Governor Rick Scott is heading to Jacksonville for the ceremonial signing of a bill changing the state standard for accepting testimony from expert witnesses.
Governor Rick Scott is to appear in Jacksonville today for a ceremonial signing of a bill on expert witnesses switching from the state’s Frye standard to the federal Daubert rule.
The deadline for the governor to act on House Bill 7015 was Tuesday. The bill requires the more stringent federal standard for expert testimony even though critics claim it will drastically increase the cost of litigation and put new burdens on an already strained state judicial system.
HB 7015 was supported by the business community primarily to do away with what it derided as "junk science" testimony in personal injury and malpractice litigation. However, it was opposed by civil plaintiffs attorneys and criminal prosecutors who maintained the change would bog down cases with needless hearings.
Florida was only one of 10 states still using the Frye test, a standard established in 1923 that allowed testimony as long as it came from qualified experts who adhered to generally accepted scientific principles in their field.
The Daubert standard, named for the 1993 U.S. Supreme Court decision Daubert v. Merrell Down Pharmaceuticals, focuses more on the scientific methodology and its relevance to the facts of the case. Experts under Daubert must have the training to give an opinion on a theory or technique that has been scientifically tested and published in peer-reviewed journals.
"Of course, the peer review and publication processes is controlled by publishers and corporations," said Gary M. Farmer Jr., a partner at Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman in Fort Lauderdale who spearheaded the Florida Justice Association’s opposition to the bill on behalf of plaintiffs attorneys. "By interjecting the peer review and publication requirements, the business community is able to delay scientific advancement and thereby avoid liability."
Neal Roth, a partner in the Coral Gables personal injury firm of Grossman Roth, said, "What I expect is that defendants are going to regularly file motions challenging the validity of the experts’ opinions."
In many cases, expert witnesses do not live in the jurisdiction where the case will be tried. This entails travel, giving testimony and answering the judge’s question.
"It’s a total waste of judicial effort," Roth said. "There’s a total misunderstanding of Daubert."
In 2011, accounting giant PricewaterhouseCoopers released a study on the effects of the Daubert standard. It found a 250 percent increase in Daubert challenges to all types of experts from 2000 to 2010. In 2010, there was a 49 percent success rate in witness testimony being stricken in whole or in part.
The dramatic increase had nothing to do with the number of cases filed as filings remained constant or rose only slightly.
Legal analysts of the study with trial court experience in Daubert hearings said judges had a tendency to use Daubert to pre-try a case and grant summary judgment in a manner that discourages appeals. This is due in part to a tendency of courts to selectively cite materials submitted in a misleading manner.
Gerard Williams, a former prosecutor now doing criminal defense work, predicted the standard would not be as detrimental in criminal cases, noting summary judgment can be sought only in civil cases.
A partner at Nichols, Williams & Julian in Fort Lauderdale, Williams said expert challenges in criminal cases would mostly be limited to experts in psychology and accident reconstruction.
"Daubert and Frye both give the judge a large amount of discretion," he said. "It seems to me that a judge interested in fairness is going to be able to come to a just result."
In any case, Williams said Daubert has been gaining acceptance for 20 years. It has been repeatedly vetted in the federal court system, and with Florida’s change will now be the standard in 41 states.