Daubert, Frye...or Both - Tracking Florida’s Buy-In

By Maggie Tamburro

For the second consecutive year, the Florida legislature is considering a bill that would change the standards for admission of expert witness testimony in Florida state courts. Slowly inching its way through the legislature, the bill suffered setbacks on March 8 when Senate amendments altered the language - and ostensibly the bite - of the original bill approved by the House in February.

At issue is whether Florida should adopt its own statutory version of Federal Rule of Evidence 702 and Daubert, and throw out the long-standing Frye standard currently employed in Florida state courts. If you’re waiting to see which direction Florida will ultimately go regarding the current Frye v. Daubert debate, don’t hold your breath. Opinions differ across the board, and the ultimate answer, if any, may be a little of both.

Original House Bill Initially Approved

On February 24 the Florida House voted to approve HB 243, which sought to amend section 90.702 of the Florida Statutes by conforming the standards for admission of expert testimony in Florida state courts to those used in federal courts. Specifically, the bill sought to require that admission of expert testimony in Florida state courts be held to the same standards contained in Federal Rule of Evidence 702 and factors articulated in Daubert.

Florida currently uses the Frye standard in evaluating the admissibility of expert witness testimony. The Frye standard - considered by many to be less stringent than its federal counterpart - generally focuses on whether the underlying scientific principles are sufficiently established to have gained general acceptance in their field.

The original House bill sought to openly reject the Frye standard and replace it with the federal factors enumerated in Federal Rule of Evidence 702 and the standards spelled out by the U.S. Supreme Court in Daubert and its progeny.

Original House Bill Loses Traction in Senate

Supporters’ hopes were high after initial House approval of the bill; however, the bill has lost some traction in the Senate. On Thursday, March 8, a Senate amendment diluted the language and impact – the amendment left in place statutory changes adopting the standards in Federal Rule of Evidence 702, but then watered down the applicability of Daubert in a sort of ‘throw the baby out with the bathwater’ approach.

As of the date of this post, what now remains of the House bill is essentially a hybrid - a bill that mirrors the standards for admissibility in Federal Rule of Evidence 702, but then contains elements of both Daubert and Frye. According to bill analysis, the amended version of the bill would allow “established science” to be subject to a Frye standard, while “new and emerging scientific testimony” would be subject to a Daubert standard. The amended bill also seems to give large leeway to courts in making a determination regarding which standard to choose, stating, “This act does not alter the authority of the courts in this state to manage their dockets as they deem appropriate…”.

On March 8th, the amended version of the bill was adopted and passed by the Senate. The amended bill now awaits action from the House. If ultimately enacted into Florida law, the bill is slated to take effect July 1, 2012.

What Opponents are Saying…

What seems to be the biggest sticking point for Daubert opponents in Florida is increased time and costs associated with implementation – under Daubert, the gatekeeping role required of trial judges allegedly can result in increased litigation due to pretrial matters and delay cases. In a February statement released by the Senate Budget Committee, Florida prosecuting attorneys complained the bill would cause them to incur “a recurring fiscal impact of between $1-$1.25 million due to ‘expert expenses and the utilization of Assistant State Attorneys’ time in the more complicated cases.’” The amended hybrid version of the bill allegedly reduces their fiscal impact by half.

Also noted was a concern that, “There may also be some short-term costs to educate judges on the application of the Daubert standard.” Maybe it’s just this author, but I would think that one would give Florida judges a little more credit.

Others argue that adoption of Daubert would turn Florida judges into pseudo scientists, echoing some federal critics.  And still others (interestingly the Florida Supreme Court at one time among them in the 1997 case of Brim v. State) maintain that Frye actually dictates a higher standard of reliability than Daubert.

What Proponents Are Saying…

Meanwhile, proponents of the original bill claim adoption of the federal standards and Daubert would modernize Florida law – after all, Frye dates all the way back to 1923 – and increase reliability of expert testimony in the state courts, bringing Florida up to snuff with the current standards used in federal courts. One of the bill’s original proponents, the Florida Chamber of Commerce, released a strongly worded report in support of the initial House bill claiming that “Florida’s legal climate ranks as the 42nd worst in the United States,” and passage of the bill would bolster the integrity of Florida’s state trial courts and improve Florida’s legal and business climate.

What Other States are Doing...

How many states have adopted the factors in Federal Rule of Evidence 702 and Daubert? The answer to that question may depend not only on who you ask, but also what side of the argument you take – according to a February article reporting passage of the House bill in The Florida Bar News, opponents of Daubert standards in state court assert “only a handful of states, perhaps as few as six, use the ‘pure’ Daubert standard…” Meanwhile, supporters of the bill have asserted that most states actually follow the federal standard and now use Daubert.

It does appear that, overall, state courts seem to be trending in favor of adoption of at least some form of the federal requirements. Undertaking a full state review is a difficult task as state statutes and case law seem to change daily.

However, according to the PLI’s recently published Expert Witness Answer Book 2012, as many as 34 state jurisdictions have adopted the U.S. Supreme Court’s standards articulated in Daubert. Those states include Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming - and most recently in 2011 Alabama and Wisconsin.

Currently 9 states and the District of Columbia follow the Frye rule - either specifically rejecting Daubert or choosing not to apply Daubert principles. These include California, the District of Columbia, Florida, Illinois, Kansas, Maryland, Minnesota, New York, Pennsylvania, and Washington.

Meanwhile, 7 states have their own unique approach and utilize neither Daubert nor Frye: Missouri, Nevada, New Jersey, North Carolina, North Dakota, South Carolina, and Virginia.

For Now - Bill’s Fate Uncertain

For now, those with an eye on the future of standards governing admission of expert testimony in Florida state courts and elsewhere await the fate of Florida’s amended bill. Many are watching to see what exactly Florida will do, and what results the bill will have, if any, on expert witness testimony in that state. This is the second year in a row that a bill has been introduced in the Florida legislature in an effort to reject Frye and conform to the federal standards and Daubert - a bill similar to the original House bill of this year died in the Senate last May.

Author’s Update April 4, 2012 – An Unhappy Ending for Florida Daubert Supporters

In follow-up, the Florida House and Senate were ultimately unable to reach agreement on HB 243, so for the third year in a row attempts to change the Florida evidence code to a more Daubert-like standard failed.

The House decided not to take up the Senate’s amended version, which went from a strict adherence of Daubert unanimously passed in the House, to a much watered down version that more closely resembled Frye. “A true application of the Daubert standard was passed through the House,” stated Rep. Matt Gaetz in the April 1 edition of The Florida Bar News. “The amendment that was tacked on in the Senate was essentially Frye. Thus, the two chambers were oceans apart.”

Does adoption of Daubert help or hinder state courts with regard to expert witness testimony?

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Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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