FLorIDa suprEmE CourT Favors FrYE
Trial & litigation Section
Chair: Katherine Yanes – Kynes, Markman & Felman, P.A.
I
n its recent opinion clarifying
Florida’s standard regarding
the admissibility of expert
evidence, the Florida Supreme
Court essentially told the Florida
Legislature to stand down.
The 4-3 decision in DeLisle v.
Crane Co., No. SC16-2182, 2018
WL 5075302 (Fla. Oct. 15, 2018)
(which remained subject to revision
or withdrawal pending release for
permanent publication as of this
article’s submission), reviewed the
Fourth District Court of Appeal’s
reversal and remand in a personal
injury action based on asbestos
exposure. The Fourth DCA found
that the trial court “failed to properly
exercise its gatekeeping function”
as to several testifying experts. 1
Before quashing the Fourth DCA’s
decision, the Court provided a
lengthy discourse on the interaction
between it and the Legislature in
implementing evidentiary rules,
maintaining that, where rules
constitute substantive law, they are
the responsibility of the Legislature,
but clarifying that procedural rules
remain within the judiciary
branch’s domain. 2
The Court then reaffirmed
longstanding precedent adopting the
standard articulated in Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923),
which requires general acceptance
in the scientific community for
the admission of expert scientific
evidence. DeLisle cited concerns
66
about reliability
access to the courts. 8
in rejecting the
Justice Pariente’s
Supreme Court’s
concurring opinion
expanded on this
Daubert standard.
concern, with Justice
The Legislature
Labarga concurring. 9
attempted to
embrace Daubert
Justice Labarga
wrote a separate
in section 90.702,
concurrence
Florida Statutes
addressing the
(2013). 3 Under
propriety of
Daubert, relevant
For now, Frye
jurisdiction, with
scientific evidence
remains the law of
which Justice Pariente
is admissible if
also concurred, 10
it is derived from
the land when it
scientific method -
while Chief Justice
comes to evaluating
ology, even if not
Canady dissented
new
or
novel
generally accepted;
on jurisdictional
judges are assigned
grounds with Justices
scientific evidence.
gatekeeping roles
Polston and Lawson
to ensure the
concurring. 11
reliability and
1 Crane Co. v. DeLisle, 206 So. 3d 94,
relevance of expert testimony. 4
100–103 (Fla. 4th DCA 2016) (citing
Returning to the separation
of powers doctrine, the Court
Daubert v. Merrell Dow Pharmaceuticals,
determined that the revision to
Inc., 509 U.S. 579 (1993)).
2 DeLisle, 2018 WL 5075302, at *3
§ 90.702 does not create, define, or
regulate a right, thereby rendering it
(citations omitted).
3 Id. at *4–6.
procedural rather than substantive. 5
4 Daubert, 509 U.S. at 587–595.
Since the statute conflicts with
5 The Court declined to adopt
the Court’s previous decisions
pronouncing the Frye test a
chapter 2013-107, section 1, Laws of
procedural rule, the Court deemed
Florida, to the extent it was procedural,
6
it unconstitutional. And so for now,
in 2017. See DeLisle, 2018 WL
5075302, at *2.
Frye remains the law of the land in
6 DeLisle, 2018 WL 5075302, at *6 –7.
determining the admissibility of
7 Id. at *8.
new or novel scientific evidence.
8 Id. at *8, n. 3.
The DeLisle opinion issued a
9 Id. at *9 –13 (Pariente, J.,
reminder that Frye applies only to
testimony based on “new or novel
concurring).
10 Id. at *13–14 (Labarga, J.,
scientific techniques,” and trial
judges retain broad discretion to
concurring).
11 Id. at
determine the subjects on which
experts may testify. In the underlying
*14 –15 (Canady,
trial for example, the Court stated
J., dissenting).
that the disputed medical causation
testimony was not new or novel and
Author:
thus not subject to Frye analysis. 7
Bridget
McNamee -
Of note, the Court cited concerns
Johnson
about the length and expense of
Jackson, LLC
Daubert proceedings inhibiting
JAN - FEB 2019
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HCBA LAWYER