HCBA Lawyer Magazine Vol. 29, No. 3 | Page 68

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 | HCBA LAWYER