Florida Still Undecided on Daubert
The Florida Bar Board of Governors has decided not to decide on adopting the Daubert standard until its December 4th meeting. While the Bar's Code and Rules of Evidence Committee members voted 16-14 to keep the current Frye standard rather than adopt the Daubert standard that the Florida Legislature added to its rules of evidence in 2013, the Board of Governors said it wanted to have more time to review the committee's findings.
The Florida Legislature adopted the Daubert standard primarily due to the urging of business owners (primarily, lobbying by the insurance and pharmaceutical industries). Plaintiff's lawyers in civil cases generally favor the current standard, arguing that Daubert would add undue costs by expanding areas subject to challenge. On the criminal side, the Florida Association of Criminal Defense Lawyers supports Daubert.
The Supreme Court has remained undecided. Under the Florida Constitution, the Court can reject legislative rules about procedure. After the Legislature adopted Daubert, the Supreme Court asked the Bar for its opinion. The Bar referred that to its Code and Rules of Evidence Committee.
The committee's majority opinion noted that the Legislature gave no reason why the Court should depart from Frye nor why it should change standards wholly within its own domain. It argued that Daubert would take away the jury's role in evaluating the credibility of experts and put an additional burden on the courts as gatekeepers.
The committee's minority opinion found that under Frye valid scientific evidence can be excluded because it is too new or novel, whereas "… an expert who testifies on the basis of experience alone is admitted without the slightest scrutiny."
The result of the Legislature adopting Daubert but not the Supreme Court has left a mixed bag of courts using and not using Daubert. After the Florida Bar issues its opinion, the Court will most likely put the issue on its docket and hold hearings.
The only certainty is that no decision is imminent.