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Florida Supreme Court Declines to adopt Daubert or “Same Specialty” as Rules


          OnThursday, February 16th, the Supreme Court of Florida issued an opinion refusing to adopt the Daubert Amendment amending sections 90.702 (testimony by experts) and 90.704 (basis of opinion testimony by experts), Florida Statutes (2012).  These sections purport to change the standard of admissibility for scientific expert evidence from the Frye standard to the Daubert standard, which is the standard found in Federal Rule of Evidence 702.  The Court held that the Frye test only applies to expert testimony based on new or novel scientific evidence, and that such evidence must be sufficiently established to have gained general acceptance in the scientific community. 

          The federal courts, in interrupting Federal Rule of Evidence 702, have followed what is known as the “Daubert Rule”, providing that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”  In applying this rule, the federal courts have empowered the trial court to be the “gatekeeper” for exclusion of opinion testimony.  This approach was codified by the Florida legislature in the so-called Daubert Amendment. 

          In refusing to adopt the Daubert Amendment, the Florida Supreme Court held that the legislative amendment to the evidence code in section 90.704, Florida Statutes, raised “grave constitutional concerns” by undermining the right to a jury trial and denying access to the courts.

          The “Same Specialty" Amendment amended section 766.102(5)(a), Florida Statutes (2012), to require a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty, rather than the same or similar specialty, as the health care provider against whom or on whose behalf the testimony is offered.  The Supreme Court of Florida declined to adopt the "Same Specialty" Amendment, also upon constitutional grounds.  It was held that the creating section 766.102(12) raised similar concerns that the statute is unconstitutional, since it has a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.

          This case is a long-awaited decision which settles the law on admissibility of expert opinions.  You can find the entire opinion at the following link: SC16-181 In Re: Amendments to the Florida Evidence Code.