SUPREME COURT REVERSES COURSE ON EXPERT WITNESSES
5/23/2019 Jim Saunders
TALLAHASSEE --- In a move that left little doubt about the new direction of the Florida Supreme Court, justices on Thursday reversed a controversial 2017 decision about the testimony of expert witnesses in lawsuits.
While drawing relatively little public attention, the expert-witness issue has been a political battleground for business groups and plaintiffs’ attorneys. The ruling Thursday effectively sided with the position of business groups and Republican lawmakers --- and cemented that the newly revamped Supreme Court is willing to reverse course on past decisions.
After taking office in January, Republican Gov. Ron DeSantis appointed justices Barbara Lagoa, Robert Luck and Carlos Muniz to replace longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince, who were forced to leave because of a mandatory retirement age. The appointments have turned what was widely viewed as a liberal court into a conservative court.
The 5-2 ruling Thursday was rooted, at least in part, in a 2013 law approved by the GOP-controlled Legislature and then-Gov. Rick Scott. The business-backed law tightened a standard for expert witnesses, whose testimony can play a pivotal role in complicated civil and criminal cases.
Supporters of the 2013 law argued that the state needed to prevent testimony that is “junk science.” Lawmakers decided to move to what is known in the legal world as the "Daubert" standard, which is more-restrictive than the state's longstanding expert-witness standard, known as the “Frye” standard. Federal courts use the Daubert standard, but opponents of using it in Florida courts said it would make cases more expensive and time-consuming.
In 2017, however, the Supreme Court, which has the power to set court procedures, blocked the move to the Daubert standard. The majority in that 4-2 decision --- Pariente, Lewis, Quince and Justice Jorge Labarga --- pointed to “grave constitutional concerns” about the Legislature’s effort to change the standard. Dissenting in the case were justices Charles Canady and Ricky Polston.
On Thursday, however, Canady, Polston, Lagoa, Muniz and Justice Alan Lawson made up a majority that said it had decided to “recede” from the earlier decision. As a basis, it pointed to “this court’s exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.”
“Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable,’ ” the opinion said. “Moreover … the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”
But Labarga, in a dissent, pointed to recommendations from a Florida Bar committee that played a role in the Supreme Court’s 2017 decision to not change the standards.
“I agree with the committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts,” Labarga wrote. “Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case.”
Luck, one of the DeSantis appointees, also dissented, saying the Supreme Court did not follow its procedures before issuing the decision Thursday. Those procedures involve committees and The Florida Bar Board of Governors studying proposed court rule changes and making recommendations.
“Because we established mandatory procedures for exercising our rulemaking authority (under part of the Florida Constitution), we are as required to follow them as everyone else,” Luck wrote. “There is no exception for administrative ease, and there is no proviso for we’ve-heard-it-all-before.”
Since DeSantis appointed the new justices, speculation has swirled about issues that the court could address --- and possibly revisit. The News Service of Florida reported this week, for example, that justices are weighing whether to undo a major 2016 ruling in death-penalty cases.
William Large, president of the Florida Justice Reform Institute, a group that lobbied for the 2013 expert-witnesses law, pointed to potentially far-reaching ramifications of Thursday’s decision.
“The Florida legislature passed the Daubert expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” Large said. “The court’s decision today to finally adopt the Daubert standard will change the face of Florida jurisprudence."