After more than five years of uncertainty, the Florida Supreme Court reversed course and announced the Daubert standard will now govern the admissibility of expert testimony within the Florida court system, replacing the Frye standard. See In Re: Amendments to the Florida Evidence Code, No. SC 19-107, May 23, 2019.  Courts apply strict rules on the admissibility of scientific evidence in legal cases in order to prevent junk science and unqualified experts from influencing a judge or jury.

Following revisions to the Federal Evidence Code in 1993, the Supreme Court of the United States set forth a new standard for the admission of expert testimony in the case Daubert v. Merrell Dow Pharmaceuticals, Inc.  See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).  Prior to 1993, the Frye standard was widely used throughout federal and state courts.  See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  Since 1993 most state courts have adopted the Daubert standard, but Florida remained uncertain and moved back and forth between the two standards.

Frye vs. Daubert

Under the Frye standard, the court is tasked with reviewing whether the methodology being employed by the expert is generally recognized as being scientifically accepted. If this finding is made, then the question of whether the methodology is applied correctly would be a question for the jury. In addition, Frye is limited to new or novel scientific evidence. Under the Daubert standard, the court is charged with evaluating the methodology and, unlike under Frye, whether the application of that methodology is applied by the expert reliably to the facts of the case. Daubert requires that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable.”  Daubert, 509 U.S. at 589.  Unlike Frye, Daubert applies to all expert testimony.  

It was not until 2013 that the Florida Legislature amended the Florida Evidence Code changing the standard for expert testimony from Frye to Daubert, joining the federal courts and most other state courts. However, the Florida Supreme Court did not acknowledge the change and Frye and Daubert were used inconsistently throughout the state. In 2018, the Florida Supreme Court tried to settle the issue and in a 4-3 decision in DeLisle v. Crane the court affirmed that the Frye standard was the appropriate level of scrutiny for expert testimony in Florida.  See DeLisle v. Crane., 258 So. 3d 1221 (Fla. 2018). The Florida Supreme Court found the 2013 adoption by the Florida Legislature of the Daubert standard was an unconstitutional infringement of the supreme court’s power to determine matters of practice and procedure.  See DeLisle v. Crane. Then in an unexpected reversal, the Florida Supreme Court, without revisiting DeLisle, adopted the Daubert standard, setting aside the less stringent Frye standard. Roughly six months from the DeLisle decision and with a substantially different bench, the Florida Supreme Court used its executive rulemaking authority and affirmed a new standard for Florida courts. The Court noted that the adoption of Daubert would “create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”  In re Amendments to the Florida Evidence Code, No. SC 19-107 at 6. 

Infotech Consulting’s economic and econometric experts have been subject to the scrutiny of both Frye and Daubert as Infotech Consulting represents clients in Florida and nationwide.  Each of our experts have routinely and consistently surpassed the more daunting Daubert standard in cases ranging from employment law to healthcare to large multi-district antitrust cases.