The Law Governing Admissibility of Expert Witness Testimony in Florida – It’s Frye Not Daubert! by Richard S. Fechter, JD, CAMS, CFE
Posted on December 05, 2018 by Richard Fechter
In a crucial 4-3 decision, the Florida Supreme Court in Delisle v. Crane, Case (No. SC16-2182) (Oct 15. 2018), clarified the law governing the admissibility of expert witness testimony in Florida, moving away from the strict Daubert standard used in federal courts to the less rigorous Frye standard. Previously, Florida trial courts that were unsure of which standard to apply when analyzing expert testimony and corresponding pretrial motions typically utilized the Daubert standards enumerated under Federal Rule of Evidence 702.
In 2013, the Florida Legislature passed a law modifying Florida Statute Section 90.702 to adopt the Daubert standard, despite the Florida Supreme Court’s repeated affirmations of Frye. The recent decision in Delisle held that the Legislature overstepped its authority when it adopted Daubert and enacted the 2013 legislation because the manner in which trials and litigation are to be conducted are “procedural” matters, which are entirely within the province of the Florida Supreme Court under Article V, Section 2(a) of the Florida Constitution. The new ruling invalidates Florida Statute Section 90.702 and rejects the Daubert standard for admitting expert testimony in Florida courts.
What are Frye and Daubert?
The Frye and Daubert tests are competing tests that courtroom judges use, prior to trial, to examine the reliability and admissibility of expert testimony that a party seeks to introduce into evidence once the trial begins. The assessment usually follows a request (or Motion) by one of the parties in the legal proceeding. However, that is where the similarities between these two competing standards for assessing the admissibility of expert testimony end.
First, Frye does not apply to all expert testimony. Rather, it applies narrowly to testimony that a judge determines to be “new or novel scientific evidence” that is not firmly well-established in the scientific community. Only after a Court makes such a determination will it then consider the substance of the admissibility of expert testimony.
The initial assessment required under Frye includes a determination that the expert testimony seeking to be admitted is generally accepted in the field. According to Frye, “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’” Thus under Frye, the experts’ methods and techniques must be “generally accepted” in the scientific community. In practice, it means a judge should evaluate evidence whether a testifying expert forms their opinion from generally accepted principles. This might require a judge to review the expert testimony, scientific and legal publications, and judicial opinions to assess general acceptance of the principles underlying an expert’s opinion.
In comparison, Daubert applies to ALL expert opinions, not just those opinions determined to be new or scientifically novel. Under Daubert, the initial assessment performed by the Court includes an evaluation of the expert’s methods and requires the expert testimony to be not only generally accepted (Frye) but also, “scientifically reliable” and relevant to assist the trier of fact in determining pertinent issues in the case at hand. The Court makes these determinations after a Daubert motion is made and a hearing is conducted. Court hearings to assess the admissibility expert testimony under the Daubert test are often lengthy, technical, and costly; more costly, on average, than hearings under the Frye test. The hearings performed under Daubert to determine admissibility are sometimes referred to as “mini trials,” in which a judge might hear evidence and arguments and before ruling that all or some portion of an expert’s opinions are admissible or inadmissible. These mini trials, also known as Daubert hearings, address many of the substantive issues that are expected to be litigated at trial.
The Florida Supreme Court in Delisle summarized these two competing tests as follows:
“Frye relies on the scientific community to determine reliability, whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.” Moreover, Daubert covers more subject areas and involves a multi-factorial analysis to determine admissibility. In contrast, Frye is simply general acceptance inquiry.
The Delisle Opinion and Its Effect on Forensic Accounting Expert Witnesses
Delisle will have a profound impact on litigation in Florida. It ensures that the Frye standard will remain in Florida courts, and, in turn, make it more difficult to strike or exclude expert testimony. This, according to most scholars, is because Daubert involves a much more vigorous threshold for admitting scientific evidence. Without the Daubert requirements of an evidentiary hearing or the scientific reliability and relevancy of expert testimony, there likely will be less barriers to the introduction of expert opinions.
By reverting to the Frye standard, Florida courts will likely raise fewer challenges to litigation involving testimony from forensic accountants and valuation analysts. This is not only because Frye applies only to expert opinions relating to new scientific principles (which arguably does not include many areas of forensic accounting), but also because Frye (unlike Daubert) allows experts to provide testimony that relies solely on their experience and training without regard for scientific fact. This exception is so inclusive that Florida state courts infrequently hear challenges to the admissibility of expert testimony.
Testifying experts are now clearly under one evidential standard for admissibility in Florida courts (Frye) and a different one in Federal courts in the US (Daubert). For forensic accounting expert witnesses, this likely means there will be fewer challenges to exclude expert testimony in Florida cases.
About the Author: Richard S. Fechter, JD, CAMS, CFE, is associate director of Berkowitz Pollack Brant’s Forensic and Business Valuation Services practice, where he has extensive experience conducting forensic accounting investigations and providing expert analysis on the economic, finance, and accounting issues pertaining to economic damages and other business matters in complex commercial disputes. He can be reached in the firm’s Miami CPA office at (305) 379-7000 or via email at email@example.com.
Daubert vs. Frye – Key Differences
|Applies to all expert opinions, whether they are consider new or not.||Applies only to expert opinions considered to relate to a “new or novel” scientific issue.
|State statute and the courts determine admissibility of expert testimony.
|Experts’ opinions must be generally accepted in the scientific community to be admissible in Court.|
|Expert’s testimony must be based upon sufficient facts or data.
|No sufficient facts or data requirement|
|Expert’s testimony must be the product of reliable principles and methods (i.e., scientifically reliable).
|No reliability requirement|
|Expert’s testimony must be relevant to the case at issue.
|No relevancy requirement|
|The expert must apply the foregoing principles and methods reliably to the specific facts of the case.
|No reliability requirement
|Determination of whether the principles and methodologies of the offered expert testimony are reliable by considering:
· Whether the expert’s theory or technique can, or has been, tested;
· Whether the theory or technique has been subject to peer review and publication;
· Whether there is a known or potential rate of error of the technique or theory for a particular scientific technique; and
· Whether the theory or technique is generally accepted in the relevant scientific community.
|No review of principles and methodologies used or how those principles and methodologies were applied to facts of case at issue|
|Judges act as “gatekeepers” who regulate the admissibility of expert testimony based on relevant factors.
|Admissibility of expert testimony depends on the standards set by the expert’s scientific community.|
 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
 The Frye standard was originally codified under Florida Statute Section 90.702,
“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.”
The language from this original statute is expected to be reinstated at the next legislative session.
 See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Hadden v. State, 690 So. 2d 573 (Fla. 1997).
 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).
 See, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (applying Daubert standard to non-scientists).