Florida’s Strengthened ‘Expert Testimony’ Standard Working, But Still under Threat by State’s High Court

Joining several state trial and appellate courts in doing so, a unanimous Florida appeals court yesterday embraced a more exacting standard for expert testimony which, believe it or not, may yet be struck down by the Sunshine State’s notoriously plaintiff-friendly Supreme Court.

Here’s some background: Three years ago, after long debate, the Florida Legislature shifted the state’s standard for admission of expert testimony from an anything-goes approach to the gatekeeping (Daubert) requirements applied in federal courts and about two thirds of state courts. Evidence continues to emerge showing that the new standard is effectively ensuring that cases in Florida courts are decided on the basis of sound science, not on the speculative testimony of hired-gun witnesses.  Courts are fulfilling their new role as gatekeepers over the reliability of proposed expert testimony without issue.

The so-called Daubert standard, named for a precedent-setting U.S. Supreme Court decision in the early-1990s, ensures that all aspects of an expert’s opinion are tested for reliability before it is admitted in court. In contrast, the Frye/Marsh standard applied previously in Florida courts does not analyze the reliability of an expert’s proposed testimony. It only considers the general acceptance of the underlying principle when a purported expert asserts a novel scientific theory, and it allows someone who is labeled as an expert to express his or her pure opinion.

Florida’s Fourth District Court of Appeal is the latest to show that whether Florida’s old standard, which allowed a purported expert’s “pure opinion” to come into evidence without judicial scrutiny, or the new gatekeeping standard applies, makes a difference. In a unanimous June 1, 2016 ruling authored by Judge Carole Y. Taylor, the appellate court found a trial court properly excluded the testimony that would have suggested that Zicam, a nasal spray used for congestion and sinus relief, can cause those who take it to experience a loss of smell.  The appellate court found that while the testimony would have been admissible as “pure opinion” it did not satisfy the Daubert standard, which applies to pending cases. As a result, the court affirmed dismissal of the lawsuit against the manufacturer, Matrixx Initiatives Inc., and seller, Publix Super Markets.

Although Florida courts have routinely applied the Daubert standard since the legislature adopted it in 2013, its future remains uncertain. As detailed in the 2015-16 Judicial Hellholes report, after a lengthy and contentious process the plaintiffs’ bar won the day with the Florida Bar, convincing it to recommend to the Florida Supreme Court that the important reform legislation be rejected.

The Florida Supreme Court will hold oral argument on whether it should adopt or reject Daubert as a rule of court procedure on September 1. Although the Court has refused to adopt the Daubert standard applied by most courts in the past, and a majority of its members have shown hostility to legal reform, historically, the court has shown deference to legislative adoption of rules of evidence.