THE STATE OF FRYE IN FLORIDA

George Zeckler[1]

Frye v. United States,[2] and Daubert v. Merrell Dow Pharms. Inc.,[3] established the two primary standards used by federal and state courts in determining the admissibility of expert testimony.  Daubert  is the standard selected by the United States Supreme Court for federal courts, and the overwhelming majority of states.   Historically, Florida Courts have employed the Frye standard.  However, in 2013, the Florida legislature enacted the “Daubert Amendment” to the Florida Evidence Code, amending sections 90.702 and 90.704 of the Code.  This amendment selected the Daubert standard and rejected the Frye standard so that it no longer applied within Florida courts.

Nevertheless, in February 2017, the Florida Supreme Court, by a vote of 4-2, “decline[d] to adopt, to the extent they are procedural, the changes to sections 90.702 and 90.704 of the [Florida] Evidence Code made by the Daubert Amendment.”[4]  The court based its decision on “grave constitutional concerns,” including “undermining the right to a jury trial and denying access to the courts,” and left the determination of the constitutionality of the statutes and whether the legislature’s Daubert Amendment is substantive or procedural change for a proper case or controversy.[5]  The court’s decision declining to adopt Daubert is contrary to the majority of states, as thirty-six states and the federal court system have adopted the Daubert standard of admitting expert testimony at trial.[6]  The inconsistency between the Florida Evidence Code and the Florida Supreme Court’s decision provided confusion within Florida courts as to which standard to follow.

However, in DeLisle v. Crane Co. provided the Florida Supreme Court with the case it needed to decide whether the Daubert Amendment was substantive or procedural and which standard the Florida courts would follow.[7]  On October 15, 2018, the Florida Supreme Court held in DeLisle, in a close 4-3 decision, that the 2013 amendment of section 90.702, Fla. Stat., was not substantive because it did not create, define, or regulate a right.[8]  Although the Florida Evidence Code includes both procedural and substantive rights, the court held this statute is a procedural rule because it exclusively controls the action of parties within court proceedings.[9]  Therefore, by the court’s declaration that the statute is procedural, it now falls within the Court’s exclusive authority under the Florida Constitution to “adopt rules for the practice and procedure in all courts.”[10]

Accordingly, the court held that Frye, not Daubert, is the appropriate test for determining the admissibility of expert testimony within the Florida courts.[11]  In comparing Frye with Daubert, the Court noted that “Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significant of the methodology used.”[12]

Prior to the Legislature’s 2013 Daubert Amendment, the Court repeatedly affirmed the Frye rule and consistently determined that Frye provides a higher standard for reliability than Daubert.[13]  Although the Legislature’s 2013 amendment to the Florida Evidence Code left courts and attorneys with doubts as to which standard for admissibility of expert testimony applied in Florida, the court’s definitive and clear decision in DeLisle leaves no doubt that Florida is a Frye state and will remain a Frye state.

[1] J.D. candidate 2019, FIU College of Law.

[2] 293 F. 1013 (D.C. Cir. 1923).

[3] 509 U.S. 579 (1993).

[4] In re Amendments to the Fla. Evidence Code, 210 So. 3d 1231, 1237 (Fla. 2017).

[5] Id. at 1239.

[6] Jerome Hoffman, Florida Supreme Court Rejects More Rigorous Expert Testimony Standard, Holland & Knight (Feb. 22, 2017), https://www.hklaw.com/publications/florida-supreme-court-rejects-more-rigorous-expert-testimony-standard-02-22-2017/.

[7]  No. SC16-2182, 2018 Fla. LEXIS 1883 (Fla. Oct. 15, 2018).

[8] Id. at *21.

[9] Id.

[10] Art. V, § 2, Fla. Const.

[11] DeLisle, 2018 Fla. LEXIS 1883, at *23.

[12] Id.

[13] Id. at *17.