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Florida Construction Law News

03MAY 2013

“Daubert” Standard for Expert Testimony in Florida?


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.