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Lawyers, Legislators Debate Changing Florida's Expert Witness Standards

February 13, 2013 - 6:00pm

For the third year in a row, a bill has been introduced into the Legislature that, if passed, would alter Floridas nearly century-old standards for admitting expert testimony in civil and criminal trials. The measure has sharply divided the legal community.

The Florida House Civil Justice Subcommittee approved PCB CJS 13-02 ("Expert Testimony") along a 9-4 party-line vote Wednesday evening. The bill is the brainchild of subcommittee chairman Larry Metz, R-Yalaha, who is himself an attorney.

If approved by the full House and the Senate, the bill would change the standards by which Florida judges admit expert testimony. Under the current "Frye" standard (named after a 1923 U.S. Supreme Court case), expert witness testimony can only be admitted if it is "sufficiently established to have gained general acceptance in the particular field in which it belongs." The proposed bill would align Florida's courts to the federal "Daubert" standard (named after a Supreme Court case decided in 1993), which admits expert testimony so long as the judge finds it to be based on scientifically sound principles.

Florida is one of only 10 states that adhere to the older "Frye" standard.

At first glance, it might appear that Daubert is the more flexible standard, since it allows for the admission of scientific or technical testimony that does not enjoy scientific consensus, but theres a little bit more to it than that.

In order to get around the narrowness of the pure Frye standard, the Florida Supreme Court has carved out a pure opinion exception, which allows experts to give testimony that does not meet the Frye standard so long as they are merely offering an opinion, as opposed to stating a scientific or technical fact.

Metzs bill establishes a three-pronged test which must be applied by a judge before he allows an experts pure opinion testimony to be admitted:

a) The testimony must be based upon sufficient facts or data,

b) the testimony must be the product of reliable principles and methods, and

c) the expert must be shown to have applied the principles and methods reliably to the facts of the case.

Experts are usually the only witnesses in a civil or criminal trial who are allowed to offer opinion evidence. Supporters of Metzs bill say their ability to utilize that exception needs higher scrutiny.

Most witnesses testifying in a court room are fact witnesses. ... Based upon their training and background and experience, we let experts do something that most witnesses cant do; we let them offer an opinion, explains attorney William Large, president of the Florida Justice Reform Institute, in an interview with Sunshine State News. Larges organization, which is affiliated with the Florida Chamber of Commerce, supports the bill. It is very profound, what [these experts are] allowed to do. Before they do that, we want to ensure that the judge can sufficiently act as a gatekeeper.

The bill has far from unanimous support. It is being opposed by several trial lawyers (via the Florida Justice Association), House Democrats, and by each of the states 20 elected state attorneys (who are represented by the Florida Prosecuting Attorneys Association [FPAA]).

The Supreme Court of Florida has twice, within the last decade, said that they wouldnt adopt Daubert when given the opportunity because Frye was the more conservative and reliable standard for handling expert witnesses, insists Buddy Jacobs, general counsel for the FPAA. The Daubert standard would be more expensive and would create trials within trials.

Jacobs explains to SSN that, under the current Frye standard, a judge does not get into the weeds of what the science really is; he simply acquaints himself for example, through reading a treatise with what standard procedure is in a particular field, and admits it without making a personal judgment about its validity.

He says that, under the Daubert system, costs would skyrocket as defense attorneys would bring experts testifying about experts testifying about experts, while the state expends taxpayer dollars to produce more experts for rebuttal and to prosecute trials that are drawn out longer.

Large dismisses as absurd accusations that defense attorneys would abuse the system in this way, deliberately dragging out a case in order to bill more hours. He points out that successful challenges to an expert witness can effectively end a litigation sooner than it would if an expert were given time to testify, particularly if that experts testimony is the only evidence a plaintiff has at his disposal.

Rep. Cynthia Stafford of Miami, Democratic ranking member of the Civil Justice subcommittee and an attorney herself, tells SSN that Floridas Frye standard has served the state well for almost 100 years, and she sees no reason to change it.

Personally, I think that there is nothing wrong with the current standard. Its not a broken system, and theres no need to change it, she says. "I think that the information that you would get from Daubert you would be able to extract from Frye as well. It will cost more money to get at the same result.

Asked why she believed the business community was lining up behind Metzs measure, she speculated that the prospect of Daubert hearings to challenge the validity of expert testimony could potentially discourage people from bringing suit against these businesses when theres some sort of wrong alleged.

But the bills sponsor insists his measure is simply a matter of Florida going with what has worked best nationally.

We have 20 years of experience in the federal system and a majority of states adopting Daubert, and others that are moving toward it, Metz tells the News. Its clearly been validated over the time, and I think it would give a higher plane of credibility to experts that are testifying.

Contact Eric Giunta at or at (954) 235-9116.

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