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Calling Expert Witnesses to Trial: Daubert vs. Frye Standard

In a battle over which standard to use when calling expert witnesses to trial, the Florida Supreme Court will decide a separation-of-powers question.

In Florida, there is controversy between business and legal groups on whether to use the Daubert or Frye standard. Effective July 1, 2013, Florida became a Daubert state. Florida adopted Federal Rules of Evidence 702.3 almost verbatim.  Federal courts use the Daubert standard.

Business groups argue Daubert is not a standard that favors either plaintiffs or defendants, but ensures plaintiffs and defendants are confronted with just reliable expert evidence.

Those in favor of the Daubert standard explain that the standard reduces junk science before fact finders.  Those against the standard contend the standard increases costs and causes litigation delays.

Prior to Daubert, Florida courts used the Frye test for admissibility of expert witness testimony.  Frye required the thing from which the deduction is made be sufficiently established to have gained general acceptance in the particular field in which it belongs.  If the expert opinion is not based on new or novel theories, its admissibility is tested under the pure opinion analysis, which is supported through the expert’s own experience and training.

The Florida Legislature and Governor Rick Scott approved going to the Daubert standard, but the Bar believes it is the Supreme Court, not the Legislature, that has the constitutional authority to decide what expert-witness standard to use. Since mid-March 2016, the Florida Bar Board of Governors and a significant Bar committee recommended the Florida Supreme Court justices reject the 2013 expert-witness law.

Senator Garrett Richter and Representative Larry Metz, Republican lawmakers who sponsored the 2013 legislation, filed comments on April 1, 2016 with the Supreme Court to dispute the separation-of-powers questions the Bar raised.

If the 2013 law dealt with a procedural issue on whether a party is allowed to use evidence in a claim, rather than a right of action, cause of action, or defense, it is not the will of the people, who decides the expert witness standard.

Expert witnesses may play a critical role in lawsuits, especially in cases that deal with detailed scientific evidence. The Daubert standard has a three-part test in deciding whether to admit expert testimony:

  1. Whether the testimony is “based upon sufficient facts or data;”
  2. Whether it is the “product of reliable principles and methods;” and
  3. Whether a witness has “applied the principles and methods reliably to the facts of the case.”

The Daubert test is more restrictive than the Frye test.

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