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Appellate Law
Florida Supreme Court Declines to Adopt Daubert Standard for Expert Evidence, But Questions Remain
By Robin Bresky, Esq., and Randall Burks, Esq.
In addition to deciding cases, the Florida Supreme Court has the responsibility of adopting procedural rules for court proceedings; but the Court does not di-
rectly promulgate rules of evidence.  e Legislature has enacted the Florida Evi- dence Code in chapter 90 of the Florida Statutes, and the Supreme Court usually adopts the legislative amendments to the extent they are procedural.  e Court re- cently declined, however, to adopt certain procedural amendments to the Florida Evidence Code, including a change to the standard of admissibility for scienti c ex- pert evidence. In re Amendments to the Fla. Evidence Code, Case No. SC16-181, 42 Fla. L. Weekly S 179 (Fla. Feb. 16, 2017).
Until 2013, sections 90.702 and 90.704 of the Florida Evidence Code re ected the Frye standard for expert testimony based upon new or novel scienti c evidence, derived from Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (when expert testimony is deduced from a scienti c principle or discovery, the principle or discovery “must be su ciently established to have gained general acceptance in the particular  eld in which it belongs”).
Meanwhile, in the federal court system in 1975, Rule 702 of the Federal Rules of Evidence did not incorporate Frye’s “gen- eral acceptance” test but rather re ected a reliability standard where the judge “must ensure that any and all scienti c testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Phar- maceuticals, Inc., 509 U.S. 579, 589 (1993). Federal Rule 702 was amended in 2000 and 2011 to codify the Daubert standard of relevancy and reliability. In addition to the federal court system, the majority of states have also adopted the Daubert stan- dard.
 e Florida Legislature followed that trend in 2013 by amending sections 90.702 and 90.704 of the Florida Evidence Code to replace the Frye standard with the Daubert standard. Under the Daubert Amendment, “the trial courts must act as gatekeepers, excluding evidence unless is it reliable and relevant.” Crane Co. v. Delisle, 206 So. 3d 94, 101 (Fla. 4th DCA 2016) (citations and internal quotes omit- ted).  e judge “should a rmatively pre-
vent imprecise, untested scienti c opinion from being admitted.  e expert must ex- plain his or her methodology and how it is applied to the data relevant to the case. Further, when relying on other studies, the expert must identify those studies and explain how they support the application of the methodology used.” Id. at 103.
Although the Florida Supreme Court generally adopts amendments to the evi- dence code to the extent they are proce- dural, the code and rules of evidence com- mittee of  e Florida Bar recommended that the Court should decline to adopt the Daubert Amendment due to “grave con- stitutional concerns” such as a concern that it could undermine the right to a jury trial and deny access to the courts, such as by excessively rejecting or excluding ex- pert opinions.
Due to those concerns, the Supreme Court declined to adopt the Daubert Amendment in its opinion Feb. 16, 2017.  e Court did not actually declare sec- tions 90.702 and 90.704 unconstitution- al; it only declined to adopt the Daubert Amendment “due to the constitutional concerns raised, which must be le  [to be determined within] a proper case or con- troversy” because the Court does not de- termine constitutionality in the context of rules cases. 42 Fla. L. Weekly S 179 at *21.
 e dissenting opinion suggested that the constitutional concerns are unfound- ed: “Has the entire federal court system for the last 23 years as well as 36 states de- nied parties’ rights to a jury trial and ac- cess to courts?” Id. at *28.
 ree months earlier, in November 2016, the Fourth District noted that “stat- utes are presumed to be constitutional and are to be given e ect until declared otherwise,” and “we, and other Florida ap- pellate courts, have applied the [Daubert] statute.”  e Fourth DCA rejected the ar- gument “that this court lacks the authority to apply Daubert ... because it ... has not yet been approved by the Florida Supreme Court.” Crane Co., 206 So. 3d at 100 n.7.  e  ird District has applied Daubert since 2014, noting in a negligence case that the Supreme Court had already amended the Rules of Juvenile Procedure to elimi- nate the Frye test and apply Daubert. Perez
v. Bell S. Telecomms., Inc., 138 So. 3d 492, 498 n.12 (Fla. 3d DCA 2014).  e First, Second, and Fi h Districts have also ap- plied Daubert. See, e.g., Baan v. Columbia County, 180 So. 3d 1127, 1132 n.8 (Fla. 1st DCA 2015); Baricko v. Barnett Transp., Inc., 42 Fla. L. Weekly D174 *2 (Fla. 1st DCA Jan. 17, 2017) (Wetherell, J., concur- ring); R.C. v. State, 192 So. 3d 606, 609 n.2 (Fla. 2d DCA 2016); Churchill v. State, 169 So. 3d 1260, 1260 n.1 (Fla. 5th DCA 2015).
Accordingly, the full impact of the Flor- ida Supreme Court’s February 2017 opin- ion remains to be seen.
Robin Bresky of The Law Offices of Rob- in Bresky, in Boca Raton, is an appellate attorney who practices in civil and crimi- nal appeals and litigation support matters throughout Florida. Robin is very active in the legal community and is a past-president of the Florida Association for Women Lawyers. She is the president-elect of the National Conference of Women’s Bar Associations. Randall Burks, an experienced appellate at- torney, is a senior associate with the firm. You can visit www.BreskyAppellate.com for more information.
Robin Bresky, Esq.
Randall Burks, Esq.
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