal Courts and most states, back to the Frye standard. Florida had previously used Frye until a 2013 change in the Florida Statutes made by the state Legislature.
Under the Frye standard, in order to determine reliability, the procedures, principles, and techniques presented by an expert witness must be interpreted by the court as being “generally accepted” by a meaningful segment of the professionals in an expert’s field. Under the Daubert standard, the expert’s method does not have to be “generally accepted” as it does in Frye, instead requiring the court to evaluate the reliability of the methods underlying the expert’s testimony.
Both Daubert and Frye have their strengths and weaknesses. The Frye standard allows the court to rely on sufficiently established principles within the expert’s field to act as a guide to admissibility. This grants the judge the ability to stick to simple criteria as to what to allow. However, this simplicity presents a few drawbacks. One is that since the court is relying on these principles without a deeper dive into the methodology, it is possible for “junk science” to make its way into the proceedings. That puts the onus on the jury to determine the validity of the expert’s methodology. As the members of the jury are not experts in the given field, they may have difficulty in making an informed decision. Another drawback is that newly established methods, by definition, would not be admissible, as there would not be enough peer review, even if the principles were otherwise sound.
The Daubert standard, as previously used in Florida, requires the court to evaluate the reliability of the science underlying the expert’s testimony rather than rely on established principles accepted in the expert’s field. This allows testimony to be admitted as long as:
1) The testimony is based upon sufficient facts or data;
2) The testimony is the product of reliable principles and methods; and
3) The witness has applied the principles and methods reliably to the facts of the case.
Since there is no requirement for the methods to be “generally accepted” by the professionals in the expert’s field, new methods that have not had to opportunity to undergo the rigor of peer review can be admissible as long as they meet the above criteria. However, putting the onus on the court to be the gatekeeper in determining reliability creates its own set of problems. Judges are experts on the law, not medical procedures, construction defects, or the like. So asking judges to possess the shrewdness to determine if methodology of a field of which they may have no prior knowledge is quite a big ask. In addition, the opposition can dispute the methods used by experts. This has a tendency to create lengthy and technical Daubert pre-trial hearings seeking to exclude testimony, putting additional strain on the court and the parties involved. In the past, defendants have exploited Daubert requirements to put pressure on plaintiffs to settle for lower amounts or abandon claims due to the costs of these seemingly endless hearings.
So back to Florida. In 2013, the Florida Legislature passed a bill modifying Florida Statute Section 90.702, which pertains to testimony by experts, to adopt the Daubert standard. However, Article V, Section 2(a) of the Florida Constitution states “[t]he supreme court shall adopt rules for the practice and procedure in all courts… Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature”. While the Senate met the two-thirds threshold with a 30 to 9 (75%) vote, the house passed the bill with only a majority, 70 to 41 (58%), and therefore did not meet the requirements. This left confusion in the court system as to which standard applied, but courts went with the Statute and started using the Daubert standard. Delisle v. Crane cleared up the confusion.
Delisle v. Crane was a mesothelioma personal injury case that Richard Delisle filed against multiple defendants. He claimed that each defendant had exposed him to asbestos, which led to his disease. Causation was disputed and both sides challenged the other’s expert opinions under Daubert. The court admitted each opinion and the jury awarded Delisle $8 million in damages. The decision was appealed to the Fourth District and the court reviewed the admission of the expert testimony under Daubert. They ruled the lower court failed in its gatekeeping function by allowing some of the testimony into evidence and reversed the ruling. Upon review, the Florida Supreme Court determined “[t]he expert testimony in this case was properly admitted and should not have been excluded by the Fourth District” and “that the Daubert amendment ... has the potential to unconstitutionally impair civil litigants’ right to access the courts.” They also ruled that in 2013 the Legislature had overstepped their bounds and acted unconstitutionally by changing the Statute, which effectively changed procedural rules of the court without the two-thirds vote required by the Florida constitution.
So what does all this mean for expert witnesses and attorneys? First, it will cut down on the pretrial hearings and motions in liminie since challenges cannot be made to expert testimony on the grounds of methodology if it is “generally accepted” in the field. Most likely, this change will result in more expert witness testimony being allowed into litigation, as the time and cost barriers created by responding to the hearings and motions from the defense will be removed. The changes will also increase the level of uncertainty in trial outcomes, as now it will be up to the jury, not the court acting as gatekeeper, to determine if an expert’s testimony is based on sound methodology. It now becomes imperative that a counsel’s experts not only have a rock solid approach as to how they came to their conclusions, but also be articulate enough to explain them to the jury in a way that is easily understood.