Florida Supreme Court Rejects Daubert, Medical Malpractice Expert Witness Rules to the Extent They are Procedural

Via Newsome | Melton

Friday, February 17, 2017 – 01:03 Yesterday, the Florida Supreme Court rejected both the Daubert standard and the medical malpractice same specialty requirement “to the extent” each one “is procedural.”  This ruling is a major victory for consumers.

Back in 2013, the Legislature passed, and Governor Rick Scott promptly signed in to law, HB 7015, which sought to eradicate several decades’ worth of Florida judicial precedent in one swift blow.  Until then, Florida courts had consistently applied the Frye standard to determine whether expert testimony should be admitted.  The Frye standard permits expert opinion as long as the testimony is generally accepted in its particular field.  If so, the jury is tasked with weighing that testimony, the same way juries weigh any other kind of evidence.  Daubert, on the other hand, requires the trial judge to act as a “gatekeeper” by ruling on the “reliability” of expert testimony before it can be presented to the jury.  This process is often expensive and cumbersome, frequently necessitating a “trial within a trial” before a jury is ever summoned.

Additionally, back in 2012, the Legislature amended Section 766.102 to require “standard of care” witnesses in medical malpractice cases to be from the exact same specialty as the defendant.  Before then, Florida courts had long required that standard of care experts be from the “same or similar” specialty as the defendant.

The Daubert and same specialty amendments proved to be immediately controversial.  Consumer advocates argued that, among other ramifications, the changes would shut the courthouse doors to many injured Floridians.  Additionally, state prosecutors argued that they lacked the resources needed to go through extensive Daubert procedures in criminal cases.

Those opposed to the changes argued that they violated the state Constitution in a number of ways, including by encroaching upon the judicial branch’s powers.  Florida’s Constitution provides the judicial branch with sole authority to prescribe the procedural rules to be followed in Court.  The Legislature, in turn, has authority to prescribe substantive law.  Those opposed to Daubert and the medical malpractice same specialty requirements argued that the admission of testimony is inherently procedural in nature.

Last year, the Florida Bar’s Code and Rules of Evidence Committee recommended that the Florida Supreme Court reject the Daubert and same specialty standards to the extent that each one is procedural in nature.  The Florida Supreme Court subsequently heard oral argument on this issue, and yesterday, agreed with the Bar on this point.  In doing so, the Court observed that, it has been “Court’s policy to adopt, to the extent they are procedural, the provisions of the Florida Evidence Code as they are enacted and amended by the Legislature.”  In Re: Amendments to the Florida Evidence Code, No. SC16-181, 2 (Feb. 16, 2017).  However, the Court went on to clarify that it “has declined to adopt legislative changes to the Evidence Code because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”  Id.  The Court went on to cite significant constitutional concerns with the Daubert and same specialty amendments, including the possibility that they could restrict Floridians’ right of access to the civil justice system.  Id.

Stay tuned.  We will continue to monitor and report on key updates on the expert witness front as they occur.