Fri 24th May | 2013

Florida’s New Expert Witness Standard Chips Away at Victims’ Rights

Legal Insight BY

In another insidious effort to pass “tort reform,” the Florida Legislature passed HB 7015, a bill law changing how Florida courts address the admissibility of expert testimony. Governor Rick Scott signed the bill into law earlier this month. While the law appears esoteric and hyper-technical, average Floridians should understand it is another step chipping away at the rights of victims hurt by the negligence of others.

Daubert v. Merrill Dow Pharmaceuticals, Inc. and “Frye v. the United States” are cases that embody two approaches for guiding trial judges when they rule whether purportedly “scientific” evidence may come before a jury. For years Florida followed the Frye standard, but now joins a growing list of states using the Daubert standard.

Frye requires that the proponent of scientific evidence, both the underlying scientific principle as well as the testing procedures used to apply the particular principle to the facts, prove the general acceptance of that science in the scientific community, before the jury may hear it. The Florida Supreme Court has long embraced the Frye test because it helps to ensure the reliability of “new or novel” scientific evidence. It also imposes a higher standard of reliability than that allowed by Daubert.

Florida’s courts have always given deference to “experts,” who use their knowledge, training, and experience to form “pure” opinions, without the need to resort to “novel” scientific principles and techniques. Disrespecting such knowledge, training, and experience, HB 7015 no longer allows physicians or other experienced practitioners to testify regarding their opinions, without first forcing the trial judge to evaluate that expert’s testimony through a list of factors contrived by lawyers, judges, and legislators.

Since 1993, when Daubert became law, and other states began adopting it, the statistics show it actually favors parties who defend against negligence actions. Daubert emboldens judges to scrutinize scientific evidence more closely, which inevitably helps dismantle victims’ ability to prove their cases, especially in complex medical malpractice, product liability, and toxic torts cases, where the disputes turn on scientific evidence. The flexibility of Daubert factors gives judges great power to make judgments regarding the merits of the evidence; not just its admissibility. That results in the exclusion of expert testimony, which often leads to the legal termination of a victim’s case long before he or she gets to present it to a jury.

Regardless of which standard is the law here in Florida, our legal team is prepared. For years, our attorneys have tried cases in Federal Court and numerous other states where Daubert has already been implemented.