Florida Legislature Adopts Daubert Standard for Expert Testimony
The Florida House and Senate have passed a Daubert bill, which now apparently awaits only the governor’s signature.
After years of trying, Florida has, at least legislatively, become the country’s 27th (or 21st or 31st, depending on which definition sways you) Daubert state. The federally adopted Daubert standard for admission of expert testimony replaces Florida’s Frye standard and it’s much criticized adjunct, the Pure Opinion Exception.
Daubert was adopted by federal courts in 1993 and requires, inter alia, that expert testimony be proffered by a qualified expert and shown by the proponent of the testimony to be both relevant and reliable. Meeting Daubert’s reliability prong is the sole point of Daubert’s well-known four factors (there are really five) and is the heart of the federal standard. Reliability is treated rigorously under Daubert and subject to active judicial gatekeeping. Daubert sets an intentionally lower hurdle for expert qualification and seem to take the view that jurors need less judicial assistance with knowing if a piece of expert evidence is relevant to their deliberations than they need in knowing if a piece of proffered scientific opinion is based on sound science or on junk expert testimony.
Daubert displaces a Florida Frye standard that never was rigorous and that had become embarrassing to Florida for its famous Pure Opinion Exception (POE). The POE held that if an expert eschews science entirely and relies only on her experience and training the purported expert opinion comes in without any review, Frye or otherwise.
Florida had come under increasing pressure over POE over the past few years and there may be no more apt example of the difference between Daubert and Frye than the comparison of Pure Opinion testimony under Florida Frye to its analogue under Daubert. Expert testimony that, in Frye-speak is called Pure Opinion, is in Daubert-speak called ipse dixit, or more often “mere ipse dixit.” Ipse dixit means “he, himself, said it” and conveys the notion that there is no support for the expert’s position other than the expert’s own opinion. Under Florida Frye, such bare opinion is explicitly exempted from judicial review and automatically admitted, while under Daubert such bare opinion is derided as the mere ipse dixit of the expert and regularly excluded. Indeed, the ability to hang the tag “mere ipse dixit of the expert” on proffered testimony is the grail for writers of Daubert motions to expert testimony.
A briefest recap of Daubert
The admissibility of expert testimony in federal court is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 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), and their progeny. The initial Daubert opinion provides a set of admissibility criteria for federal court expert testimony and installs the trial judge as a “gatekeeper,” charged with evaluating all proffered expert testimony and admitting only testimony that is found both relevant and reliable. Daubert says that “[p]reliminary questions concerning the . . . admissibility of evidence shall be determined by the court.” Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Daubert at 592–593. Questions of admissibility are matters of law to be determined by the judge.
Daubert interpreted Rule 702 “Testimony by Expert Witnesses,” which provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case.
Rule 702 was amended effective December 1, 2000, to incorporate the Daubert/Kumho Tire Co. line of cases: In the words of the Committee Note, the amendment was “in response to Daubert . . . , and to the many cases applying Daubert, including Kumho Tire Co.” Rule 702, Advisory Committee Notes, 2000 Amendments.
The reliability component of Daubert is the core of the opinion and the Daubert Court said that “[t]he subject of an expert’s testimony must be ‘scientific . . . knowledge,’” because “the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.” Id. at 589–590.
Daubert articulated five criteria for evaluating the reliability of expert testimony: (1) whether the methods on which the testimony is based have been tested; (2) the known or potential rate of error associated with the testing; (3) whether the method has been subject to peer review; (4) whether the method is generally accepted in the relevant scientific community; and (5) whether standards exist for the use of the method and whether the expert has followed these standards. Suggestions that there are four Daubert factors are based on too-casual a reading of the opinion.