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Frye Makes a Strong Comeback in Florida

Posted in Florida Courts, Litigation Trends

Florida courts have historically relied on the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“Frye”) to determine the admissibility of expert opinions and testimony.  Though the Florida Supreme Court adopted Frye in the mid-1980s, Florida courts had applied this standard long before then. See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984). However, in April 2013, the Florida Legislature stirred things up when it passed a bill that amended Florida Statute § 90.702 to replace the longstanding Frye standard with the standard used in Federal Courts, as announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). Since the amended statute came into effect, some members of the Florida bar have challenged its validity and advocated that the Florida Legislature overstepped its bounds and infringed on the Florida Supreme Court’s rule-making authority. These challenges resulted in a five-year long debate as to the appropriate standard in Florida to determine whether expert testimony is admissible: Frye or Daubert?

Under the Frye standard, expert opinion and testimony is admissible if it is based on new or novel scientific principles and methodologies that are generally accepted in the scientific community. Whereas under Daubert, general acceptance is not a prerequisite for admissibility. Rather, a trial judge acts as the gatekeeper and determines the admissibility for “any and all scientific testimony or evidence” that is relevant and reliable. While there has been a clear divide within Florida’s legal community between those who are pro-Frye versus pro-Daubert, the five-year-long debate over which standard should be the law and is the law in Florida is finally over.

The Florida Supreme Court recently reaffirmed that “Frye, not Daubert, is the appropriate test in Florida courts” with its narrow (4-3) decision in DeLisle v. Crane Co., No. SC16-2182 (Fla. Oct. 15, 2018). This significant issue came before the Florida Supreme Court after the plaintiff sought review challenging the constitutionality of the amended Florida Statute § 90.702, which adopted the Daubert standard. DeLisle is a personal injury action alleging that the plaintiff’s exposure to the defendants’ asbestos-containing products caused him to develop mesothelioma. The case advanced to trial, where the remaining defendants challenged the admissibility of the plaintiff’s three causation experts’ opinions under the amended Florida Statute § 90.702.  Despite these Daubert challenges, the trial judge admitted each of the experts’ opinions and the jury awarded the plaintiff $8 million in damages. However, on appeal, the Fourth District Court of Appeal reviewed the admission of testimony under the Daubert standard for the plaintiff’s medical causation experts and ruled that the trial court failed to exercise its gatekeeping function under Daubert properly, and therefore erred in admitting their opinions at trial. See Crane Co. v. DeLisle, 206 So. 3d 94, 111-12 (Fla. 4th DCA 2016). The Fourth District Court of Appeal reversed the judgment.

In its decision, the Florida Supreme Court explained that it granted review of DeLisle on two grounds. First, conflict of law. Specifically, the Court details how the Fourth District Court of Appeal’s decision conflicts with the Florida Supreme Court’s decision in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), the seminal case that reaffirmed Frye is the standard in Florida “[d]espite the [U.S.] Supreme Court’s decision in Daubert.” Id. at 547. To illustrate this point, the Court highlights a portion of the Florida Legislature’s session that reveals the legislative intent of the amended Florida Statute § 90.702 to “overrule” the Court’s decision in Marsh. See Fla. HB 7015, preamble (2013) (available at www.flsenate.gov/Session/Bill/2013/7015) (“the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh”). However, the dissent disputes there being any conflict of law – pointing out that the amended Florida Statute § 90.702 came into effect after Marsh was decided by the Florida Supreme Court, and rebukes any notion that the Court has proper jurisdiction “on the ground that a case applies a statute that displaces previously existing law.” Notably, the dissent is silent on whether the majority’s Frye analysis is correct.

Second, the Florida Supreme Court determined that the amended Florida Statute § 90.702 infringes on the Court’s rule-making authority over procedural matters as set forth under Florida’s Constitution. Art. V, § 2(a), Fla. Const. While the Florida Supreme Court acknowledged in its decision that there are some rules of evidence that are substantive law and the responsibility of the legislature, the Court determined that the amended Florida Statute § 90.702 is not substantive as it “does not create, define, or regulate a right.” Rather, “this statute is one that solely regulates the action of litigants in court proceedings” and is therefore procedural – meaning, it was outside the Florida Legislature’s powers to amend Florida Statute § 90.702.

The Florida Supreme Court further explained the reasons Frye is the appropriate standard for Florida courts:

  • Frye relies on the scientific community to determine the reliability of the expert testimony with the “general acceptance” test. This standard eliminates the need for judges with little to no training or experience in a field from determining the admissibility of evidence. Conversely, under Daubert the trial judge acts as the “gatekeeper” that determines the admissibility of expert testimony based on the reliability and relevance.
  • Frye only applies to new or novel scientific evidence. However, Daubert’s application is broader – increasing the areas of expert testimony that are subject to being challenged and possibly hindering a litigant’s ability to prove its case on the merits.
  • Compliance with Daubert is an expensive and time-consuming proposition for litigants and for the courts. Litigants incur attorney and expert witness fees and costs associated with preparing lengthy expert reports and disclosures as well as with preparing and attending depositions. Litigants and the Court further expend resources in connection with Daubert hearings to overcome challenges to opinions and testimony.

Based on the above reasons, the Florida Supreme Court held that the trial court in DeLisle properly admitted the three experts’ testimony – explaining that “the causation of mesothelioma is neither new or novel.” The Court then ordered the case be remanded to the Fourth District Court of Appeals for further remand to the trial court for reinstatement of the final judgment.

Ultimately, there is no question that the Florida Supreme Court’s decision in DeLisle will have far-reaching effects on other cases. It is likely the Court’s decision in DeLisle will pave the way for countless appeals in previously litigated cases in which the Florida state courts have applied the Daubert standard as set forth under the amended Florida Statute § 90.702. Moreover, this decision will have far-reaching effects on current and future litigation matters if the Frye standard is to be applied going forward, as the scope of a litigant’s ability to challenge an expert’s opinions will be restricted to only new or novel scientific evidence.

Following the release of the decision, one of the appellants has moved for reconsideration, requesting a rehearing on two issues implicated by its decision. First, appellant argues that the Florida Supreme Court failed to address in its opinion the trial court’s failure to allow the jury to consider the fault of additional non-parties that contributed to the petitioner’s disease.  On appeal, the appellate court did not resolve this issue on its merits because it found that plaintiff’s medical causation expert’s testimony should have been excluded. However, in a footnote the court indicated that it would have reversed for failure to include the non-party defendants were it not concluding the testimony was inadmissible, as it would have provided the basis for including at least six non-party defendants on the verdict form. Second, the appellants argue whether an actual conflict of law exists between Florida Statute § 90.702 and any rule that has been promulgated by the Court. Pursuant to Florida Rule of Appellate Procedure 9.330(a), the Court has discretion as to whether to grant a rehearing based on the motions filed by the appellants so long as appellants demonstrate that the Court “overlooked or misapprehended” a particular point of law or fact, rather than merely expressing disagreement with the Court’s decision.

Based on the Court’s decision in DeLisle, it is likely the Court will reject the request for reconsideration regarding the existence of a conflict of law, however, the Court may consider the remaining issue on appeal regarding non-parties on the verdict form.