Today, Governor Rick Scott of Florida reportedly signed a bill changing the state standard for accepting testimony from expert witnesses. This law is huge as it switches the state's Frye standard to the federal Daubert rule. Florida was only one of 10 states still using the Frye test, a standard established in 1923 that allowed expert testimony as long as it came from qualified experts who adhered to generally accepted scientific principles in their field.
The Daubert standard, named for the 1993 U.S. Supreme Court decision Daubert v. Merrell Down Pharmaceuticals, focuses more on the scientific methodology and its relevance to the facts of the case. Experts under Daubert must have the training to give an opinion on a theory or technique that has been scientifically tested and published in peer-reviewed journals.
The bill, labeled HB 7015, was supported by the business community primarily to do away with what it derided as "junk science" testimony in personal injury and malpractice litigation. However, it was opposed by civil plaintiffs attorneys and criminal prosecutors who maintained the change would bog down cases with needless hearings. The bill requires the more stringent federal standard for expert testimony even though critics claim it will drastically increase the cost of litigation and put new burdens on an already strained state judicial system.
Legal analysts with trial court experience in Daubert hearings say that judges have a tendency to use Daubert to pre-try a case and grant summary judgment in a manner that discourages appeals. This is due in part to a tendency of courts to selectively cite materials submitted in a misleading manner. Commentators representing civil plaintiffs expect that with this change, defendants are going to regularly file motions challenging the validity of expert opinions. I have to agree with this assessment, given my own use of Daubert in federal court.
Today, the Daily Business Review reported a 2011 PricewaterhouseCoopers' study on the effects of the Daubert standard. It found a 250 percent increase in Daubertchallenges to all types of experts from 2000 to 2010. In 2010, there was a 49 percent success rate in witness testimony being stricken in whole or in part. This could be hugely detrimental since in many cases, expert witnesses do not live in the jurisdiction where the case will be tried. This entails the expert witness travelling, giving testimony and answering the judge's questions in a Daubert hearing. This will certainly increase litigation costs for plaintiffs.
Florida's acceptance of Daubert increases the standard being the law to 41 states.
If you are interested in learning more about Daubert or would like to reach me, you may contact me at mov@chaloslaw.com.