How Daubert Standard Could Impact Florida Industry, Judicial Climate

By Amy O’Connor | June 5, 2019

The Florida Supreme Court has reversed a prior court’s decision to use a nearly 100-year-old standard on expert witness testimony and instead adopted stricter federal standards currently used by a majority of states.

The court, which turned over in January with Republican Governor Ron DeSantis’ appointment of three new judges, ruled last month to replace the previously used “Frye” standard with what is known as the “Daubert” standard. The decision reversed an earlier court decision to block the use of the Daubert standard despite the Florida Legislature adopting it in 2013.

Defense lawyers say the move could have implications for insurers involved in lawsuits for a variety of different classes of business, as well as potentially reduce frivolous suits.

Daubert vs. Frye

The Daubert standard was adopted by the U.S. Supreme Court in 1993 from the case of Daubert v. Merrell Dow Pharmaceuticals, Inc. It replaced the Frye standard adopted federally after the 1923 case of Frye v. United States

The Daubert standard is used by judges to determine the eligibility of an expert witness based on the expert’s qualifications, as well as the relevance and reliability of the expert’s testimony. Daubert is considered a higher bar for allowing expert witness testimony than Frye, in which an expert can be allowed to testify based on their opinion if it is considered generally acceptable in the relevant scientific community.

Thirty-six states nationwide are currently using some form of Daubert instead of Frye.

Florida courts will implement a multi-faceted test to decide on the admissibility of expert evidence under the Daubert standard.

Florida passed legislation in 2013 to adopt the Daubert standard to, according to the Florida Bar, “ensure that the expert’s testimony admitted into evidence is both relevant and reliable.” The standard was in effect until 2018 when the then-court ruled it would go back to using Frye. Opponents of Daubert successfully argued to the court that the standard made trials more expensive and kept people from being able to access the courts.

In its per curiam opinion issued May 23, the current Florida Supreme Court said “the majority of this Court previously declined to adopt the Daubert amendments, to the extent that they are procedural, solely ‘due to the constitutional concerns raised’ by the Florida Bar’s Code and Rules of Evidence Committee and commenters who opposed the amendments.”

But in the 5-2 opinion, the court said the “grave constitutional concerns” raised by those who opposed Daubert “appear unfounded.”

The Daubert standard, the court said, remedies deficiencies of the Frye standard.

“Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable,’” and “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.”

In a dissent, Justice Jorge LaBarga said “… in my view Frye is the superior standard for determining the reliability of expert testimony.”

Effects on Insurance, Judicial Climate

The move could affect nearly every case in the state, including those related to the insurance industry, such as construction, medical malpractice and personal injury coverage disputes.

Craig Hudson, regional managing attorney, in the Fort Lauderdale, Fla., offices of Marshall Dennehey Warner Coleman & Goggin, a defense litigation firm that works with insurers, said he supports Daubert and thinks it is a “more reasoned approach to expert testimony because the court should be the gatekeeper on those.”

Insurers, their claims personnel and attorneys will need to take Daubert into consideration when looking at claims litigation going forward, he noted.

“It is important for [insurers] to at least closely scrutinize experts that are being retained by both parties in any litigation, if there is an opportunity, and on those cases that are stretching the envelope it is very important,” he said.

Lawyers retained by insurance companies, he said, could now try and perhaps be successful at removing experts they view as being unqualified for testimony. “It adds another avenue of defense,” Hudson said.

Executive Director of the Florida Property Casualty Association (FPCA) William Standard said that while it is ultimately hard to predict exactly how the adoption of Daubert will play out in Florida’s litigation environment, the move was a “welcome surprise.”

“Certainly, from the perspective of someone who works with insurance industry issues it can only be positive,” Standard said.

He noted federally it has helped keep certain suits out of the courtroom because of the higher standard for expert witnesses.

The Florida Chamber of Commerce said adopting Daubert is a significant move that would eliminate “junk science from Florida’s court,” and that it “may help end Florida’s reign as a ‘judicial hellhole.’”

“This is an important step forward in improving Florida’s legal climate, and providing predictability in the courtroom, stability for job creators, and greater economic prosperity for Floridians,” said David Hart, executive vice president of the Florida Chamber of Commerce.

William Large, president of the Florida Justice Reform Institute, also supported the move and said the decision “will change the face of Florida jurisprudence.”

The Florida Justice Association, however, which represents trial attorneys in the state and argued to the previous Florida Supreme Court that Daubert is unconstitutional, said when Daubert was in effect it was used by some opponents of the jury system to “clog the courts with meritless motions that drive up the costs of litigation for everyday people and put increased, unfunded burdens on the judicial branch.”

When Daubert was in effect between 2013 and 2018, it caused “extra hearings, extra motions, more litigation,” said Bryan Gowdy, an attorney with Creed & Gowdy in Jacksonville, Fla., and incoming chair of the FJA’s Amicus Committee.

“We represent individuals, not corporations, and that’s a cost that they have to somehow bear,” he said.

Gowdy said FJA would like see Daubert implemented in a way that eliminates frivolous litigation and defenses. Parties that bring “baseless” Daubert motions should pay for the costs involved, he added.

“The FJA wants Florida’s citizen juries to render verdicts based on reliable scientific and expert testimony,” Gowdy said.

Ultimately, FJA “respects the decision of the [Florida Supreme Court],” Gowdy said, but it hopes to work with the courts and the Florida Legislature to implement Daubert in a “commonsense” way.

“The FJA looks forward to working with the courts and the legislature to implement Daubert with commonsense rules that preserve the jury system and ensure justice is administered in an orderly, fair, and cost-efficient manner,” he said.

Florida Supreme Court Daubert Adoption

https://www.insurancejournal.com/news/southeast/2019/06/05/528418.htm