The Florida Legislature’s Need to Control – the Daubert Rule

This is in response to the article in the Daily Business Review, Opponents of New Expert Witness Rule Rely on Outdated Authority [COMMENTARY] by Christopher Johnson, Daily Business Review.

This recent article claims that the opponents of the proposed New Expert Witness Rule rely on outdated authority as their basis for opposing the new rule, which would replace the “Frye standard” (which assesses whether certain expert testimony is admissible) with the federal “Daubert standard.”

Years ago, the Court adopted the Federal rule regarding expert admissibility, Rule, 702.  Years later, the US Supreme Court held that Rule 702 replaced the need for the Frye standard in a case called Daubert—and jurisprudence quickly fashioned the Daubert rule.

Johnson’s article suggests that the Florida Supreme Court did not address whether Rule 702 replaced or contradicted the Frye test and that the purpose of Daubert was to hold it did.  The argument states that “Justice Harry Anstead noted the “open issue” in a 2007 (Marsh v. Vayou) concurrence regarding the issue.”  I think that statement misrepresents how an opinion is released from the Court.   The majority Marsh v. Valyou, 977 So. 2d 543, 554 (Fla. 2007) did not simply “not address” the issue; they addressed it by choosing not to adopt Anstead’s opinion (which claimed that Rule 702 replaced Frye) as the majority opinion.  Clearly the Court is having the discussion the Court should have.

The article notes that after the Florida Supreme Court did not address the issue (or chose not to change the way it dealt with the issue for decades), a majority of the legislature decided to adopt the rule.  This is not the way our Courts and Legislature are meant to work—which is the whole problem the “opponents” of the rule (which is the opinion held by the majority of those who practice in the state) have with the proposed rule.

This is not a matter to be underscored by authority, but by the lack of consistency within the federal precedence that would otherwise elucidate the rule and a total lack of authority behind the proposition that Florida Courts adopt it.   The article admits that the majority of the committee advising the Florida Bar on the rule oppose the adoption of the Daubert test.  This is likely because the commenters actually practice it while the suggestion itself comes from those who do not.   The commentator does not, however, recognize the two main reasons the majority of the legal community oppose the implication of the rule.  Neither basis relies on Daubert authority at all.

First, we oppose the implication of the Daubert rule because Daubert authority has been, even in its most clear and simple elucidations, inconsistently applied.  Daubert determined that “General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence. Daubert v. Merrel Dow Pharm. Inc. 509 U.S. 579 (1993). The point of the Daubert rule was to allow the admission of novel but reliable science for jury review.  Sadly, it became a tool to evaluate the expert rather than the methodology, wherein every federal case now standardly includes days of “Daubert” hearings to review the “reliability” of every expert.  Days of bench bar conferences have been devoted to the fact that this is now as routine in federal practice as pro hac motions, though imminently more time consuming.  This has led to an entire cannon of published science all not so subtly purposed to produce by-lines for experts hoping to proffer a curriculum vita so full of published articles they can “defeat Daubert” because decades of misuse has ironically resulted in jurisprudence eliminating experts based on personal credentials, utterly vitiating the Supreme Court’s purpose to adopt a rule for when novel science was before the Court because the Frye rule had no such calculus. Now, thirty years later, it is finally achieving its original limited purpose in federal courts: to provide a calculus for when to admit novel science that results from reliable methodology. See Schultz v. Akzo Nobel Paints LLC, 2013 U.S. App. (7th Cir. Wis. June 26, 2013), reversing a decision that would have precluded the admission of an oncologist who had determined that a dose calculation based on low-dose chronic exposure to benzene explained an otherwise inexplicable case of cancer.

Second, as members of the bar, it is our obligation to point out that the rule should come from within and not from without.

Here was my comment:

“A legislator should not don a black robe any more than a Judge should be forced to don a white coat.  The Supreme Court of Florida should not adopt chapter 2013-107 to the extent it is procedural and requires the application of the Daubert standard to expert admissibility.  While a majority of the legislature may have disagreed with the learned history and steadfast decisions of the Court to reject the Daubert standard in the past, the fact that its members believe that their disagreement alone should change the way the Courts proceed is testament to the impropriety of the way the Daubert standard has been used in trial courts already: it is motivated either by ignorance or overreach, both desiring nothing but to curtail the judicial process.

The admissibility of expert opinion evidence is a matter of procedure, subject only to the Court’s authority.  The Court adopted the Frye standard after the enactment of the Evidence code, rejecting the argument that the code contradicted the Frye standard.  The Court then repeatedly declined requests to replace the Frye standard with the Daubert standard, rejecting the argument that Daubert was a better standard to effectuate the purposes of the code.  The Daubert standard may work in other Courts, but that is a decision to be made by the Courts and not by the politicians who judge them.”

The article implies that the fear of over litigation attributed to Daubert misuse is unrealistic, and that the issue will be raised only “on pure opinion experts in complex cases who offer no methodologies for their sweeping opinions, but only to the extent that such experts would now need to explain their rationale.”  I am surprised anyone would suggest that Daubert motions are only raised in the face of novel, sweeping opinions when in a federal complex case, courts are putting more days aside for Daubert hearing than for trial.  Typically, every expert faces at least one Daubert motion if not two in a complex federal case.  In Kearney v. Auto-Owners Ins. Co., No. 8:06CV595T24TGW, 2007 WL 3244670, at *1 (M.D. Fla. Nov. 1, 2007), the Court had to consider two motions in limine directed to the testimony of Laura Liptai, PhD, who intended to offer opinions to support Defendant’s seatbelt defense.  In the end, the Court deferred on the motions until the witness would be called to testify—testament to what has become a necessary waste of time to preserve for the record an overly articulated, but well-rehearsed objection that could just as well have waited for trial.

If it were otherwise, there would not be such an enormous and thoroughly inconsistent body of Daubert precedent ranging from experts pronouncing the value life of care plans to experts estimating the value of a well pronounced name.  See Sam’s Wines & Liquors, Inc. v. Wal-Mart Stores, Inc.   1994 WL 529331/N.D. Ill, ED. September 27, 1994 determining that “the qualifications” of a similarly situated store owner made him “an appropriate expert witness to testify about the consuming public’s perceptions of Sam’s Wines” and citing Daubert as authority.   Neither that sort of expert nor that holding are actually an appropriate “Daubert review” but that did not keep the opposing party from moving to exclude him anyway.

Daubert, as everyone points out when trying to get the Court to adopt the rule, was purposed to get the Court out of the role of judging an experts Curriculum Vitae and instead, allowing them some guidelines to admit novel science.  The problem is, it just is not used that way.

So, while this rule and its good intentions are still being honed within the federal Appellate courts, we commentators oppose the manner in which it has been proposed for our trial courts.  This is a rule offered by the legislators, and not the jurists.    What, besides common sense, the Florida Constitution, and a general understanding of the Daubert cannon was needed to underscore the majority’s comments?