Featured Expert Column –Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In 2013, the Florida Legislature replaced the Frye standard with the Daubert standard by enacting statutory language that mirrors Federal Rule of Evidence 702. Presumably, that should have been the end of the matter. Daubert should now govern the admissibility of expert testimony in Florida state courts.

The Florida Supreme Court, however, has a history of rejecting procedural aspects of the Florida Evidence Code that the legislature enacts. To do so, the court invokes its authority over the rules of practice in Florida’s courts under Article V, Section 2(a) of the Florida Constitution. In February 2017, the court again exercised its constitutional prerogative over procedural aspects of the state court system and rejected the legislature’s adoption of the Daubert standard, citing “grave constitutional concerns.” In re: Amendments to the Florida Evidence Code. Thus, unless the legislature overturns the court’s decision by a two-thirds vote, Frye will continue to govern in Florida state courts.

Following the legislature’s adoption of Daubert, the Florida Supreme Court appointed a Committee to make recommendations on whether to adopt the Daubert amendments to the Florida Evidence Code. By a vote of 16–14, the Committee issued a report that recommended against adoption of the Daubert amendment. Both before and after issuing its report, the Committee received public comments. Daubert amendment opponents loaded the public comment docket with negative assessments. After considering the Committee’s report and hearing oral argument, the Florida Supreme Court, by a 4–2 vote (newly appointed Justice C. Alan Lawson did not participate), decided against adopting the Daubert amendment.

In a short opinion, the court mentioned the Committee’s report and the public’s comments arguing that the Daubert amendment raised “grave constitutional concerns” and would “undermin[e] the right to a jury trial and den[y] access to the courts.” While making clear that it was not reaching that particular constitutional question, the court credited those concerns in declining to adopt the Daubert amendment. The court did not further elaborate on those concerns—which seem far from obvious given that Daubert is followed in all federal courts and most state courts—or offer any other explanation for its decision to reject the Daubert standard.

In a dissenting opinion, Justice Ricky Polston, joined by Justice Canady, criticized the majority for rejecting the Daubert standard. Justice Polston found the majority’s invocation of “grave constitutional concerns” to be unfounded. As he aptly stated: “Has the entire federal court system for the last 23 years as well as 36 states denied parties’ rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not.”

Justice Polston also stated that he could find no reported decision finding such a constitutional problem. Rather, the case law expressly rejects such constitutional concerns. Justice Polston further noted that empirical studies demonstrate that Daubert did not work a “sea change” in the law and that, in the mine-run case, most expert testimony is admissible under Daubert.

The Florida Supreme Court’s rejection of the Daubert standard as enacted by the Florida Legislature is a fascinating instance of the judiciary exercising its authority over matters of procedure in the face of legislative attempts to change outdated rules of evidence. But setting aside the separation-of-powers issues unique to Florida, the Florida Supreme Court’s decision goes against the decisive majority of states that have adopted the Daubert standard—a point well made by Justice Polston. Indeed, the march toward Daubert has accelerated in recent years, as the Florida Supreme Court majority itself acknowledged when it referenced the District of Columbia Court of Appeals’ endorsement of Daubert just last year (see our commentary on that here).

And perhaps most disappointing, the Florida Supreme Court’s explanation for rejecting Daubert contained no real analysis about why that standard raises serious constitutional concerns—or, put another way, why Frye doesn’t raise those concerns too. The court’s silence in response to Justice Polston’s dissent speaks volumes. In light of this decision, Florida remains an outlier on the admissibility of expert testimony.