An Update on the Daubert Standard in Florida
In 2013 the Florida Legislature amended Florida Evidence Code § 90.702 to adopt the test of admissibility of expert testimony as provided for in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Prior to the Legislature’s adoption of the Daubert standard, “there were two avenues under [§ 90.702] to the admissibility of expert testimony under Florida law.” Perez v. Bell South Telecomm., No. 3D11-445 (Fla. 3d DCA Apr. 23, 2014). Under the “first avenue” commonly referred to as the Frye test, if an expert is intended to offer testimony espousing a new or novel scientific theory, principle or discovery, then “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the field in which it belongs.” Perez at *3, quoting Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923).
Prior to the Legislature amending § 90.702, expert testimony could be admitted through a “pure opinion” path. Perez at *3. Under this “second avenue,” expert testimony is admissible because it is based on the expert’s personal experience, observation and training, not a “new or novel” scientific theory. Here, the Frye test does not apply to the ultimate opinion of the expert, provided the methods the expert used to reach his or her opinion were generally accepted scientific methods under Frye. Perez at *3, citing Marsh v. Valyou, 977 So.2d 543 (Fla. 2007).
When Florida adopted the Daubert standard in 2013, the Legislature made its intentions clear: the amendment was intended to “prohibit in the courts of this State pure opinion testimony as provided in Marsh v. Valyou.” See Ch. 2013-107, § 1, Laws of Fla. (2013). On July 1, 2013, Florida’s amendments to section 90.702 went into effect and Florida changed from a Frye state to a Daubert state regarding expert testimony.
The plaintiff in Perez v. Bell South recently challenged the validity of the Legislature’s mandate that Florida follow the Daubert standard instead of Frye. According to the plaintiff in Perez, the Legislature’s adoption of the Daubert standard infringes on the rulemaking authority of the Florida Supreme Court and is in direct conflict with prior decisions of both the Florida Supreme Court and other District Court of Appeals. The Perez plaintiff’s argue in her brief filed with the Florida Supreme Court that the Third District Court of Appeal had not authority to validate a procedural statute such as Fla. Stat. § 90.702. Instead, the plaintiff contends that the Florida Supreme Court has exclusive authority to adopt court rules and that any “statute which purports to create or modify a procedural rule of court is constitutionally infirm.” See Petitioner’s Brief on Jurisdiction at *6, Perez v. Bell South, C.A. No. SC14-1029, filed July 1, 2104, filing no. 15458903, citing State v. Raymond, 906 So.2d 1045, 1048 (Fla. 2005); accord Haven Fed. Sav. & Loan Assoc. v. Kinan, 579 So.2d 730, 732 (Fla. 1991).
The plaintiff in Perez is the child of a former employee of Bell South bringing a negligence claim against the mother’s former employer for the plaintiff’s premature birth. Plaintiff’s mother experienced a high risk pregnancy during her employment. The mother’s doctor advised Bell South to grant the mother certain accommodations to address the risks associated with her pregnancy. Soon after making the accommodation requests, plaintiff’s mother was terminated from her employment. Days later, plaintiff’s mother suffered a placental abruption and delivered plaintiff twenty weeks early. Perez at *1.
During the course of the Perez litigation, plaintiff’s only medical expert testified that the workplace stress, exacerbated by the employer’s refusal to accommodate the plaintiff, caused the abruption of the mother’s pregnancy. Id. at *1. On appeal, plaintiff argued that her expert’s testimony was admissible as pure opinion under Marsh v. Valyou, 977 So.2d 543 (Fla. 2007). Citing Daubert, the Third District in Perez held that “[s]ubjective belief and unsupported speculation are henceforth inadmissible.” Perez at *4, citing Daubert, 509 U.S. at 590. Applying Daubert, the Perez court noted there was no scientific support for the expert’s opinion. Id. (finding that general acceptance in the scientific community alone is no longer a sufficient basis for admitting expert testimony).
It will be interesting to see how the Florida Supreme Court resolves the Perez appeal. Central to the appeal is whether the Legislature, in adopting the Daubert standard, created or modified a procedural rule of the Supreme Court. Those opposed to applying the Daubert standard will likely agree with the Perez plaintiff, arguing that the Legislature improperly encroached on exclusive judicial authority. Those supporting what many view as a heightened evidentiary hurdle under Daubert, will likely oppose the plaintiff’s appeal in Perez, arguing that the Legislature’s amendment to the Florida Evidence Code established substantive, not procedural law.