The ongoing debate in Florida over which expert standard — the Daubert standard or the Frye standard — for admitting expert testimony has now been resolved by the Florida Supreme Court. On October 15, 2018, in Delisle v. Crane, Case (No. SC16-2182), the Florida Supreme Court explained that “With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.” This alert provides the subrogation community with a timely update on this important shift in the law in Florida, and its potential impact on subrogation and recovery matters.
Since 2013, when the state legislature passed a law adopting the Daubert standard into the evidence code, the issue of whether Daubert, as a procedural rule change, or Frye, as previously adopted by case law in Florida, controls the admissibility of experts has been percolating in Florida. After the legislation was passed, the Florida Supreme Court issued a decision (In Re: Amendments to the Florida Evidence Code, No. SC16-181 (Feb. 16, 2017)) in which, on procedural grounds, the court declined to adopt the Daubert standard, signaling that a reaffirmation of Frye was possible. But that case was not an appeal from a litigated case on the merits and it left open the question of what standard should be used in Florida. Since then, state bar associations and interested groups have been commenting on the open question, all waiting for a case to come before the court to decide the issue. DeLisle was that case and we now have the answer: Frye is the standard to be used in Florida state courts.
The plaintiff in DeLisle alleged that he had contracted mesothelioma as a result of exposure to asbestos and obtained verdict of $8 million in his favor. After evaluating a challenge to the admission of the plaintiff’s experts’ testimony under Daubert, the Florida Fourth District Court of Appeal reversed, ordering a new trial for defendant R.J. Reynolds and entry of a directed verdict for defendant Crane. In particular, the intermediate appellate court found that the trial court “failed to properly exercise its gatekeeping function” under Daubert. This presented the controversy for the Florida Supreme Court to decide which standard should be used or, as one reads DeLisle, reaffirm that Frye is the law in Florida.
The Supreme Court’s decision in DeLisle turned on whether the Daubert legislation passed in 2013 amending the evidence code was substantive or procedural.1 The court found that the expert standard is procedural and therefore controlled by the court. And this rule established by case law could then only be repealed by a supermajority of two-thirds of each house of the Florida legislature, which had not occurred when the law was passed in 2013. In writing for the majority in DeLisle, Justice Peggy A. Quince explained: “This rule — that expert testimony should be deduced from generally accepted scientific principles — has been the standard in Florida cases and, today, we reaffirm that it is still the standard.” In support, the majority opinion outlined prior cases upholding the use of Frye. The court reasoned that the legislature’s change to Daubert had crossed over into the court’s authority to make procedural law and the legislature had not obtained enough votes to repeal the court’s rule in passing the legislation.2
The reaffirmation of Frye in Florida is, for lack of a better phrase, a big deal that bucks the trend in most other states.3 In order to appreciate the significance of this shift in Florida, a brief overview of the two standards is informative to illustrate the benefits of the more flexible Frye standard. Generally, the Daubert standard, which arose out of the case of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)4, provides that an expert is qualified if: (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. On the other hand, the Frye standard, which arose out of the case of Frye v. United States, 293 F. 1013, 104 (D.C. Cir. 1923), states that in order to introduce expert testimony it need only be “sufficiently established to have gained general acceptance in the particular field in which it belongs,” which is essentially a one factor test compared to the multi-factor test under Daubert. Indeed, under Frye, experts are generally admitted as qualified witnesses even when opinions are based on experience and training alone, without the lengthy testing or data that would be required under Daubert.
The immediate benefits of Frye in Florida are likely to be a reduction in litigation costs and less motions practice challenging experts, the latter of which should also somewhat expedite trial dates. The Daubert factors have, given their formation, naturally led to lengthy motions and hearings to disqualify experts based on one or all of the factors and, as a result, more preparation work by plaintiffs to conduct more testing and data collection to confirm details or scientific factors that are already generally accepted as preemptive work for Daubert challenges. This has historically led to more costs and time in litigation. On the other hand, Frye can be seen as a much more flexible and forgiving standard for litigants and is likely to lessen motions practice and expert challenges, thereby reducing costs incurred in supporting an expert’s opinions or litigating the expert phase of a case. It’s also worth noting that the Florida Supreme Court’s decision in DeLisle gave more power back to the jury, as opposed to judges, to evaluate competing expert opinions.
While DeLisle brings us back to a more favorable expert standard for plaintiffs in Florida, a word of caution is necessary. Recovery professionals still need to be mindful to hire qualified experts in all fields that come into play in a given loss investigation and that, ultimately, there is no substitute for a good investigation. That is, while Frye is certainly more favorable, challenges can still be made when using experts beyond their field of general knowledge and expertise.
If you are interested in reading the court’s full opinion in DeLisle, you can find it here.