Florida Bar pushes back against expert-testimony law
By JIM SAUNDERS
THE NEWS SERVICE OF FLORIDA
THE CAPITAL, TALLAHASSEE, December 7, 2015.......... More than two years after the Legislature passed a controversial law aimed at tightening standards for expert testimony in lawsuits, Florida Bar leaders do not want the state Supreme Court to go along with the change.
The issue stems from a 2013 legislative move to require Florida courts to use the same standard that federal courts use in determining whether expert testimony will be admitted. Business groups lobbied heavily for the change, while plaintiffs' attorneys opposed it.
But after months of debate, the Bar's Board of Governors voted 33-9 on Friday to recommend that the Supreme Court not adopt the federal standard, known in the legal world as the "Daubert" standard. The Supreme Court acts on such issues because it has the constitutional power to adopt rules for the court system.
As an indication of divisions about the issue, a Bar committee earlier split 16-14, with the majority saying Florida should keep its decades-old standard, known as the "Frye" standard, instead of going with Daubert. A majority report of that committee contended, in part, that moving to the new standard would require costly and time-consuming hearings about expert witnesses.
"The need to schedule and conduct these hearings, then write lengthy Daubert opinions, delays justice and consumes scarce judicial resources,'' the majority report said. "In an era of restricted funding for Florida courts, expense and resource use are real concerns."
But a minority report pointed to the fact that the Daubert standard is used in federal courts and said using it in Florida courts would lead to greater consistency.
"Adoption of the Daubert bill will bring Florida into conformity with the federal courts and the courts of Florida's neighboring states, will promote fairness and predictability in the legal system, and will help to eliminate forum shopping,'' the minority report said.
The Republican-controlled Legislature approved the change in 2013 as part of broader lobbying battles about whether it should be harder to pursue lawsuits against businesses and doctors.
Business groups long complained that the state's Frye expert-testimony standard allowed "junk science" to go before juries. But trial attorneys and other opponents argued that moving to the more-restrictive Daubert standard would make it harder for plaintiffs to get their day in court against deep-pocketed defendants.
Expert-witness testimony can be critical in complex civil and criminal cases. The Daubert standard includes a three-part test in determining whether expert testimony can be admitted. That test involves whether the testimony is "based upon sufficient facts or data;" whether it is the "product of reliable principles and methods;" and whether a witness has "applied the principles and methods reliably to the facts of the case."
As Bar leaders considered the recommendation for the Supreme Court, attorneys from across the state sent comments about the issue. Along with business groups, other backers of the Daubert standard have included criminal-defense attorneys.
"While no admissibility standard is perfect and wrongful convictions will continue to occur, Daubert's hyper-focus on scientific reliability and its prohibition of pure opinion evidence will go a long way to create more reliable criminal justice outcomes that diminish the number of wrongful convictions,'' Seth Miller, executive director of the Innocence Project of Florida, wrote last month.
But many of the comments were similar to an email submitted by Tallahassee plaintiff's attorney Henry J. Graham, who called the move to the Daubert standard "a remedy in search of a problem."
"The only beneficiaries would be insurance companies, other large corporations, and their legions of law firms and 'usual suspect' experts who will spend whatever sums of money are required to make litigation prohibitively expensive for injured plaintiffs and the self-funded law firms that represent them, like ours,'' said Graham, who is with the firm Barrett, Fasig & Brooks.
