To Be or Not To Be … Admitted? That is the Question
The Florida Supreme Court recently announced that Florida courts would utilize the Daubert standard when evaluating the admissibility of expert testimony, instead of the Frye standard, which was set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). With this change, Florida courts will join the federal courts and a majority of the states. In its Opinion, In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019), the Florida Supreme Court emphasized that harmonizing Florida’s evidentiary standard with the standard employed by federal courts should result in a reduction in forum shopping – or efforts to remove cases from state courts to federal courts.
Prior to the Supreme Court of the United States’ decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Frye standard was prevailing benchmark for admitting expert testimony. The Florida Legislature originally adopted the Daubert standard in 1993, when Florida Evidence Code was amended to mirror Federal Rule of Evidence 702. Ultimately, in DeLisle v. Crane, 258 So. 3d 1219, 1229 (Fla. 2018), the Florida Supreme Court held that the Frye standard would be used in Florida courts. Of course, that all changed in 2019 when the Florida Supreme Court announced the adoption of the Daubert standard.
The change in evidentiary standards is expected to have important ramifications on all litigation in Florida, but a more significant effect is expected in cases where the viability of the claim is dependent on expert opinions regarding causation, such as those involving insurance coverage disputes, construction defects, or complex commercial litigation. In order to truly appreciate the effect of the Florida Supreme Court’s decision to adopt the Daubert standard for admitting expert testimony, it is important to understand the differences between the Frye standard and the Daubert standard.
The Frye standard is only applied to “new or novel” expert opinions, while the Daubert standard is applied to all expert witnesses in order to determine if the expert’s opinions are relevant and reliable. Under the Frye standard, expert testimony is allowed to go before the jury if the methodology used was generally recognized in that expert’s community and the jury is responsible for evaluating and determining whether the expert’s methodology was properly applied. Under the Daubert standard, the trial court must examine both the expert’s methodology and the application of the methodology before allowing the jury to hear an expert’s opinion.
The Eleventh Circuit set forth a three-part test to be used when considering the admissibility of expert testimony in Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Florida, 402 F.3d 1092, 1107 (11th Cir. 2005). Expert testimony is considered admissible if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
Florida Statue §90.702 (reproduced below), which governs testimony by experts, integrates the three-part test proffered in Cook ex rel. Estate of Tessier.
90.702 Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The 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.
To be admissible under the Daubert standard, not only will the methodology used by the expert need to be reliable, but the application of that methodology will also need to be not only appropriate but of assistance to the jury in appreciating the evidence. A party moving to exclude an expert witness’ testimony will need to demonstrate either that the expert witness is not qualified to render an opinion or that the expert’s opinion is irrelevant and unreliable. In order to overcome a motion to exclude the testimony, the non-moving party will need to explain the expert’s methodology and why it is inherently reliable to the court.
What does all of this mean for community associations? Consider how the new evidentiary standard will impact insurance coverage litigation. The Daubert standard is well-established and Florida courts will have abundant federal case law to guide state judges in reaching well-reasoned rulings. The new standard will also allow community associations involved in disputes with their insurance carriers to challenge the carrier’s expert testimony when the witness’ methodology does not meet the heightened requirements demanded by the Daubert standard. Unfortunately, there are also possible negative consequences associated with the new evidentiary standard. The Daubert standard may overburden the courts due to increased challenges to the admissibility of a witness’ expert testimony, which would require additional hearings and additional preparation, and potentially increase the cost of litigating a claim. These potential repercussions make it more critical that communities work with attorneys who are knowledgeable and experienced in overcoming evidentiary challenges.