Debbie Klauber, with Haliczer Pettis & Schwamm in Fort Lauderdale.

In 21st century litigation, cases in the civil and criminal context often come down to a battle of the experts. Those experts, who are paid tens of thousands of dollars, if not more, are given the job of persuading and convincing our juries how to deliver justice. Just how far those experts can, or should be allowed to—push the envelope with their opinions—has sparked an ongoing debate in Florida. After working together for more than 40 years to create and maintain rules of evidence, the Florida courts and the Florida Legislature have reached a fundamental disagreement on this point. And, for the moment, anyway, the Florida Supreme Court has the final word.

Generally speaking, the Florida Supreme Court has the power to enact procedural law while the Florida Legislature retains responsibility over substantive law. As explained by the Florida Supreme Court, substantive law is that which “defines, creates or regulates rights,” and procedural law is “the form, manner or means by which substantive law is implemented.”

In an effort to reduce appeals and confusion, the Florida Supreme Court and the Florida Legislature codified these rules, both procedural and substantive, in the Florida Evidence Code in 1979. And although these branches of government have generally agreed about the revisions that have been made over the years, there have been a few occasions where the Legislature has made statutory changes to the Evidence Code, which the Florida Supreme Court has declined to adopt. This is one of them.

For many years the Florida courts have followed the standard set forth in Frye v. United States, a U.S. Supreme Court decision from 1923. Generally speaking, the Frye standard requires expert testimony to be well-recognized, such that an expert cannot give an opinion in court unless that opinion has gained general acceptance in the particular field in which it belongs. As explained by the Florida Supreme Court, the Frye standard allows the scientific community to determine whether certain evidence is reliable enough for the courtroom.

Congress modified the Federal Rules of Evidence and, in 1993, the U.S. Supreme Court modified the standard for admitting scientific evidence in federal courts in Daubert v. Merrell Dow Pharmaceuticals. The purpose of Daubert was to allow additional relevant evidence to be considered by the courts, even if it was based on scientific methods or principles that were not yet generally accepted in the given scientific community. It was, by design, a more lenient, flexible standard.

However, in the 25 years after Daubert was decided, the Florida courts continued to apply the Frye standard. The Florida Supreme Court believed the Frye standard to be a higher standard of reliability—because it allows the judge to make the decision about whether the opinion is sufficiently reliable, instead of allowing the jury to hear that opinion and decide how much weight it should be given.

In 2013, the Florida Legislature amended the Evidence Code and revised the statute to follow Daubert. Now, five years later, the Florida Supreme Court has finally spoken on the issue and concluded that the statute is procedural in nature, and that the Florida Legislature has overstepped its bounds and infringed upon the court’s rulemaking authority in its attempt to adopt Daubert. In its recently released decision in DeLisle v. Crane, the court remains steadfast in its preference, noting, “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.”

The court also took note of the fact that Daubert proceedings, essentially fights over the admissibility of an expert’s testimony before the start of trial, impose an additional burden not only on the courts, but the litigants themselves, an issue that was raised by a number of briefs that were presented to the Court by interested parties. Although several of the Florida Supreme Court Justices felt that it was not proper for the court to accept jurisdiction over the case, none of those dissenting Justices suggested a preference for, or even commented on, the Daubert standard.

Practically speaking, the Florida courts’ adherence to Frye means that expert testimony is only subject to a challenge when it is new or novel. Not every opinion is subject to judicial scrutiny, as is the case under Daubert. It seems that the Florida courts’ are inclined to allow the experts themselves to make the determination about whether or not certain testimony is reliable, instead of putting that decision into the hands of judges who do not possess the kind of training or experience in a given field to understand the science actually underlying an expert’s opinion, much less to determine if the opinion is reliable enough for a jury to consider at trial. Succinctly, if we wouldn’t let medical malpractice lawyers tell doctors how to operate, why should we ask judges to determine whether a physician’s opinion on the medicine is reliable enough to be heard by a jury?

For the moment, the decision has been made. The Florida courts will continue to follow the Frye standard.

Debbie Klauber, a partner with Haliczer Pettis & Schwamm, oversees the firm’s trial support and appellate work, providing guidance to the litigation team throughout the state of Florida.