In a crucial 4-3 decision, in Delisle v. Crane, Case (No. SC16-2182) (Oct 15. 2018), the Florida Supreme Court has clarified the law governing the admissibility of expert witness testimony in Florida—moving away from the Daubert standard utilized in federal courts, to the Frye standard. Prior to Delisle, Florida courts were unsure whether to analyze expert testimony and corresponding pretrial motions under Daubert or Frye, so most trial courts utilized Daubert.

This confusion arose in 2013 when the Florida Legislature passed legislation modifying Florida Statute Section 90.702 to adopt the Daubert standard, despite the Florida Supreme Court’s repeated affirmations of Frye. Delisle held that the Legislature overstepped its authority when it adopted Daubert, because the manner in which trials and litigation are to be conducted are “procedural” matters—which are entirely within the province of the Florida Supreme Court under Article V, Section 2(a) of the Florida Constitution.