Florida Bar Votes No on Daubert

Florida courts are unlikely to adopt the Daubert standard any time soon after the state Bar's Board of Governors voted against recommending the state courts adopt the standard that the Florida Legislature passed into law two years ago.

The Board voted 33-9 on December 4th to recommend to the state Supreme Court that it "not adopt the Daubert standard," a Bar spokeswoman said. After the Legislature adopted Daubert, the Supreme Court asked the Bar for its opinion. The Bar referred that request to its Code and Rules of Evidence Committee, which voted 16-14 in October to keep the current Frye standard for Florida expert witnesses.

It is still uncertain whether the Florida Supreme Court has the authority to reject the Legislature's adoption of the Daubert standard. According to the Bar's Committee on Rules of Evidence, the state constitution "grants the Legislature authority over substance and the Florida Supreme Court authority over procedure, which the court often promulgates as 'rules.'" The Court is of the opinion that a change to the Daubert standard would be procedural and not substantive. Many in Legislature have disagreed.

The decision by the Bar sets the stage for the Supreme Court to hold hearings and then make its own decision, but when the Court finally decides (likely following the Bar's recommendation and keeping the Frye standard), the debate may not be over. Conservative lawmakers who control the Legislature and Governor Rick Scott have been adamant that the state adopt the Daubert standard.

With the Legislature adopting Daubert but not the Supreme Court, the decision of which standard to use for expert witness testimony has been up to the courts, some using Frye, some using Daubert.  

Given the politics of the situation, with a Republican-controlled legislature and Republican Governor supporting the Daubert standard which the insurance and pharmaceutical industries have lobbied for, and the Bar's strong vote against Daubert, this debate may go on several more years.