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    When deciding admissibility of expert testimony, Florida courts historically followed the standard set out in Frye v. United States, 293 F. 2d 1013 (D.C. Cir. 1923). The Frye standard requires the proponent of the evidence to prove both that the underlying scientific principle of the testimony and the testing procedures used to apply that principle to the facts of the case are generally accepted in the scientific community. In 2013, however, the Florida Legislature amended Sections 90.702 and 90.704, Florida Statutes, in an attempt to adopt the standards for admissibility of expert testimony set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), which is used in federal courts and most other states. The Daubert standard requires that expert testimony be based upon sufficient facts or data, be the product of reliable principles and methods, and reliably apply the principles and methods to the facts. 

    In an early 2017 rules case, the Florida Supreme Court declined to adopt the Daubert standard incorporated into the Florida Statutes to the extent it was procedural citing “grave constitutional concerns,” but would not explicitly reject the amendment without a proper case and controversy before it. See In re Amendments To Florida Evidence Code, 210 So. 3d 1231, 1237 (Fla. 2017). For a year and a half, Florida courts proceeded without input from the Florida Supreme Court and followed the Daubert standard because it was, ostensibly, the law in Florida. 

    On October 15, 2018, however, the Florida Supreme Court issued its decision in Delisle v. Crane Co., Case No. SC16-2182, 43 Fla. L. Weekly S459a. In its opinion, the Florida Supreme Court determined that the Florida Legislature unconstitutionally infringed on the Court’s rulemaking authority when it revised Section 90.702, Florida Statutes, thereby rejecting the adoption of the Daubert standard. 

    The important takeaway from this decision is that the Frye standard is now officially the only appropriate test in Florida state courts for determining the admissibility of expert testimony. As opposed to Daubert, which looks to the trial judge in a gatekeeping role to determine reliability, the Frye standard is somewhat less flexible and looks to the scientific community to determine what is generally accepted and therefore admissible.

    Lucien Johnson 
    GrayRobinson, P.A.
    301 East Pine Street, Suite 1400
    Orlando, Florida 32801
    P: 407-843-8880
    F: 407-244-5690


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