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Florida Bar Rejects Daubert Standard of Expert Testimony by Richard A. Pollack and Scott Bouchner

Posted on December 16, 2015 by Richard Pollack

 

In December, the Florida Bar challenged the 2013 legislative adoption of the Daubert standard governing the admissibility of expert testimony in cases involving lost damages. In a vote of 33-9, the Florida Bar board of governors rejected the strict Daubert standard used by Federal courts and 27 states in favor of the Frye standard of expert testimony that was in place in Florida two years ago.

 

The Frye standard contains a Pure Opinion Exception (POE) that, unlike Daubert, allows an expert to provide testimony that relies solely on his or her experience and training without any regard for scientific fact.  This exception is so inclusive that Florida state courts infrequently heard challenges to the admissibility of expert testimony.  Conversely, the Daubert standard for expert testimony requires a rigorous three-part test to determine the scientific reliability of such testimony that would be admissible in a court of law.  As a result, plaintiffs relying on Daubert face greater scrutiny in building the facts of their cases, while defendants benefit from new opportunities to challenge the basis of those facts.

 

Since Florida Adopted the Daubert standard in 2013, Florida attorneys have filed numerous challenges to expert testimony under the Daubert guidelines, which, in some instances, have led to the Court’s exclusion of expert opinions. It is unclear whether the Florida Bar’s recent rejection of Daubert would or could have any impact on these decisions in the future, of if they would have been different under Frye.

 

The final decision regarding which standard the state will apply will rest in the hands of the Florida Supreme Court.

 

About the Authors: Richard A. Pollack, CPA, ABV, CFF, PFS, ASA, CBA, CFE, CAMS, CIRA, CVA, is director-in-charge of Berkowitz Pollack Brant’s Forensic and Business Valuation Services practice, where Scott Bouchner, CMA, CVA, CFE, CIRA, serves as a director. Both are frequent lecturers and published authors on topics related to forensic accounting and litigation support, and they served as litigation consultants, expert witnesses, court-appointed experts and forensic investigators on a number of high-profile cases. They can be reached in the CPA firm’s Miami office at 305-379-7000 or via email at info@bpbcpa.com.

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