Daily Business Review

Panel Urges Going Back to Frye Standard for Expert Testimony

*Julie Kay, Daily Business Review***

October 20, 2015

Justice Scales on a Counter

The U.S. Chamber of Commerce Institute for Legal Reform, Florida pro-business groups and defense law firms are squaring off against plaintiffs attorneys in a major battle over admitting expert testimony in state courts.

The fight is over the Daubert standard, currently used in federal court and 27 states. It was adopted by the Florida Legislature in 2013 after three failed tries, but the Florida Bar code and rules of evidence committee is recommending its rejection.

The issue came up at the Florida Bar board of governors meeting Friday but was tabled until December.

Business interests accuse plaintiffs lawyers of foot-dragging to avoid implementing a law passed by the Republican-controlled Legislature.

The Daubert standard was adopted to replace the Frye standard, which has been in use in Florida since 1923.

Daubert represents a far stricter standard for allowing experts and expert testimony in court and requires judges to hold mini-hearings, including possible depositions, over whether experts and their testimony should be admitted in criminal and civil cases.

Plaintiffs attorneys and their statewide advocacy group, the Florida Justice Association, argued a change in standards is unnecessary, would add to judges' clogged calendars and amounts to a delaying tactic by insurance companies and defense lawyers.

"This has thrown a giant monkey wrench into the system, slowing things down considerably," said Keith Mitrik, lead trial counsel at Morgan & Morgan, one of the major forces behind the move to overturn Daubert. "For 50 years judges have been acting as gatekeepers and keeping junk science out of the courtroom. Judges are smart. That's why they were elected. This is a pure, stinking maneuver pushed through the Legislature by the insurance companies. It's imposed utter and complete havoc on a strained judicial system."

Statewide organizations representing prosecutors and public defenders also opposed the legislation but are staying neutral in the rules fight.

Junk Science

The Florida Justice Reform Institute and the U.S. Chamber of Commerce Institute for Legal Reform, two tort reform groups, plus corporate defense lawyers have a different view. They said the Daubert standard keeps "junk science" out of the courtroom.

"We support the Daubert standard because good science makes good law," said William Large, president of the Florida Justice Reform Institute. "The Daubert standard allows a judge to act as a gatekeeper and to size up an expert's testimony and determine whether it's valid. It does not favor any side in litigation. All it does is favor sound scientific evidence."

Lawyers for some of the state's largest law firms wrote to the Florida Bar committee, urging adoption of the Daubert standard. Those lawyers include Hilarie Bass, co-president of Greenberg Traurig; Mark Delegal, a Tallahassee partner at Holland & Knight; and Anthony Upshaw, a Miami partner at McDermott Will & Emery.

"The Daubert standard for the admission of expert witness testimony is a sound doctrine that requires some degree of reliability for all expert witness testimony," Upshaw wrote. "Adopting Daubert will simply bring Florida into conformity with the majority of jurisdictions on the issue."

The committee narrowly voted to reject the Daubert standard by a vote of 16-14. The issue must still be voted on by the Florida Bar board of governors, which will forward the issue to the Florida Supreme Court for a final decision.

More than 100 plaintiffs lawyers wrote to thank the committee for voting down the Daubert standard and urging the Florida Bar board of governors to also do so. Most of the letters came from attorneys at Morgan & Morgan in Orlando and the West Palm Beach law firm Searcy Denney Scarola Barnhart & Shipley; many appeared to be form letters.

North Palm Beach plaintiffs attorney Patrick Tighe of X1Law argued the law raises constitutional issues.

"It not only calls into question the separation of powers ... but its practical impact will violate the rights of thousands of Floridians of access to the courts," he wrote. "Daubert may or may not be appropriate for some of the larger cases that find their way to federal court, but not for run-of-the-mill tort cases which thousands of people bring to Florida courts. Frye is adequate to safeguard against truly new or novel methodology that has not been adequately tested or practiced."