May 24, 2019

Florida Supreme Court Adopts Daubert Standard for Admission of Expert Testimony

Holland & Knight Healthcare Blog
Tiffany A. Roddenberry

In In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019), the Florida Supreme Court used its exclusive rulemaking authority to adopt the Daubert standard governing the admission of expert testimony, replacing the outdated and more lenient Frye standard.

As background, the Florida Legislature amended the Florida Evidence Code in 2013 to require the use of the Daubert standard, which applies in most jurisdictions, including the federal courts, for judging the reliability of expert witness testimony. Prior majorities of the Florida Supreme Court in 2017 and 2018 declined to adopt the Daubert statutory amendments as court rules and held that the amendments unconstitutionally conflicted with a court rule, the Frye standard.

On May 23, 2019, a majority of the Court reversed course on its own initiative, adopting the Daubert standard as court rule and receding from the prior decisions to retain the Frye standard. The Court observed, however, that it did not decide whether Daubert is constitutional against substantive as-applied challenges, such as a claim that it violates access to courts, leaving such determinations to a proper case or controversy. In dicta, the Court did say that "the 'grave constitutional concerns' raised by those who oppose the [Daubert standard] amendments to the code appear unfounded." So looking toward the future, it does not appear that constitutional challenges to Daubert will be well received by this Court.

In a concurrence, Justice Alan Lawson defended the Court's right to amend court rules without the use of the traditional rule amendment process, based in part on the Court's constitutional rulemaking authority, and noted that the Court already had the benefits of the longer rule amendment process through The Florida Bar's recommendations, oral argument and extensive public comments on the issue in the prior cases.


Justice Robert Luck reluctantly dissented, expressing the belief that the Court lacked the authority to amend the rules without following the traditional rule amendment process, which would have required referral to Florida Bar committees and further opportunity for public comment and evaluation. Justice Luck also emphasized his strong disagreement with the DeLisle decision, in which the prior Court had held that the Daubert amendments were procedural and unconstitutionally conflicted with a court rule of procedure (Frye). According to Justice Luck, the Daubert amendments are substantive and not procedural, and consequently, the Court could not adopt them as procedural rules.

Justice Jorge Labarga also dissented, viewing the Frye standard as the superior standard for determining the reliability of expert testimony.

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