On May 23, 2019, the Florida Supreme Court issued a per curiam opinion enacting the federal Daubert standard for admissibility of testimony by experts and overturning the previously held Frye standard. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, the U.S. Supreme Court held that expert testimony should assist the trier of fact in understanding the evidence or determining a fact in issue. The evidence goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Many considerations will bear on the inquiry under Daubert. Some factors are:
· Whether the theory or technique in question can be (and has been) tested.
· Whether it has been subjected to peer review and publication.
· Its known or potential error rate and the existence.
· Maintenance of standards controlling its operation.
· Whether it has attracted widespread acceptance within a relevant scientific community.
o This inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions they generate.
o Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
o The trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable.
In the recent Florida Supreme Court decision on May 23, 2019, enacting the Daubert standard, “a review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule…and the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.” Quoting United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5ht Cir. 1996). Furthermore, Fla. Stat. 90.702 of Evidence Code, also adopted on May 23, 2019, states that “If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: the testimony is based upon sufficient facts or data; the testimony is the product of reliable principles or methods; and the witness has applied the principles and methods reliably to the facts of the case.” Fla. Stat. 90.702 specifically states that an expert may be qualified on the basis of experience; see also Kumho Tire Co., 526 U.S. at 156.
In Heller v. Shaw Industries, Inc., 167 F.3d 146 (3rd Cir. 1999), “a number of courts, including our own, have looked favorably on medical testimony that relies heavily on a temporal relationship between an illness and a causal event.” See Zuchowicz v. United States, 140 F.3d 381, 385 (2d Cir. 1998). “Both a differential diagnosis and a temporal analysis would generally meet the requirements of Daubert.” We do not believe that a medical expert must always cite published studies in order to reliably conclude that a particular object caused a particular illness. “Experience with hundreds of patients, discussions with peers, attendance at conferences and seminars, detailed review of a patient’s family, personal, and medical histories, and thorough physical examinations are the tools of the trade, and should suffice for the making of a differential diagnosis even in those cases in which peer-reviewed studies do not exist to confirm the diagnosis of the physician.”
Therefore, the ruling of the Florida Supreme Court enacting the Daubert standard over the Frye standard changes an attorney’s analysis of expert testimony, opinions, and reports in some ways, but it is not a significant shift. Hopefully, Florida will stick with one standard of expert testimony for the foreseeable future so that attorneys will be able to adequately prepare their experts. Only time and subsequent case law will truly show what the Daubert standard means for Florida law.