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Joseph J. Reiter, Lytal, Reiter, Smith, Ivey & Fronrath

From Frye to Daubert: A Shift in Scrutiny of Expert Opinion

By: Margaret M. Bichler, Esq.

With the enactment of HB7015, the Florida legislature amended section 90.702, Florida Statutes, to mirror Rule 702 of the Federal Rules of Evidence and, in so doing, adopted the standards for expert testimony as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. As of July 1, 2013, the Frye standard will no longer apply, and the Daubert standard will be used to determine the admissibility of expert testimony.

Section 90.702, as amended, will provide as follows:

Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

§ 90.702, Fla. Stat.

In order to properly utilize the newly amended section 90.702, Florida practitioners should refresh themselves on federal evidentiary standards pertaining to expert opinion testimony. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court held that Rule 702 imposes a special obligation upon a trial judge to "ensure that any and all scientific testimony is not only relevant, but reliable." In this regard, the Court explained that the district court is tasked with making the preliminary determinations of relevance and reliability which must be made before expert testimony is admitted. In order to reach the appropriate determination, the Supreme Court invited district courts to consider specific factors, such as testing, peer review, error rates, and acceptability in the relevant scientific community.

In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the United States Supreme Court revisited Daubert and explained that Daubert’s gatekeeping obligation applies to all opinion testimony based on "scientific, technical, or other specialized knowledge." In Kumho, the Supreme Court refined its earlier holding in Daubert:

This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not scientists. … We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.

Kumho, 526 U.S. at 141-42 (1999).

The Eleventh Circuit has established a three-part test to determine whether expert testimony is admissible under Daubert. The party seeking to introduce the expert witness must satisfy the following criteria: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the expert’s methodology is sufficiently reliable; (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). An expert may be qualified by "knowledge, skill, experience, training, or education." § 90.702, Fla. Stat. "To guide district courts' assessments of the reliability of an expert's testimony, the Supreme Court has identified four factors that district courts should consider when assessing the reliability of an expert's testimony: (1) whether the expert's methodology has been tested or is capable of being tested; (2) whether the theory or technique used by the expert has been subjected to peer review and publication; (3) whether there is a known or potential error rate of the methodology; and (4) whether the technique has been generally accepted in the relevant scientific community." United Fire & Cas. Co., 704 F.3d at 1341 (discussing Daubert, 509 U.S. at 593-94). Still, under Kumho, a trial court enjoys flexibility in how it reaches such a determination.

The Daubert standard has generally been regarded as more stringent than the Frye test. However, it is important to note that the Advisory Committee Notes to Rule 702 explain that rejection of expert testimony under Daubert is the exception and not the rule:
A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule. Daubert did not work a "seachange over federal evidence law," and "the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system." As the Court in Daubert stated: "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."

Fed. R. Evid. 702 (citations omitted). Note that the above comment summarizes a trend in case law since Daubert. As state court judges adjust to the new, seemingly more stringent Daubert standard, the above comment and its synopsis should serve as a helpful reminder that exclusion of expert opinion testimony remains the exception and not the rule.



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