In Re AMENDMENTS TO the FLORIDA EVIDENCE CODE, 144 So. 3d 536

The Florida Bar Code and Rules of Evidence Committee submitted a report recommending adoption of three legislative amendments to the Florida Evidence Code and a medical-malpractice expert rule: (1) a fiduciary lawyer‑client privilege (ch. 2011‑183, §1; §90.5021); (2) a hearsay exception for statements against a party who wrongfully caused a declarant’s unavailability (ch. 2012‑152, §1; §90.804(2)(f)); and (3) a restriction requiring medical‑expert witnesses to be licensed under specific chapters or hold a certificate (ch. 2011‑233, §10; §766.102(12)).
The Court reviewed the Committee’s recommendations to adopt statutory amendments "to the extent they are procedural." The Board of Governors and numerous commenters opposed adopting the expert‑witness provision; the Committee was narrowly split on that recommendation.
The Court granted rehearing, withdrew its prior opinion, and reconsidered whether to incorporate each statutory change into the Florida Evidence Code as procedural rules.
The Court adopted only the hearsay exception (§90.804(2)(f)) as a procedural rule, made effective retroactive to the statute’s effective date.
The Court declined to adopt the fiduciary lawyer‑client privilege (§90.5021) and the §766.102(12) expert‑witness qualification provision, citing concerns (including constitutional and practical) and opposition comments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to adopt fiduciary lawyer‑client privilege (§90.5021) as a procedural rule	Committee: adopt to resolve uncertainty about privilege for fiduciaries hiring counsel	Court/others: not necessary procedurally; questions about need and scope	Not adopted (declined)
Whether to adopt hearsay exception for statements against a party who wrongfully caused declarant’s unavailability (§90.804(2)(f))	Committee: codifies common‑law forfeiture by wrongdoing; procedural and acceptable	Opponents: raise Sixth Amendment / Confrontation Clause concerns about application and required predicate	Adopted, but Court left open constitutional application questions; retroactive to statute’s effective date
Whether to adopt medical‑expert qualification requirement (§766.102(12)) as a procedural rule	Committee (narrow): adopt; treat as procedural	Board of Governors and many commenters: unconstitutional, chills expert availability, prejudicial to justice; reject adoption	Not adopted (declined)

Reynolds v. United States, 98 U.S. 145 (historical common‑law support for forfeiture doctrine)
Giles v. California, 554 U.S. 353 (U.S. Supreme Court: limits forfeiture by wrongdoing to conduct intended to prevent testimony; raises Confrontation Clause concerns)
In re Amendments to the Florida Evidence Code, 53 So.3d 1019 (Fla. 2011) (prior consideration of legislative evidence amendments)
In re Amendments to the Florida Evidence Code, 782 So.2d 339 (Fla. 2000) (Court’s practice of adopting statutory evidence amendments "to the extent procedural")
Jacob v. Barton, 877 So.2d 935 (Fla. 2d DCA 2004) (examples of fiduciary privilege disputes cited by Committee)
Tripp v. Salkovitz, 919 So.2d 716 (Fla. 2d DCA 2006) (example cited regarding fiduciary privilege)