August 02, 2019 Practice Points

Florida Adopts Daubert Standard

Practitioners should be prepared to apply the new standard in matters in the Florida state courts.

by Michael R. Lied

On May 23, 2019, the Supreme Court of Florida adopted chapter 2013-107, sections 1 and 2, Laws of Florida, which amended sections 90.702 (testimony by experts) and 90.704 (basis of opinion testimony by experts), of the Florida Evidence Code to replace the Frye standard for admitting certain expert testimony with the Daubert standard.

By way of background, in 2017, the majority of the Supreme Court of Florida declined to adopt the Daubert amendments, to the extent that they were procedural, due to constitutional concerns raised by commenters who opposed the amendments.

Justice Polston explained that the “grave constitutional concerns” raised by those who opposed the amendments to the code appeared unfounded. The court did not decide the constitutional or other substantive concerns that had been raised about the amendments. Those issues were left for a proper case or controversy.

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.

According to the court, the Daubert amendments will create consistency between the state and federal courts on the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.

Effective immediately, the court adopted the amendments to section 90.702 as procedural rules of evidence, and adopted the amendment to section 90.704 to the extent it is procedural.

Thus, Florida joins a considerable number of state courts that have adopted the Daubert standard. Practitioners should be prepared to apply the new standard in matters in the Florida state courts.

Michael Lied is with Howard & Howard Attorneys PLLC, Peoria, IL.

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