PBCBA BAR BULLETINS pbcba_bulletin_Sept. 2019 | Page 7

APPELLATE PRACTICE CORNER
Now You See It... Now You Don't:
The Uncertainty of the Expert Reliability Standard
SORRAYA SOLAGES-JONES
Just when it seemed like Frye v. U.S., 293 F.
1013 (D.C. Cir. 1923), was the secure expert
standard in Florida, it suddenly wasn’t. As
the newly appointed Justices settled in, In
re Amendments to the Florida Evidence
Code , 44 Fla. L. Weekly S170, 2019 Fla. LEXIS
818, 2019 WL 2219714 (Fla. May 23, 2019),
dropped with a sonic boom. In a 5-2 split, the
Florida Supreme Court resurrected Daubert
v. Merrell Dow Pharmaceuticals, Inc. , 509
U.S. 579 (1993), as the expert standard of
choice in Florida. The Court chose not to
address the “correctness” of DeLisle v. Crane
Co. , 258 So. 2d 1219 (Fla. 2018), but latched on
to confirm the procedural nature of Section
90.702 of the Florida Statutes. In re Amends.
to the Fla. Evid. Code , 2019 Fla. LEXIS, at *1-
*2.
Outside the majority opinion,
Justice
Lawson concurred specially to counter
Justice Luck’s lengthy dissent. Justice
Lawson penned that the Court was following
the proper procedure for adopting rules as
well as its internal operating procedures. Id.
at *8-*13. Justice Labarga dissented, opining
that DeLisle was correctly decided and that
Frye offers a superior standard of reliability
that also safeguards constitutional rights.
In re Amends. to the Fla. Evid. Code , 2019
Fla. LEXIS, at *14-*20. Justice Labarga
further discussed the significant concerns
raised by the Florida Bar’s Code and Rules of
Evidence Committee. Id. at *20.
Justice Luck took a different approach in
his dissent. First, he sought the Court’s
adherence to its own rules regarding the
adoption of procedural rules rather than
circumventing that procedure and falling
back on Article V, Section 2(a) of the Florida
Constitution, despite the rules being created
to implement the authority afforded by the
state constitution. Id. at *21-*44. Justice
Luck stated that the Court “can’t ignore
the process altogether and do whatever we
want, whenever we want to do it . . . .” Id.
at *33. He opined that the Court should not
rely upon “years-old stale information from
rules committees” when deciding whether
to adopt rule amendments. Id. at *43.
Second, Justice Luck opined that the
Daubert amendment was not procedural
and therefore, could not be adopted by the
Court as a procedural rule. In re Amends.
to the Fla. Evid. Code , 2019 Fla. LEXIS, at
*44 *51. Recognizing that section 90.702
establishes rights and sets forth duties,
Justice Luck espoused that the statute was
substantive and the sole responsibility of
the Florida Legislature. Id. at *45-*46. He
concluded by anticipating a future case or
controversy to revisit the holding of DeLisle .
What Does This Mean?
For starters, practitioners can pull out their
legal authorities on Daubert that had yet to
accumulate dust. As codified under section
90.702, an expert (qualified by knowledge,
skill, expertise, training, or education)
can offer an opinion if: “(1) The testimony
is based upon sufficient facts or data; (2)
The testimony is the product of reliable
principles and methods; and (3) The witness
has applied the principles and methods
reliably to the facts of the case.”
Under Section 90.704 of the Florida
Statutes, the expert need not disclose to
the jury otherwise inadmissible facts or
data that formed the bases of his or her
opinions unless the court determines the
probative value substantially outweighs the
prejudicial effect.
Presumably, practitioners will need to
rely on federal court persuasive authority
when making Daubert arguments given the
PBCBA BAR BULLETIN
7
present dearth of precedential state court
authority.
What’s on the Horizon?
It appears that the Florida Supreme Court
left an opening to address the procedural
nature of Section 90.704 of the Florida
Statutes as amended by Chapter 2013-107,
Section 2 of the Laws of Florida (2012). Also
on the table, to be addressed in a future case
or controversy, are potential “constitutional
or other substantive concerns” raised by the
Daubert amendments. It is anticipated that
part and parcel will likely be another revisit
to DeLisle .
In sum, for those who blinked, Florida is
now a Daubert state . . . again.
Sorraya M. Solages-Jones is the Appellate
and Trial Support Attorney for Lytal, Reiter,
Smith, Ivey & Fronrath, LLP in West Palm
Beach and can be reached at ssolagesjones@
foryourrights.com
Luncheon Honoring
Justice Barbara Pariente

September 19th, 2019
11:45 AM - 1:00 PM
Marriott Hotel
1001 Okeechobee Blvd.
West Palm Beach