Florida Supreme Court Justice Peggy A. Quince. Photo: J. Albert Diaz

The Florida Supreme Court rejected a 2013 law intended to bring the state’s expert witness standard in line with most others as an overreach into court territory.

In a 4-3 decision, the court overturned a ruling by the Fourth District Court of Appeal and ordered reinstatement of an $8 million verdict for Richard DeLisle, who blamed his mesothelioma on exposure to asbestos in cigarette filters and in workplaces.

Writing for the majority, Justice Peggy Quince noted Florida’s adherence to the Frye standard set in a 1923 U.S. Supreme Court decision and the Legislature’s attempt to impose the Daubert standard followed in federal courts and 41 states.

“Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used,” Quince wrote. Justices Barbara Pariente, R. Fred Lewis and Jorge Labarga concurred.

The Legislature has authority over substantive law while the court is responsible for procedural standards, and the question of standards was one for the court alone to decide under the separation of powers, Quince said in a 39-page opinion.

The change in standard was backed by the Republican-controlled Legislature and business groups but opposed by plaintiffs attorneys.

Chief Justice Charles Canady, joined by Justices Ricky Polston and Alan Lawson, said the court lacked the legal jurisdiction to decide the case because there was no conflict among the district courts. Canady wrote the majority “charts an unprecedented and ill-advised course” in the case.

“The importance of an issue does not justify transgressing the constitutional bounds of this court’s jurisdiction,” he wrote. “Such an issue should be considered by this court only in a case that presents a proper basis for jurisdiction under our Constitution.”

Debbie Klauber, head of the appellate practice at Haliczer Pettis & Schwamm in Fort Lauderdale, noted, “Nobody expressed a disagreement that this was a procedural issue that’s within the court’s wheelhouse.”

Following the Daubert standard is “a lot more for the trial judge to do,” she said. “Basically, every expert is subject to being challenged as opposed to just new and novel theories. Frye only applies to new or novel theories.”

And the Supreme Court said DeLisle’s case didn’t deal with new or novel science.

Supporters of the Daubert standard maintained switching to it would keep “junk science” out of court cases. Opponents argued a change in standard would make cases more expensive and time-consuming.

Pariente, in a concurring opinion, said Daubert “has the potential to infringe on litigants’ constitutional right to access the courts.”

DeLisle won the Broward Circuit Court lawsuit blaming asbestos in the workplace and in filtered Kent cigarettes for his disease. R.J. Reynolds Tobacco Co. and gasket maker Crane Co. appealed.

The Fourth DCA in 2016 reviewed the testimony of expert witnesses under the Daubert standard and tossed out the verdict.

“The opinion comes as a great victory and justice for the DeLisle family who has been waiting for over five years from their verdict and should assist all Floridians in gaining appropriate access to the courts,” said David Jagolinzer of the Ferraro Law Firm in Miami, who represents the family.

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