On May 23, 2019 the Supreme Court of Florida reversed itself and adopted the Daubert standard for determining the admissibility of expert testimony. In case no. SC19-107, In re: Amendments to the Florida Evidence Code, the court reversed its decisions in In re Amendments to Florida Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017) and DeLisle v. Crane Co., 258 So. 3d 1221, 1229 (Fla. 2018). In those decisions the court rejected the implementation of Daubert and retained the Frye standard because it perceived the Florida legislature as infringing on its power to enact procedural law when it amended Sections 90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts) of the Florida Evidence Code in 2013.
The Frye standard held that in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
In 2013, Florida’s Legislature rejected the longstanding Frye standard and adopted the Daubert standard and Federal Rule of Evidence 702 with two amendments to the Evidence Code. First, the Legislature amended section 90.702 to mirror Federal Rule of Evidence 702 as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, 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; however, the opinion is admissible only if it can be applied to evidence at trial.
Ch. 2013-107, § 1, Laws of Fla.
Next, the Legislature amended section 90.704:
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
Ch. 2013-107, § 2, Laws of Fla.
In receding from its prior decisions, the court did not give any significant reason for adopting Daubert now, other than it now agreed with Justice Polston’s conclusion in his concurring/dissenting opinion in In re Amends. to Fla. Evidence Code 210 So. 3d 1231, 1242-43, that the “grave constitutional concerns” raised by those who oppose the amendments to the Code appear unfounded”, as well as its “longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature…”
It seems the Supreme Court of Florida simply changed its mind and has now joined 36 other states and the entire federal court system (25 years later) in adopting Daubert as the standard for admission of expert testimony.