As foreshadowed below, the Florida legislature has finally adopted Daubert, bringing the potential for rigorous scrutiny of expert testimony to one of the nation’s largest—and, some would say, more plaintiff-friendly—jurisdictions. Judging from past experience, we can expect a series of cases testing the implications of the move, if not the move itself. Here are some questions we might see soon:

1. Does Daubert even apply here? Under Marsh v. Valyou, 977 So. 2d 543, 547 (Fla. 2007), Florida’s old Frye rule arguably did not apply to some controversial testimony, even though it would have received Daubert scrutiny in Daubert courts and Frye scrutiny in most Frye courts. Litigants who benefited from that rule will no doubt seek to preserve something of its force, although they will face a major obstacle—the text of the new law itself and its legislative history make reasonably clear that all expert testimony is now potentially up for review.
2. Was the change constitutional? Those opposed to the rule change may well mount a constitutional challenge. A similar effort was successful in Arizona several years ago, based on separation of powers concerns, but the victory was short lived—Daubert was simply re-adopted by a different means.
3. What does Daubert require? The Florida bench and bar are going to have to learn to use some new muscles, which may take some time. Initially, there may be some cases testing what Daubert scrutiny actually requires, although the vast body of case law from federal and state courts should help in resolving these quickly.

No doubt other issues will arise. The next few years promise to be interesting as these and other questions work their way through the Florida courts, and counsel should be prepared to address them in addition to the “merits” of expert testimony.

The Florida Senate Judiciary Committee voted 6-3 this week to advance a bill that, if passed, would move Florida's admissibility of expert witness testimony standard from a Frye to a Daubert standard. This action would bring Florida in line with various states and federal courts, which use the stricter Daubert standard.

Under Daubert, expert witness testimony is admissible if the expert's methodology is relevant to the facts at issue and is scientifically valid based on factors such as "whether the theory or technique in question can be and has been tested, and whether it has been subjected to peer review and publication," among others. The Frye standard, on the other hand, allows for the admissibility of expert opinions based on whether the principles or techniques presented have gained general acceptance in their respective fields. Alternatively, several states also employ a hybrid model that takes elements from both standards.

Opponents of the bill fear the backlog that would result if Florida courts were made to hold Daubert hearings, during which a judge would hear challenges to expert witness testimony, thus prolonging the litigation process. They similarly argue that the more scientifically complicated issues a case presents, the greater the burden is on the state court hearing the matter. Conversely, proponents of the bill laud the proposed shift to the Daubert standard as a means of eliminating the potential inclusion of unreliable scientific evidence into a trial.

Please see Florida Senate Bill SB 1412: Expert Testimony for more information.

On March 18, 2013, the United States Supreme Court declined to review the case of an expert witness who was personally seeking to challenge the decision of a trial court excluding his testimony in a personal injury lawsuit.

Dr. David Egilman had been offered as an expert witness to link Plaintiff’s respiratory injury to the chemical diacetyl, which is blamed for “popcorn lung.” The California federal judge presiding over the case at the trial level refused to allow Dr. Egilman’s testimony, explaining that he had failed to provide proper scientific support for his opinions and relied upon “foundational assumptions.”

Dr. Egilman, independently and through personal counsel, sought review of the trial judge’s decision by the Ninth Circuit Court of Appeals. He claimed the trial judge had issued “baseless and defamatory attacks” in determining his testimony to be unreliable. Dr. Egilman argued that the refusal to admit his testimony, as well as the accompanying criticism of his opinions, damaged his reputation and prospects of future employment as a forensic expert. The Ninth Circuit dismissed the appeal, holding that Dr. Egilman did not have standing to seek review of the trial court’s decision because he was not a party to the underlying action.

Subsequent to the Ninth Circuit’s dismissal of his appeal, Dr. Egilman petitioned the United States Supreme Court for certiorari. The Supreme Court, however, denied the petition, ending Dr. Egilman’s quest to have the trial court’s ruling reviewed.

On November 26, 2012, in a matter involving a claim for breach of contract and lost profits, the California Supreme Court, in a major decision, reversed the judgment of the court of appeals, which had held the trial court erred in excluding expert testimony regarding plaintiff’s lost profits. Sargon v. USC (Case No. S191550) The Sargon decision will have significant implications in cases concerning the admissibility of expert witness testimony and contractual loss profit claims.

Read More

Much of the admissibility action occurs under Daubert, but it’s good to remember that Frye still holds sway in several important states. In that regard, the Pennsylvania Supreme Court’s decision in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012), is a reminder that Frye, can, when properly applied, approach the rigor of a good Daubert ruling.

The expert testimony in Betz involved the infamous “every fiber” opinion, under which every single exposure to asbestos—no matter the circumstances—is deemed a substantial contributing factor to disease causation. Although a few courts tolerate that opinion as a matter of practice, a number of judges who have faced the issue head-on have rejected it as utterly devoid of scientific support and, frankly, at odds with the implicit notion in substantial factor causation that some factors are not substantial.

What is significant about Betz joining that list (earlier decisions had forecast the result as to the “every fiber” opinion) is the searching application of Frye the Court endorsed. The trial judge ably walked through the gaps in the expert’s reasoning and the limits of the bases for his opinion, refusing to defer to an expert’s vague claims to be practicing a scientific methodology. As under Daubert, that kind of open-eyed, fulsome review will knock out junk science. Betz reminds us that, whatever its flaws, at 89 years and counting, Frye can still punch.

Last week the Supreme Court of Pennsylvania rejected the notion that “each and every fiber” of asbestos amounted to a substantial cause of a given plaintiff’s disease and affirmed a trial court’s ruling excluding such testimony. Betz v. Pneumo-Abex, LLC, et al., No. 38 WAP 2010 (May 23, 2012). In the lengthy opinion, the Court concluded that an expert’s testimony that “each and every” fiber of asbestos was a substantial cause of disease was in irreconcilable conflict with itself: “one cannot simultaneously maintain that single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.” Id. at p. 48. In making this finding, the Court observed that while the expert in question had himself testified that three factors (potency, concentration, and duration) needed to be considered in estimating the relative effects of different exposures, the expert did not consider those three factors in arriving at his opinions. Id. at 48-49. The Betz opinion is in line with other Pennsylvania precedent, including Summers v. CertainTeed Corp., 606 Pa. 294 (2010); Gregg v. V-J Auto Parts Co., 596 Pa. 274 (2007); and In re: Asbestos Litigation, No. 0001, 2008 Phila. Ct. Com. Pl. LEXIS 229 (C. P. Philadelphia, Sept. 24, 2008).