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In November 2018, we reported that the Florida Supreme Court inDelisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018), found that “Frye, not Daubert, is the appropriate test in Florida courts.” Like Queen Daenerys crossing the Narrow Sea with three dragons and an armada to claim the Iron Throne, we all thought Frye was going to finally win in Florida. However, on May 23, 2019, in In re: Amendments to the Florida Evidence Code., Case No. SC19-107, the Florida Supreme Court switched sides and, effective immediately, found that Daubert now applies in Florida courts. For subrogation professionals, the opinion was the legal equivalent to whispering “Dracarys” to Drogon, setting the field of expert qualification issues ablaze again in state courts in Florida.
Generally, the Daubert standard, which originated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), provides that an expert is qualified if: (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. However, under the Frye admissibility standard, which originated in Frye v. United States, 293 F. 1013, 104 (D.C. Cir. 1923), expert testimony need only be “sufficiently established to have gained general acceptance in the particular field in which it belongs,” which is essentially a one factor test compared to the multifactor test under Daubert. Under Frye, experts are generally admitted as qualified witnesses even when opinions are based on experience and training alone, without the lengthy testing or data that may be required under Daubert. The common thinking is that Frye leads to less motions’ practice than Daubert, which, by the nature of its factors, lends itself to more ways to challenge experts and their opinions.
Despite finding in DeLisle just seven months ago that Frye had historically been the standard in Florida, the Florida Supreme Court has now switched its position to find that “according to its exclusive rulemaking authority,” it could adopt legislation passed in 2013 adding Daubert into the Florida Evidence Code, thereby effectively making Daubert the standard for expert admissibility in Florida. The...
