The Law Governing Admissibility of Expert Witness Testimony in Florida – It’s Back to Daubert! by Richard S. Fechter, JD, CFE, CAMS
The Florida Supreme Court issued a per curiam opinion on May 23, 2019, reversing its decision seven months earlier in Delisle v. Crane, (Case No. SC16-2182) concerning Florida Statute Section 90.702 and the admissibility of expert witness testimony in the state. The court made a complete about face, rejecting the less rigorous Frye standard established in Delisle in favor of the strict Daubert standard for expert used by federal courts. According to Justice Poston, the federal court system has followed the Daubert standard for 23 years, which has also been adopted by 36 states, and the “grave constitutional concerns” that led to the rejection of Daubert in the Delisle decision were unfounded.
By reversing course and reverting back to the Daubert standard, Florida courts will likely need to address more frequent challenges to expert testimony offered by forensic accountants and valuation analysts. This is not only because Daubert applies to expert opinions relating to new scientific principles (as does Frye), but it also applies to many areas of expert testimony that are not always thought of as being scientific in nature, including testimony involving the calculation of economic damages, business valuation and forensic accounting. Moreover, where Frye (unlike Daubert) allows experts to provide testimony that relies solely on their experience and training, Daubert requires that expert opinions be tested and assessed for reliability, rely on methods that have been subject to peer review and are generally accepted in the scientific community. As a result, testifying experts are now under one evidential standard for admissibility in both Florida courts and in Federal courts in the US (Daubert), which the Supreme Court ruled “will promote fairness and predictability in the legal system as well as help lessen forum shopping.”
What are Frye and Daubert?
The Frye and Daubert tests are competing standards 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.
At the time of the ruling, it was anticipated that Delisle was going to have a profound impact on litigation in Florida, ensuring that the Frye standard would remain in Florida courts, and, in turn, would have made 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, barriers to the introduction of expert opinions were expected to diminish.
The advisors and accountants with Berkowitz Pollack Brant’s Forensic Advisory Services practice have extensive experience working with law firms, attorneys and their clients to conduct economic damages analysis, business valuations and accounting investigations and provide expert testimony in commercial disputes and matters involving corporate fraud. Our team includes CPAs, certified fraud examiners, certified financial forensic specialists, finance and valuation professionals, certified anti-money laundering specialists, certified insolvency and restructuring advisors and computer forensic professionals. For more information, call the CPA firm’s Miami office at (305) 379-7000 or send an email to email@example.com.
Click here for a chart summarizing the key differences between Daubert and Frye.
About the Author: Richard S. Fechter, JD, CFE, CAMS, is an associate director with Berkowitz Pollack Brant’s Forensic and Advisory Services practice, where he conducts forensic accounting investigations and provides expert analysis on the economic, finance, and accounting issues pertaining to economic damages and other business matters in complex commercial disputes.
 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).