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Senate panel rewrites changes to expert testimony rules

02/29/12

A Senate panel on Wednesday rewrote the bill (SB 378) that changes the state's standards for expert testimony in court cases, placing it at odds with the version passed last week by the House.

The original measure would replace the current standard, which requires that expert testimony be based on methods that are generally accepted in the experts' field of study, with the three-prong standard of evidence established in the 1993 U.S.  Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc. 

 Business groups and other supporters say the measure would create a more rigorous standard that would prevent "junk science" from enabling costly tort cases.

Opponents, including private lawyers and Bill Cervone, president of the Florida Prosecuting Attorneys Association, said the hearings required under the proposed change could add new procedural hurdles to legitimate cases and place an undo burden on the state's already cashed-strapped justice system.

"This is a way to grind down the legal system, and let me assure you that justice delayed is justice denied," said Sen. David Simmons, R-Altamonte Springs.

Simmons offered an amendment that would apply the more complex standard for expert testimony that is not generally accepted in its field. He said the amendment would prevent courts from having to "reinvent the wheel" every time they weigh technical testimony, while still accepting cutting-edge science that meets the Daubert standard.

 Speaking on behalf of the Florida Justice Association, attorney Leslie Kroeger said the amendment would provide a "good compromise" between the groups seeking to change the standard and those looking to keep the current rules in place.

William Large of the Florida Justice Reform Institute said that the amendment "codifies the existing inadequate system" by creating a new statutory reference to a general acceptance test, which was affirmed by the 1923 federal court ruling in Frye v. United States.

 "I don't believe it's a compromise," bill sponsor Garrett Richter, R-Naples, said of the amendment. "I believe it's Frye in costume."

The Senate Budget Committee passed the bill 21-0 after the amendment was adopted on a divided voice vote. Simmons pledged to work with Richter and said he would consider adding language repudiating the Marsh v. Valyou Florida Supreme Court ruling, which allowed for the admissibility o f some testimony that does not meet the general acceptance test.

Reporter Travis Pillow can be reached at [email protected]

http://www.lobbytools.com/the-current/senate-panel-rewrites-changes-expert-testimony-rules