Florida supreMe CourT reaFFirMs THaT FrYe is THe sTandard
Trial & litigation Section
Chair: Katherine Yanes – Kynes, Markman & Felman, P.A.
at least for now,
delisle clarifies that
Frye, not daubert,
is the standard
T
he Florida Supreme
Court, in a 4-3 opinion,
held that Frye, not
Daubert, remains the
standard in Florida for determining
the admissibility of expert testimony.
DeLisle v. Crane Co., 258 So. 3d
1219 (Fla. 2018). In doing so, the
Supreme Court held unconstitutional
the Legislature’s 2013 amendment
to section 90.702, Florida Statutes,
incorporating Daubert into the
Florida Rules of Evidence.
The plaintiff in DeLisle alleged
that exposure to asbestos caused
him to develop mesothelioma.
The defendants challenged the
plaintiff ’s experts under section
90.702, Florida Statutes, as
amended in 2013. Following
Daubert hearings, the trial court
admitted the plaintiff ’s expert
testimony, and the jury returned
a verdict for the plaintiff.
Some of the defendants
appealed the trial court’s admission
of expert testimony. The Fourth
District Court of Appeal reviewed
the admission under Daubert,
held that the trial court failed to
properly exercise its gatekeeping
function, and reversed. The
plaintiff sought review by the
Florida Supreme Court on the
ground that the Fourth DCA’s
decision conflicted with Marsh v.
Valyou, 977 So. 2d 543 (Fla. 2007),
which reaffirmed the procedural
rule set forth in Stokes v. State,
62
in Florida for
determining the
admissibility of
expert testimony.
548 So. 2d 188 (Fla. 1989), wherein
the Court formally adopted Frye.
The Supreme Court held that
the 2013 amendment infringed on
the Court’s rulemaking authority.
The Court noted that article II,
section 3 of the Florida Constitution
prohibits one branch of government
from exercising any of the powers
of the other branches, and that
article V, section 2(a) granted the
Supreme Court exclusive authority
to adopt rules for the practice and
procedure of all courts. The Court
ruled that section 90.702, as amended
in 2013, is a procedural statute
that solely regulates the action of
litigants in court proceed ings;
therefore, the amendment interfered
with the Court’s exclusive authority.
The Court further noted that
the Legislature enacted the 2013
amendment without the required
two-thirds vote of the membership
of each House of the Legislature
necessary to repeal a rule of
the Court. It held that while the
Legislature purported to have
pronounced public policy in over -
turning Marsh, the rule reaffirmed
in Marsh was a procedural rule that
the Legislature could not repeal by
the simple majority vote that passed
the amendment.
The Supreme Court reaffirmed
that Frye, not Daubert, is the
appropriate test in Florida courts.
It ultimately held that, under Frye,
the trial court properly admitted
the expert testimony in DeLisle,
and that the Fourth DCA should
not have excluded it. The Court
noted that, as stated in Marsh,
medical causation testimony is
not new or novel and therefore
is not subject to a Frye analysis.
The Court quashed the Fourth
DCA’s decision and remanded
with instructions to remand to
the trial court to reinstate the final
judgment. At
least for now,
DeLisle clarifies
that Frye, not
Daubert, is the
standard in
Florida for
determining the
admissibility
of expert
testimony.
Authors:
Jaret J. Fuente
& Monica L.
Strady -
Carlton Fields
MAR - APR 2019
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HCBA LAWYER