Florida adopts the Daubert standard for admissibility of expert testimony

Experts can play an integral role in construction disputes. At times construction litigation becomes a battle of the experts. Consequently, it is important to use an expert(s) that is not only well versed in his or her field, but an expert who is also able to provide admissible expert opinions in litigation.

With the passage of House Bill 7015, effective July 1, 2013 and amendment of Florida Statute § 90.702 (Testimony by Experts), Florida has abolished the former Frye standard for the admissibility of expert testimony. See, Frye v. United States, 293 F. 1013 (D.C.Cir.1923), adopted by the Florida Supreme Court in Bundy v. State, 471 So.2d 9 (Fla.1985). The prior version of Florida Statute § 90.702 provided that:

90.702 Testimony by experts.—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; however, the opinion is admissible only if it can be applied to evidence at trial.

Florida has now essentially adopted the Daubert standard for admissibility of expert testimony. See, Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As recently amended Florida Statute § 90.702 now provides the following with respect to the admissibility of expert testimony:

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:

1. The proposed expert testimony is based on sufficient facts or data;
2. The proposed expert testimony is the product of reliable principles and methods; and
3. The expert has applied the principles and methods reliably to the facts of the case.

The prior admissibility requirement that the expert’s testimony actually assist the trier of fact [judge or jury depending upon the case] in understanding the evidence or a fact at tissue appears to remains the same.

Previously, experts in Florida state court actions have, in certain situations, been allowed to offer expert opinions based solely upon their training and experience (under the rationale that Frye was inapplicable). It remains to be seen, however, whether such opinions will now be subject to a different level of scrutiny and/or admissibility under the amended version of Florida Statute § 90.702 and a Daubert analysis.

Florida state courts may also take on more of a gatekeeper role to keep out of the courtroom “junk science” type expert opinions and expert opinions that are connected to the facts of the case only by the ipse dixit (“because I said so”) of the expert itself.

Time will tell. Regardless, it will certainly be interesting to see how Florida state courts will now address the admissibility of expert testimony.