All posts by Daniel Klein

03MAY 2013

For years, Florida has been one of only 10 states that follow the “Frye” standard relating to the admission of expert testimony at trial. This may be changing, as a Florida Senate Panel recently advanced Senate Bill 1412 that would change the standards by which Florida judges admit expert testimony. The proposed bill, which is heading to the House of Representatives after an amendment in the Senate, would impose the “Daubert” standard for expert testimony instead of the “Frye” standard currently used in Florida state courts. This is the third year in a row where such a bill was introduced, but it has never advanced this far in previous years.

The “Frye” standard, comes from a 1923 Federal case, Frye v. United States, discussing the admissibility of a polygraph test as evidence.  Under the “Frye” standard, the trial judge must determine whether the expert’s testimony is based on a scientific principle that is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  However, the Florida Supreme Court has carved out a “pure opinion” exception to the “Frye” standard, which allows an expert witness to give testimony that would not otherwise meet the “Frye” standard, so long as the expert is merely offering an opinion, as opposed to a scientific fact.

In the 1993 case of Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court implicitly overturned the “Frye” standard in Federal Court, and adopted what is known as the “Daubert” standard.  This standard, after which the proposed bill is modeled, allows a trial court to admit expert testimony so long as the court finds it to be based on scientifically sound principles.

Proponents of the proposed bill argue that the current “Frye” standard, in conjunction with the “pure opinion” exception, allows unfettered expert opinions based on questionable scientific principles. They believe that the proposed bill would ensure the scientific validity of expert testimony and prevent “junk science” from ever reaching a jury’s ears. Opponents of the bill argue that it will drive up litigation costs due to the resources needed to educate the trial court on a particular scientific principle, so that the court can rule on whether the proffered testimony is based on a sound scientific theory.  Additionally, they argue that this time consuming process will create an additional and unnecessary backlog in the courts’ dockets throughout Florida.

This hotly contested debate is nearing an end, as the Senate passed the bill on Friday, sending it back to the House of Representatives for review of the amendments.  Should the bill ultimately reach Governor Scott for ratification, it is expected that he will support the bill.

This is important to our clients because there are generally many expert witnesses that are engaged to and participate in construction litigation.  In addition to sometimes educating counsel on scientifically specialized topics, these expert witnesses – who range from architects to civil/structural/MEP engineers to Division I/Division II/Specialty Contractors, among others – provide opinions or “scientific facts” upon which a case may turn.  Accordingly, given the importance (and expense) of these experts, this is a hot-button issue we will watch with great interest.

17JUL 2012

            As those in the industry are aware, the standard AIA documents – as well many of the other form contracts in construction – include arbitration provisions, the result of which is that many construction matters are litigated in arbitration fora. While arbitration is theoretically not as expensive a means of dispute resolution as the court system, the concern is that, absent very limited circumstances, parties have virtually no appellate rights after a final ruling.  AFloridatrial court recently dealt with this issue and in doing so reminded us that there is, indeed, a modicum of appellate rights for parties in arbitration.  We thought our readers would benefit from the education of that court’s ruling. 


            The trial court has limited jurisdiction and power over decisions rendered by arbitrators, and is similarly limited in reviewing those decisions.  In Yeary v. Superior Pools, Spas, & Waterfalls, Inc., 19 Fla. L. Weekly Supp. 418a, the 17th Judicial Circuit in and for Broward County, in its appellate capacity, determined that the county court had no authority to modify an arbitration award to designate a contractor as the prevailing party and award attorney’s fees.  Specifically, in Yeary, a contractor brought an action in county court against owners of real property to recover damages for an alleged breach of contract and to foreclose on a construction lien, and the owners counterclaimed for breach of contract.  Pursuant to an arbitration provision in the contract, the contractor elected to transfer all claims to binding arbitration. 


            The arbitrators awarded more money to the contractor than to the owners, but the award did not identify a prevailing party and denied the contractor’s request for attorney’s fees.  The contractor then moved the county court to modify and correct the award, arguing that the arbitrator’s decision not to award attorney’s fees was contrary to established law because it was the prevailing party.  The trial court remanded the claims to the arbitrators and asked for clarification as to the basis for the award and as to why attorney’s fees had been denied.  The arbitrators responded that the award was “based only in equity, not on contract or lien.”  Following the clarification from the arbitrators, the trial court agreed with the contractor, and designated the contractor the prevailing party and awarded entitlement to attorney’s fees.  The owner appealed. 


            The circuit court, serving in its appellate capacity, overturned the order designating the contractor as the prevailing party, and the award of attorney’s fees.  The appellate court determined that trial court did not have the authority to designate the contractor as the prevailing party and to award it attorney’s fees.  Under the Florida Arbitration Code, an arbitrator has no authority to award attorney’s fees unless the parties by agreement expressly waive their statutory right to have the issue of attorney’s fees decided in court.  See Fla. Stat. § 682.11.  The court explained that by the contractor submitting the prevailing party issues to the arbitrators, initially, as a matter of law, the contractor waived its entitlement to have the prevailing party (along with a potential award of attorney’s fees) determined by the trial court. 


            The law inFloridais well-settled that attorney’s fees cannot be awarded as a matter of equity.  As mentioned above, the arbitrators responded, in clarifying the initial decision, that the award was based only in equity.  Thus, there was no basis to award fees.           


            The decision in Yeary cautions those individuals and/or entities wishing to reserve their rights to have a trial court retain jurisdiction to determine attorney’s fees.  Per this opinion, they must be careful at the contracting stage not to draft language that subsequently will be interpreted by a court to expressly waive such right.