Florida Supreme Court in Tallahassee, Florida. Photo: Raychel Lean/ALM. Florida Supreme Court in Tallahassee, Florida. Photo: Raychel Lean/ALM.

The Florida Supreme Court Thursday reversed its stance on a key rule for expert testimony, adopting the Daubert standard, and reversing a prior decision to keep Frye.

In a per curiam opinion, the high court ruled that earlier ”grave constitutional concerns” over the rule now “appear unfounded.” The ruling made Florida the latest to adopt the more stringent Daubert standard used in federal court, and move from Fyre.

Daubert stems from a 1993 U.S. Supreme Court decision and includes a five-prong test to weigh the scientific validity of expert witness testimony. It creates a higher bar for experts, who must attend a hearing before they’re allowed to testify. Under the Frye standard, experts can testify based on their opinion, bringing evidence that could be somewhat new or novel, not necessarily repeatable or peer-reviewed.

Federal courts switched to Daubert decades ago, and at least 36 state courts have followed suit, making Florida an outlier. The Florida Legislature passed the Daubert standard as law in 2013, but the justices had ruled that separation of powers invalidated that move because only they had the power to make it.

But now, a switch stemming from an underlying case involving an $8 million personal injury verdict in DeLisle v. Crane, successfully appealed by the defendants, who challenged the admission of expert testimony.

What now?

Thursday’s flip is most important for criminal cases, the way Holland & Knight lawyer William Shepherd sees it.

Shepherd has served as a state prosecutor and defense attorney, testified before the Legislature on the issue and has written an amicus brief for the National Association of Criminal Defense Lawyers during the litigation. To make his point, he recalled a Florida officer who often testified that his canine colleague could tell when defendants were guilty.

“I never wanted to have tell some grieving mother than junk science had walked her daughter’s killer out the door,” Shepherd said. “Likewise, I don’t want people’s liberties to be taken because the state has a dog whisperer or the smellologist that testified in Orlando, who said that he could tell how long a body had been gone from a confined space because his nose was specially trained.”

To Shepherd, the new opinion makes sense.

“It’s good for everyone in Florida,” he said. “Regardless of what your issues are before the court, you want your opponent to meet a high standard.”

James L. Ferraro of the Ferraro Law Firm feels differently. Ferraro represented plaintiff Richard DeLisle in the underlying case, and said he’s found that Daubert‘s higher standards have become “a sword, not a shield,” prompting excessive motions against expert witnesses.

“If it’s a qualified scientist talking about generally accepted science and it’s relevant to the case, it goes to the jury because that’s what a jury trial is about,” he said. “That’s where the gate-keeping should end.”

Ferraro said the move signaled ”a dark day in jurisprudence,” considering the court had already gone through its process and ruled differently.

“I don’t see any litigants in that opinion,” Ferraro said. “Who brought it up to the court?”

The issue divided the high court, and stark dissents accompanied Thursday’s opinion.

Justice Robert Luck agreed with the majority that the earlier decision was wrong, but felt the new ruling should have followed procedure, and stemmed from a proper appeal in DeLisle.

“If we could do that, then why have the procedure in the first place?” Luck wrote, later adding, ”I’d rather fold and wait to play another hand.”

Meanwhile, Justice Jorge Labarga found Frye better protected constitutional rights.

Appellate lawyer Elliot H. Scherker represented the defendants in the underlying case. He said he isn’t worried about shaky science creeping in, as “most courts will not allow junk to go to juries regardless of what standards are applied.”

Plus, Scherker sees the new opinion as the court exercising its constitutional right, particularly to adopt something most other states already have.

“There’s no taint, if you will, associated with adopting a rule as the Florida Supreme Court chooses to adopt a rule,” he said. “I don’t see this as a sea change.”

Executive Vice President of the Florida Chamber of Commerce David Hart welcomed the decision.

“This is an important step forward in improving Florida’s legal climate, and providing predictability in the courtroom, stability for job creators, and greater economic prosperity for Floridians,” Hart said in a statement.

Kansas Gooden was also pleased with the reversal, having filed an amicus brief as chairwoman of Florida Defense Lawyers Association’s Amicus Committee.

Gooden said, “Today’s decision will restore reliability, consistency and credibility to the expert witness process.”

Read the full court opinion:


Related stories: 

Florida Supreme Court Rejects Leading Daubert Evidence Standard

Game-Changer: Closely Watched Case Could Change Florida’s Evidence Rules