In re Amendments to the Fla. Evidence Code

278 So.3d 551 (Mem)

IN RE: AMENDMENTS TO the FLORIDA EVIDENCE CODE.

No. SC19-107

Supreme Court of Florida.

May 23, 2019

PER CURIAM.

The Court, according to its exclusive rulemaking authority pursuant to article V, section 2(a) of the Florida Constitution, adopts chapter 2013-107, sections 1 and 2, Laws of Florida ( Daubert amendments), which amended sections 90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts), Florida Statutes, of the Florida Evidence Code to replace the Frye¹ standard for admitting certain expert testimony with the Daubert² standard, the standard for expert testimony found in Federal Rule of Evidence 702.

In In re Amendments to Florida Evidence Code , 210 So.3d 1231, 1239 (Fla. 2017), at the recommendation of The Florida Bar's Code and Rules of Evidence Committee (Committee), which occurred by a close vote of 16-14, the majority of this Court previously declined to adopt the Daubert amendments, to the extent that they are procedural, solely "due to the constitutional concerns raised" by the Committee members and commenters who opposed the amendments. Without now readdressing the correctness of this Court's ruling in DeLisle v. Crane Co. , 258 So.3d 1219, 1221, 1229 (Fla. 2018), we note that the decision determined that section 90.702 of the Florida Evidence Code, as amended by section 1 of chapter 2013-107,³ is procedural in nature. DeLisle did not address the amendment to section 90.704 made by section 2 of chapter 2013-107.⁴ Therefore, the Court has not determined the extent to which that amendment may be procedural.

As noted by In re Amendments to Florida Evidence Code , 210 So.3d at 1236-37, the Daubert amendments were considered by The Florida Bar's Code and Rules of Evidence Committee. The Committee provided majority and minority reports against and in favor of the Court's adoption of the Daubert amendments. The Board of Governors of The Florida Bar approved the Committee's recommendation, and extensive comments were received in response to the published recommendation. The Court held oral argument in the case. Because of the extensive briefing and arguments on this issue previously made to the Court, and mindful of the resources of parties, members of The Florida Bar, and the judiciary, we revisit the outcome of the recommendation on the Daubert amendments without requiring the process to be repeated.

We now recede from the Court's prior decision not to adopt the Legislature's Daubert amendments to the Evidence Code and to retain the Frye standard. As Justice Polston has explained, the "grave constitutional concerns" raised by those who oppose the amendments to the Code appear unfounded:

[T]he United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in 1993, and the standard has been routinely applied in federal courts ever since. The clear majority of state jurisdictions also adhere to the Daubert standard. See 1 McCormick on Evidence § 13 (7th ed. June 2016 Supp.). In fact, there are 36 states that have rejected Frye in favor of Daubert to some extent. See Charles Alan Wright & Victor Gold, 29 Federal Practice and Procedure § 6267, at 308-09 n.15 (2016). Has the entire federal court system for the last 23 years as well as 36 states denied parties' rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony? Of course not.

As a note to the federal rule of evidence explains, "[a] review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule." Fed. R. Evid. 702 advisory committee's note to 2000 amendment. " Daubert did not work a ‘seachange over federal evidence law,’ and ‘the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.’ " Id. (quoting United States v. 14.38 Acres of Land , 80 F.3d 1074, 1078 (5th Cir. 1996) ).

Furthermore, I know of no reported decisions that have held that the Daubert standard violates the constitutional guarantees of a jury trial and access to courts. To the contrary, there is case law holding that the Daubert standard does not violate the constitution. See, e.g.,Junk v. Terminix Int'l Co. , 628 F.3d 439, 450 (8th Cir. 2010) (rejecting legal merit of the constitutional claim "that the district court violated [appellant's] Seventh Amendment right to a jury trial by improperly weighing evidence in the course of its Daubert rulings" and explaining that "Junk does not cite any case for the notion that a proper Daubert ruling violates a party's right to a jury trial"); E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 558 (Tex. 1995) (rejecting claim "that allowing the trial judge to assess the reliability of expert testimony violates [the parties'] federal and state constitutional rights to a jury trial by infringing upon the jury's inherent authority to assess the credibility of witnesses and the weight to be given their testimony"); see alsoGen. Elec. Co. v. Joiner , 522 U.S. 136, 142-43, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (rejecting "argument that because the granting of summary judgment in this case was ‘outcome determinative,’ it should have been subjected to a more searching standard of review" and explaining that, while "disputed issues of fact are resolved against the moving party[,] ... the question of admissibility of expert testimony is not such an issue of fact").

