Fla. High Court Rejects Law That Mandated Daubert

By Nathan Hale

Law360 (October 15, 2018, 10:32 PM EDT) -- The Florida Supreme Court ruled Monday that a 2013 law that mandated use of the Daubert standard for screening expert witness testimony infringed on the court's rulemaking authority, and reinstated an $8 million verdict for a mesothelioma patient based on its continued support for the current Frye standard.

Florida's legal community was closely watching cigarette smoker Richard DeLisle's challenge of the Fourth District Court of Appeal's decision reversing a jury verdict against R.J. Reynolds Tobacco Co. and Crane Co. to see whether the state's highest court would abandon the Frye standard, in use since 1980, in favor of the Daubert standard used in federal courts and which the Florida Legislature voted in 2013 to require in state courts.

In upholding the Frye standard, Justice Peggy A. Quince wrote on behalf of the 4-3 majority, "This rule — that expert testimony should be deduced from generally accepted scientific principles — has been the standard in Florida cases and, today, we reaffirm that it is still the standard."

The Frye standard, based on the D.C. Circuit's 1923 decision in Frye v. U.S., calls for a judge to gauge whether to allow expert testimony based only on whether it represents principles that have gained "general acceptance" in their particular field.

In contrast, the Daubert standard, established by the U.S. Supreme Court in the 1993 case Daubert v. Merrell Dow Pharmaceuticals, 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.

The issue came before the high court last year on recommendations from the Florida Bar's Board of Governors and its Code and Evidence Rules Committee to reject the 2013 legislation and return to Frye, following a fierce debate among Florida lawyers.

The justices at the time declined to adopt the statute's amendments to the Florida Evidence Code to the extent it was procedural — solely regulating parties' actions in litigation — but said a decision on the law's merits "must be left for a proper case or controversy."

Monday's majority opinion again based its rejection of the law on its finding that the Legislature infringed on the court's authority to make procedural law and failed to meet a two-thirds threshold in its vote in each house required to repeal rules of the court.

But the justices also cited concerns, touched upon in last year's opinion, that the Daubert standard, which is considered to be stricter but also costlier, as it tends to require lengthy, technical hearings, would undermine the right to a jury trial and inhibit access to the courts.

Justice Barbara J. Pariente elaborated on these issues in a concurring opinion, in which she noted that experts have cited defendants exploiting the Daubert requirements as a "sword" against plaintiffs.

"While the impact on the workload of the trial courts or the difficulty in finding a lawyer should not be the sole consideration for determining whether a rule of procedure should be adopted, if adoption of the rule is at the expense of litigants' constitutional right to access the courts, then the impact on the workload provides a compelling reason to reject the rule," Justice Pariente said.

Chief Justice Charles A. Canady argued in the dissenting opinion, which was joined by Justices Ricky Polston and C. Alan Lawson, that the case did not present an actual jurisdictional conflict.

"Never before have we exercised conflict jurisdiction on the ground that a case applies a statute that displaces previously existing law. The majority thus charts an unprecedented and ill-advised course that would expand this court's conflict jurisdiction to encompass every case in which a district court applies a statute that has changed a legal rule in any area of the law," he said.

In the underlying case, DeLisle won an $8 million jury verdict against R.J. Reynolds and Crane for mesothelioma that he claims was due to exposure from R.J. Reynolds cigarette filters and Crane gaskets. But the Fourth District, applying the Daubert standard, overturned the verdict, ruling that testimony from physicians James Crapo and James Rasmuson, who linked asbestos to mesothelioma, should have been blocked because the trial court did not have enough information to approve or disapprove them.

In Monday's decision, the majority said the trial court properly admitted the expert testimony because causation of mesothelioma is not new or novel science, so it is not subject to Frye analysis. It also applauded the trial court for heeding its caution to "resist the temptation to usurp the jury's role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views."

Counsel and representatives for the parties did not immediately respond to requests for comment Monday.

William Large, president of the Florida Justice Research Institute, an organization founded by the Florida Chamber of Commerce that filed an amicus brief in support of R.J. Reynolds and Crane, backed the minority argument that the high court should not have heard the case.

"The majority has completely misapplied conflict jurisdiction. This was a new statutory standard that became effective after the previous line of Frye case law. A case decided on the basis of a new statute can't be in conflict with case law that predates the Daubert enactment," Large said.

Crane is represented by William J. Simonitsch of K&L Gates LLP.

R.J. Reynolds is represented by Elliot H. Scherker, Sabrina R. Gallo, Julissa Rodriguez, Brigid F. Cech Samole and Stephanie L. Varela of Greenberg Traurig LLP.

DeLisle is represented by Gary M. Farmer Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman PL, and James L. Ferraro and David A. Jagolinzer of the Ferraro Law Firm PA.

The case is DeLisle v. Crane Co. et al., case number SC16-2182, in the Supreme Court of the State of Florida.

--Additional reporting by Carolina Bolado. Editing by Breda Lund.

 All Content © 2003-2018, Portfolio Media, Inc.

https://www.law360.com/articles/1092469