Thursday, September 12, 2013

Daubert - the New Standard for Experts in Florida

Florida recently became the 41st state to adopt a Daubert standard governing the admittance of expert testimony in the courtroom. In brief, Daubert requires judges to determine whether expert testimony is based on a relevant and reliable methodology before admitting it. When Florida’s governor signed into law the change to Daubert, commentators (IMS ExpertServices; Rumberger, Kirk & Caldwell) began touting the new standard as being tougher for experts.

Tougher? We agree. 

In Florida, the old standard was Frye. A provision in Florida’s Frye was the pure opinion exemption (POE) that allowed expert testimony to be admitted on the basis of an expert’s personal experience and training. In recent years the POE applied to any expert testimony that was not supported by new or novel science or techniques, and limited the applicability of Frye to only that which was considered new or novel. In essence, since most expert testimony is not based on new science or techniques, most expert testimony did not require a Frye test and was admitted regardless. The POE stands in stark contrast to the Federal Daubert standard, which after the decisions in Joiner and Kumho, clearly stated that expert testimony would not be admitted into the courtroom if the reliability of the methodology was based solely on the expert’s qualifications, or mere “ipse dixit” ( meaning, “because I say so”). The bar for experts in Florida is definitely higher now under the new standard.

Implications for Experts

Florida law states that cases to be tried on or after July 1, 2013 are subject to Daubert (Florida Statute §90.702).  Since we are working on a case in Florida state court that was filed when Frye applied, we began thinking – how will the switch to Daubert affect us? After careful consideration, it won’t. The main reason is that even in states governed by Frye, we typically think through the methodology in terms of Daubert and are accustomed to meeting its rigor. Despite the countless discussions contrasting Frye and Daubert there is sentiment among the expert witness community and legal community that, “Daubert's shadow now casts itself over state court opinions even in jurisdictions that have not formally adopted the Daubert test." (David Faigman et al., Modern Scientific Evidence).

How to Handle the Change

No matter which standard governs your case, we strongly recommend that you spend considerable time thinking about the methodology you are using, and how you can demonstrate its reliability through objective validation. It is important to fully explain and document your methodology in your expert report such that both sides know the basis for your opinions. This does not mean that a motion to exclude your testimony will not get filed, but it does allow for you to assist your client in submitting a well-written response.

On the flip side, if you can only rely on your expertise to demonstrate your methodology is reliable, you may want to think twice before proceeding. The courts have spoken: ipse dixit will get you excluded in Daubert courts and likely the remaining Frye courts, too.

Submitted by Wendy N. Pearson, President

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