278 So.3d 551
Fla.2019Background
- The Florida Legislature enacted chapter 2013-107 (the "Daubert amendments") changing Fla. Stat. §§ 90.702 and 90.704 to replace the Frye general-acceptance test with the Daubert/Fed. R. Evid. 702 reliability-based framework for expert admissibility.
- The Florida Supreme Court previously declined in In re Amendments to Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017), to adopt the Daubert amendments as procedural rules, citing "grave constitutional concerns;" the Court reaffirmed Frye in DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018).
- After additional consideration of prior briefing, committee reports, public comments, and oral argument, the Court revisited the issue without repeating the full rulemaking cycle.
- The majority concluded the constitutional objections to Daubert were unfounded as a general matter (relying on federal and state authority applying Daubert) and found benefits in consistency with federal courts and predictability.
- The Court adopted the legislative amendments to §§ 90.702 and 90.704 as procedural rules to the extent they are procedural, effective immediately; several justices filed separate concurring and dissenting opinions contesting procedure and substance.
Issues
| Issue | Proponent's Argument | Opponent's Argument | Held |
|---|---|---|---|
| Whether the Court may adopt the Daubert statutory amendments as court rules | Legislature/Daubert proponents: Court has exclusive rulemaking power under Art. V § 2(a) and may adopt legislative evidence amendments as procedural rules | Opponents (dissent): Must follow Fla. R. Jud. Admin. 2.140; Court may not bypass the rule-adoption process | Court: Adopted the amendments as procedural rules (to the extent procedural), exercising its rulemaking authority and relying on prior record and comments |
| Whether constitutional objections (jury-trial/access-to-courts) bar adoption of Daubert | Proponents: Federal courts and many states use Daubert without constitutional infirmity; Daubert is gatekeeping, not usurpation of jury role | Opponents: Daubert risks judges excluding legitimate competing expert opinions and thus usurping jury factfinding and burdening access/costs | Court: Rejected the notion that Daubert presents "grave constitutional concerns" generally; left any specific constitutional challenges to live cases |
| Whether § 90.702/90.704 are procedural (thus within Court's rulemaking) or substantive (legislative domain) | Proponents: DeLisle held § 90.702 is procedural; Court may therefore adopt the amendments as rules | Opponents: The statutory changes define parties' substantive rights to introduce expert evidence and thus are legislative/substantive | Court: Adopted the amendments as procedural rules (receding from prior refusal to adopt), but declined to resolve all substantive constitutional questions now |
| Whether the Court violated its own rulemaking procedures by not using rule 2.140 cycle now | Proponents: Extensive prior briefing, committee reports, and public comment justified reconsideration without repeating process; internal operating procedures allow sua sponte rulemaking | Opponents: Must follow rule 2.140; exceptions do not apply; adopting rules without current committee/report/public comment is improper | Court: Proceeded to adopt based on prior administrative record; concurrences and dissents dispute whether rule 2.140 was properly followed |
Key Cases Cited
- Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (origin of the Frye general-acceptance test for novel scientific evidence)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (announced federal reliability/gatekeeping framework for scientific expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony, not just "scientific")
- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) (appellate review of Daubert rulings is deferential; trial judges have gatekeeping discretion)
- In re Amendments to Fla. Evidence Code, 210 So. 3d 1231 (Fla. 2017) (Florida Supreme Court previously declined to adopt Daubert amendments as procedural due to constitutional concerns)
- DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018) (held § 90.702 is procedural and addressed separation-of-powers/rulemaking issues)
- Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007) (discussed limits on Frye and treatment of pure opinion testimony)
- Junk v. Terminix Int’l Co., 628 F.3d 439 (8th Cir. 2010) (rejected constitutional challenge to Daubert as infringing jury trial right)