Whether the Florida Legislature’s adoption of the Daubert standard regarding the admissibility of expert testimony presents grave constitutional concerns, namely undermining the right to a jury trial and denying access to the courts?
The Court declined 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.
In 2013, Florida’s Legislature adopted changes to the Florida Evidence Code regarding the standards for admissibility of expert testimony. The Daubert Amendment amended sections 90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts), Florida Statutes (2012), to change the standard of admissibility for scientific expert evidence from the Frye standard to the Daubert standard which is the standard used by federal courts. The Frye test only applies to expert testimony based upon new or novel scientific evidence, and in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
The Daubert standard provides that the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Amended section 90.702 sought to do this by requiring that: 1) the expert witness testimony is based upon sufficient facts or data; 2) the expert witness testimony is the product of reliable principles and methods; and 3) the witness has applied the principles and methods reliably to the facts of the case. The Florida Legislature further sought to meet the Daubert standard through amending section 90.704 as follows:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
The Court noted that The Florida Bar’s Code and Rules of Evidence Committee (Committee) recommended the Court not adopt the Daubert Amendment to the extent it is procedural. The Committee raised what the court considered to be “grave constitutional concerns,” including undermining the right to a jury trial and denying access to the courts. The Court explained that it does not address the constitutionality of a statute or proposed rule within the context of a rules case. However, the fact that there may be “grave concerns about the constitutionality of the amendment” has been a previous basis for the Court to not adopt an evidentiary amendment to the extent it is procedural. Accordingly, the Court declined 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.