Accordingly, the ... "grave constitutional concerns" regarding the Daubert standard are unfounded.

In re Amends. to Fla. Evidence Code , 210 So.3d 1231, 1242-43 (Polston, J., concurring in part and dissenting in part). While we find Justice Polston's observations instructive in deciding to now adopt the Legislature's Daubert amendments, we do not decide, in this rules case, the constitutional or other substantive concerns that have been raised about the amendments. Those issues must be left for a proper case or controversy.⁵

Additionally, as outlined in the Committee minority report, the Daubert amendments remedy deficiencies of the Frye standard. Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert , 509 U.S. at 589, 113 S.Ct. 2786 (holding that the Federal Rules of Evidence superseded Frye ). Moreover, also as argued in the minority report, the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.

Accordingly, in accordance with this Court's exclusive rule-making authority⁶ and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature,⁷ we adopt the amendments to sections 90.702 and 90.704 of the Florida Evidence Code made by chapter 2013-107, sections 1 and 2. Effective immediately upon the release of this opinion, we adopt the amendments to section 90.702 as procedural rules of evidence and adopt the amendment to section 90.704 to the extent it is procedural.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, LAGOA, and MUÑIZ, JJ., concur.

LAWSON, J., concurs and concurs specially with an opinion, in which CANADY, C.J., and LAGOA and MUÑIZ, JJ., concur.

LABARGA, J., dissents with an opinion.

LUCK, J., dissents with an opinion.

LAWSON, J., concurring and concurring specially.

I fully concur in the majority opinion and write separately to address Justice Luck's contentions that: (1) we lack the authority to adopt this rule amendment now, and (2) we should not reconsider whether to codify the Daubert standard into our procedural rules until "we have a proper case or controversy," see dissenting op. at 560, in which to reconsider DeLisle v. Crane Co. , 258 So.3d 1219, 1228-30 (Fla. 2018) (holding that the standard for use in determining the admissibility of scientific evidence is procedural and not substantive, such that the standard can only be validly adopted by rule of court, and holding the statute adopting the Daubert standard to be an unconstitutional encroachment on this Court's rulemaking authority).

With respect to Justice Luck's contention that we are only authorized to adopt or amend a rule of court pursuant to Florida Rule of Judicial Administration 2.140, I respectfully disagree that the majority is not following the multistep process set forth in rule 2.140. As explained in the majority's per curiam opinion, that process was followed here, with the result that the Court has had the benefit of Florida Bar recommendations, oral argument, and extensive public comments, pro and con. All that this Court is doing now is reconsidering its earlier administrative (i.e., non-adjudicative) decision not to adopt the proposed Daubert amendments. Nothing in the text of rule 2.140 prohibits this Court from doing so.

Perhaps more fundamentally, rule 2.140 sets forth the procedure "followed for consideration of rule amendments generally. " Fla. R. Jud. Admin. 2.140(a) (emphasis added). Although this is the rule that others are directed to follow when requesting that we adopt or amend one of our rules—and that we generally follow as well—our internal operating rules expressly recognize our inherent constitutional authority to amend our own rules, on our own motion, at any time, providing:

G. Rulemaking.

1. General. At the request of any justice, the Court, on its own motion, may adopt or amend rules. When the Court so acts, it generally will allow interested persons to file comments by a date certain. A specific effective date is usually designated by the Court. When the Court adopts or proposes a rule

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