On Thursday, April 4th, the attorneys of Anton Castro Law attended a presentation on the newly implemented Daubert Standard. The presentation highlighted the changes to the Florida Rules of Evidence and what challenges attorneys may face in practice with this new standard. They learned about the progression from the Frye Standard, implemented in the early 1920’s, to the new Daubert Standard, just adopted by Florida last year. The standard is all about expert testimony and what the courts will allow experts to testify to in courts, which is relevant to any and all forms of the legal profession. This new standard will increase reliability and relevant testimony in the courtrooms and provide for a more efficient trial for the attorneys at Anton Castro Law as well as attorneys in the legal profession as a whole.
A detailed explanation of the new standard and what it means for clients and attorneys may be seen below:
The Daubert Standard
Effective July 1, 2013, Florida Governor Rick Scott signed Bill HB 7015 into law which changed Florida’s expert testimony standard in the state of Florida. HB 7015 amended Florida Statutes §90.702 and §90.704 to conform to the federal evidentiary standards generated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
What Has Changed?
Prior to the signing of HB 7015, Florida used the Frye standard, which permitted both parties to present expert witness testimony on the basis of what was “generally accepted” in their particular field of expertise. The “general acceptance” test, also referred to as the “Frye standard”, favored broad admissibility of expert testimony, with both sides presenting expert testimony on what was “generally accepted” in their field of practice. This created confusion for the jury as well as allowed for admission of theories that were not subject to peer review or other objective tests, but were still considered to be “generally accepted” theories within the community. The unsubstantiated testimony would then be revealed to the jury, who then had to decide which expert to believe and who to rule in favor of.
The Daubert standard includes the rule of “general acceptance”, but also creates a gatekeeper role for the judge in determining whether the expert testimony is corroborated and whether or not the testimony is reliable. The new expert testimony statue requires not only that the witness be qualified by their “knowledge, skill, expertise, training, or education”, but also the testimony itself must be:
(1) Based upon sufficient facts or data
(2) The product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case
This new standard simply means that in order for an expert witness to state their opinion on a matter based on expertise, they must be stating opinions that are proven to be relied upon and the knowledge they are basing those opinions on must be tested diligently and widely accepted within the expert community. This standard allows the court to research further into the expert’s credentials and methodology and lets the court determine whether the “generally accepted” methodology is proven to be credible.
What Does This Mean For Post-Daubert Cases?
By requiring that experts provide relevant opinions grounded in actual scientific data, which is shown to be peer-reviewed, tested, generally accepted on a high degree/level, and lacks any substantial error rates, the court has discretion as to whether or not to allow the witness that surpasses what the original statute allowed for. The court, in becoming the gatekeeper, is in place to be sure that the testimony stated by expert witnesses is in fact true and reviewed within their respective communities. This heightened standard requires that expert witnesses actually provide testimony that “is not only relevant, but reliable.” The courts are to determine the reliability of the testimony by weighing certain factors including:
- whether the theory or technique can be and has been tested;
- whether it has been subjected to peer review and publication;
- whether, in respect to a particular technique, there is a high “known or potential rate of error” and whether there are “standards controlling the technique’s operation”; and
- whether the theory or technique enjoys general acceptance within the relevant scientific community.
When judges are given an active gatekeeping role regarding expert testimony, they are not only evaluating the expert witnesses’ credentials, but also the credentials of the testimony itself. This means different outcomes for post-Daubert cases because the judges can now determine not only if the witness is a qualified expert, but whether or not his or her testimony is based on concrete, tested, and peer-reviewed methodology. Expert witnesses not only have to prove their professional and expert credentials, but also have to prove to the judge why they are testifying to certain opinions and corroborate their opinions with scientific data.
More information on the Daubert standards as well as the Frye standard and the Florida Statues can be found at these links: