On June 4, 2013, Florida’s Governor signed into law a bill amending Florida’s evidence code,  replacing the Frye standard, which had previously governed the admissibility of expert testimony in Florida, with the Daubert standard.  Florida’s new rules closely track Federal Rules of Evidence 702 and 703.  One major implication of the new evidence rules is that they will require judges in the state to perform a much more prominent gatekeeping function than they did under the previously used Frye standard.  However, how the new rules will be interpreted and applied remains to be seen.

Under Florida’s new standard, as with Federal Rule of Evidence 702, if scientific, technical, or other specialized knowledge will assist the trier of fact, a witness qualified as an expert by knowledge, skill, experience, training, or education may provide opinion testimony if:

  1. the testimony is based upon sufficient facts or data;
  2. the testimony is the product of reliable principles and methods; and
  3. the witness has applied the principles and methods reliably to the facts of the case.

Fla. Evid. Code § 90.702.  Additionally, similar to Federal Rule of Evidence 703, the Florida statute also specifies that facts or data that are otherwise inadmissible may not be disclosed to the jury unless the court determines that their probative value substantially outweighs their prejudicial effect.  Fla. Evid. Code § 90.704.  The new rules of evidence take effect July 1, 2013.

Interestingly, the statute itself provides courts with specific guidance on how the legislature meant it to be interpreted and applied.  Indeed, the preamble to the statute expressly states that Florida’s new Daubert standard should be interpreted consistent with Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).  The statute also specifies that Florida courts are no longer to allow the admission of “pure opinion testimony” as was permitted in Marsh v. Valyou, 977 So.2d 543 (2007), under the Frye standard.  In Marsh, the Florida Supreme Court held that a causation expert’s proffered expert testimony that trauma can cause fibromyalgia was “pure opinion testimony” which was not subject to the requirements of the Frye standard and was therefore admissible regardless of whether the hypothesis had not gained general acceptance in the scientific community.  According to the court, the expert’s causation opinion was “pure opinion testimony” because it was based on his experience and training.  The changes to Florida’s evidence rules are intended to prohibit the admission of such testimony.