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Orlando Sentinel

Don't drop Florida standard for experts: Where we stand

We agree with legislators who want to keep the higher standard for testimony from experts in Fla. courts.

May 11, 2016

It sounds like a technical issue that only lawyers would care about, but all Floridians — because any of us could wind up in court someday — have a stake in a dispute over what standard to apply to testimony from expert witnesses in state courts.

State legislators passed a bill in 2013 to raise the standard for admitting expert witness testimony to the same one, known as Daubert, used in federal courts. The House sponsor of the bill, Republican Rep. Larry Metz, is a Lake County lawyer. But leaders in The Florida Bar, the state lawyers' organization, have recommended that the state Supreme Court bring back the previous standard, known as Frye. The court has fielded comments on both sides and is scheduled to hear oral arguments later this year.

Justice would be best served if the court upholds the will of the Legislature and keeps the more stringent standard.

This issue is widely viewed as a battle between businesses and plaintiffs' lawyers. Businesses, often the target of lawsuits, favor Daubert to exclude "junk science" from expert witnesses for their opponents. Plaintiffs' lawyers, on the other hand, contend that hearings associated with applying the higher standard delay cases and raise legal costs, which restricts access to the courts for their clients.

But many criminal defense lawyers and public defenders are on the same side as business in this battle. They argue testimony that could put their clients behind bars, or even on death row, should be held to a higher standard. It's a compelling argument — especially in light of some notorious convictions in Florida, later overturned, based on the testimony of dubious "experts."

Florida was among a minority of states still using Frye, which originated in 1923, when legislators replaced it with the newer Daubert standard in 2013. Daubert is not only used in federal courts, but also in some form in 35 states — which would make Florida an outlier if it reverted to Frye.

Daubert establishes a three-part test for judges to evaluate whether expert testimony is admissible in court. Is it "based upon sufficient facts or data"? It is the "product of reliable principles and methods"? Has the witness "applied the principles and methods reliably to the facts of the case"? The Frye standard, by contrast, essentially applies just one test: Does the testimony represent principles that have gained "general acceptance" in their field?

One of the principal arguments of Daubert opponents — that it would burden Florida courts with costly hearings over expert testimony — has not been borne out since the state adopted the standard, according to Metz. He's well qualified to deliver that assessment as chairman of the House subcommittee that oversees court spending.

"In my conversations with trial judges, none of them reported an excessive number of Daubert motions filed in their courts since 2013," Metz wrote in an April 1 comment filed with the Supreme Court. And neither he nor his staff received any requests for additional funding "related to the cost of implementing the Daubert standard," he added.

The Legislature's Republican leaders, frustrated by multiple setbacks in Florida's courts, have made numerous attempts in recent years to retaliate. We strongly opposed those impulsive attacks on judicial independence.

The switch to Daubert doesn't belong in the same category. Legislators debated it for several sessions before they voted to adopt the higher standard.

Raising the bar for testimony from expert witnesses is an achievement. It deserves the high court's blessing.