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Fla. Attys Lock Horns Over New Expert Witness Standard
By Nathan Hale

Law360, Miami (October 16, 2015, 8:29 PM ET) -- The Florida Bar is in the midst of fierce debate over a change in state courts’ standard for the admissibility of expert testimony, with plaintiffs and defense attorneys at odds over whether the new standard unduly burdens plaintiffs or keeps junk science out of the courtroom.

On Friday, the bar’s board of governors tabled a vote on a measure, backed by the state’s powerful plaintiffs bar, that seeks to overturn the Florida Legislature's 2013 passage of a law replacing the one-factor Frye standard with the more widely used Daubert standard. Defense attorneys favor the Daubert standard because they say it provides more reliable evidence, but plaintiffs attorneys say it overtaxes the underfunded state court system and threatens clients of lesser means.

The recommendation by the Code and Rules of Evidence Committee to move forward with the measure had initially appeared headed for passage, but a majority of members decided to hold off until Dec. 4 to give them more time to consider an issue that has elicited significant input.

“It's a very important issue, and it affects so many areas of the practice,” board of governors member Michelle Suskauer, who moved for the deferment, told Law360 on Friday.

A criminal defense attorney based in West Palm Beach, Suskauer noted that attorneys John Wayne Hogan of Terrell Hogan and David Arthur Jones of Holland & Knight LLP, who represented the committee's majority and minority on the matter at Friday's meeting, said a seven-week delay would not have a detrimental effect in the long term.

The law at issue, which took effect on Oct. 1, 2013, approved use of the Daubert standard, which has been used in federal courts for more than 20 years and been adopted in some form by the majority of the states, but the Florida Supreme Court has final say in setting the Florida Evidence Code for procedural rules.

The Florida Bar's Code and Rules of Evidence Committee took up a review at the court administration's request. Its chair said ahead of Friday's meeting that he expected the board of governors would affirm the committee’s findings and that the high court would issue a ruling.

“It's a big issue, and it's a very sensitive matter,” Peter Sartes II of Tragos Sartes & Tragos PLLC said. “I would be surprised if we do not receive some guidance from our Supreme Court.”

The Frye standard calls for a judge to gauge whether to allow expert testimony based only on if it represents principles that have gained "general acceptance" in their particular field, but the Daubert standard says a witness may testify as an expert in a particular field only if the testimony “is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case,” according to the Florida legislation.

Case law has also established that Frye applies only to novel scientific techniques, whereas Daubert has been applied to all expert testimony.

Attorneys on both sides of the debate noted that while the Daubert standard may appear more stringent on its face, it actually originated from a U.S. Supreme Court ruling that allowed expert testimony excluded under Frye.

Practical application of the Daubert standard, however, typically requires judges to hold special hearings to make the required determinations, prompting critics to complain that it adds undue burden to overtaxed courts and could be abused by parties to stall or drive up costs against clients of lesser means.

Opponents have also held that the Florida Legislature overstepped its authority under the state constitution by passing what they say is a procedural measure.

“The introduction of Daubert was an attempt to 'fix' a system that wasn't broken,” Brian R. Denney of Searcy Denney Scarola Barnhart & Shipley PA told Law360. “The Daubert standard will increase the burden on an already underfunded court system by adding to the workload of the courts and the lawyers that are attempting to achieve justice for their clients. This will, in the end, increase client costs and delay the determination of justice.”

Meanwhile, proponents of Daubert have touted it as a more modern standard that favors neither side and keeps “junk science” from reaching the stand.

“At the end of the day, the Daubert standard allows a judge to act as a gatekeeper to ensure that sound science and methodology are behind the expert witness opinion,” said William Large, executive director of the Florida Justice Research Institute, an organization founded by the Florida Chamber of Commerce.

The process to review the measure so far has been a lengthy one. The Code and Rules of Evidence Committee conducted roughly a year of review and analysis, which included a request for public comment that resulted in nearly 500 pages of letters, articles and case law being compiled.

The committee's opinion shifted, too, as two straw polls of its members taken in late 2013 produced votes strongly in favor of the Daubert standard, but the final vote in October 2014 came down 16-14 in opposition to adoption.

That change in opinion only added to the controversy, with suggestions from some corners that the state's powerful plaintiffs bar, particularly personal injury attorneys who made up a large part of the submitted opposing comments, had recognized the situation and made efforts to stack the committee.

“They're like the Tea Party in the Republican Party — a small vocal group that has taken over the process,” said Mark Delegal, a partner at Holland & Knight LLP. “It's self-interest, is what it is.”

 Seth Miles, a partner at Grossman Roth PA, said he suspected such claims are an effort to build prejudice and said that personal injury attorneys' involvement is not surprising because of the amount of time they spend in trials and their clientele.

“We're the guys on the ground and with clients most susceptible to harm,” he said.

Sartes, whose firm handles a mix of plaintiff and defense work, was also resolute in saying that is not the way the committee works. He said the change in opinion came as a result of the committee's hard work and research, when questions of the Daubert standard's constitutionality in Florida and potential practical effects came to light.

If the board of governors approves the committee’s recommendation at its next meeting in Naples, the issue will go to the Florida Supreme Court, which can choose to issue a ruling based on the committee's findings or possibly with the assistance of oral arguments, or it could choose to take it under advisement and await a test case.

 http://www.law360.com/articles/714196/fla-attys-lock-horns-over-new-expert-witness-standard