In yet another rejection of a policy backed by conservative lawmakers and Gov. Rick Scott, the Florida Supreme Court Thursday “declined” to change the state’s expert evidence rule to one used by federal courts and most states.
“We decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy,” said the majority opinion by Chief Justice Jorge Labarga and Justices R. Fred Lewis, Barbara Pariente and Peggy A. Quince.
Those concerns include “undermining the right to a jury trial and denying access to courts.”
Florida uses the Frye standard, generally considered easier for plaintiffs to get damaging expert testimony before a jury, while it’s much harder to do so under Daubert.
That’s why Frye is preferred by plaintiffs’ attorneys, and Daubert became a favorite of the defense bar and its big business clients. The Florida Bar’s Board of Governors last year voted to recommend to the court against the change.
Justices Charles Canady and Ricky Polston, the court’s conservative minority, disagreed with their colleagues. The newest justice, conservative C. Alan Lawson, did not participate in the decision.
Polston, in a dissent in which Canady joined, questioned the majority’s concerns.
“Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not,” he wrote.
In 2013, the Legislature approved and Scott signed into law the changing of Florida’s expert evidence rule to the Daubert standard, but the courts did not immediately follow suit.
The judicial branch avoided having to follow the change because of a question over whether switching the expert testimony rule is substantive or procedural. Generally under the state constitution, the Legislature has authority over the “substance” of court operations and the courts decide matters purely of “procedure.”
State Rep. Larry Metz, who sponsored the law that included the Frye-to-Daubert swap, had argued before the court last year that the change “gets to the fundamental purpose of courts,” having “a greater standard of reliability so we can get to the truth in cases.”
On Thursday, he said the court ignored the fact that his legislation passed in both chambers with comfortable majorities: “And we are representing the people of Florida in doing that.”
The court noted it had received 56 comments in favor of keeping Frye and 131 comments in favor of switching to Daubert.
Of those, 77 were “form emails from ‘small business owners’ repeating the same request that the court (move to) ‘the Daubert expert witness standard that the Florida legislature passed in 2013,’ ” a footnote in the majority opinion said.
The Frye standard asks whether expert testimony is “generally accepted” in a particular scientific community. Daubert is stricter scientifically and can often require a kind of “mini-trial” even before an expert can appear in front of jurors. Both are named after court cases.
Oral argument in the case last year added the wrinkle of criminal cases, where advocates said Daubert might help defendants’ lawyers hold police crime labs more accountable, in cases involving drug-sniffing dogs and testing for arson, for example.
The full court Thursday also turned down two other proposed evidence changes.
One would require “a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered.”
The other would change “the hearsay exception relating to reports of abuse by elderly persons or disabled adults.”