EVIDENCE
FRYE RETURNS by Matt Schultz
On October 15, 2018, the Florida Supreme Court reinstated the Frye standard for the admission of expert evidence. Let’s take a look at the game-changing opinion in DeLisle v. Crane Co., So.3d , 43 FLW S459, 2018 WL 5075302 (Fla. 10-15-2018).
How We Got Here
Before 2013, expert opinion testimony was admissible in Florida if it would “assist the trier of fact in understanding the evidence or in determining a fact in issue,” the witness was “qualified as an expert by knowledge, skill, experience, training, or education,” and the opinion could “be applied to evidence at trial.”1 So-called “pure opinion” testimony was admissible if it satisfied this standard.2 A Frye analysis for “general acceptance” of an opinion was required if an opinion was challenged as involving “new or novel” principles.3 Frye did not apply to “pure opinion” testimony.4 As we all know, the U.S. Supreme Court in 1993 adopted the Daubert “gatekeeping” standard for expert testimony in federal courts.5 While many states have adopted the Daubert standard, the Florida Supreme Court “repeatedly reaffirmed [its] adherence to the Frye standard for the admissibility of evidence,”6 characterizing Daubert as a “more lenient standard” and Frye as “the higher standard of reliability.”7 In 2013, the Florida legislature sought to institute the Daubert standard on its own. It amended sections 90.702 and 704, Florida Statutes. Section 702 (“Testimony by experts”) was amended to mirror the federal Daubert standard for expert testimony and to expressly reject “pure opinion” testimony.8 Section 704 (“Basis of expert testimony”) also was amended to match the federal standard, which requires a reverse-403 analysis in determining whether an expert may disclose otherwise inadmissible reliance evidence to the jury; but this amendment was unrelated to Daubert.9 In early 2017, the Florida Supreme Court declined to adopt the legislative amendments, to the extent they are procedural, as rules of evidence. It expressed “grave concerns” regarding the constitutionality of the Daubert amendment with respect to the right of access to courts and the right to trial by jury. However, it did not decide the consti-
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tutionality of the amendment because the case before it was a “rules” case, i.e., a decision whether to adopt the amendments and not a true case or controversy.10 DeLisle presented a true case or controversy, and the Court struck down the amendments.
The Majority Opinion
DeLisle involved a products liability case brought against various asbestos manufacturers and Lorillard Tobacco Company. The trial court applied the Daubert standard and admitted plaintiff’s expert testimony. Ultimately, the jury awarded $8 million in damages apportioned between various defendants. On review, the Fourth DCA reversed the verdict in part because it found the trial court failed to properly exercise its gatekeeping function under the Daubert standard. The Supreme Court granted review on the basis that DeLisle conflicted with its pre-amendment opinion in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007).11 Justice Quince authored the majority opinion — joined by Justices Pariente, Lewis and LaBarga — and held the Daubert amendment to §90.702 infringes upon the court’s rulemaking authority. Justice Pariente concurred separately, joined by Justice LaBarga. Justice LaBarga concurred separately, joined by Justice Pariente. Justice Canady dissented and was joined by Justices Polston and Lawson. To appreciate the basis for the opinion, understand that the Florida Legislature adopted (codified) the Florida Evidence Code in Chapter 90 of the Florida Statutes. To the extent any codification pertains to matters of substantive law, it is within the legislature’s constitutional purview. However, the Supreme Court maintains constitutional authority over “rules for the practice and procedure in all courts”12 and must adopt codifications to the extent they are procedural to ensure seamless application of the statutory provisions as rules of evidence. Or the Court may decline to do so and ultimately may be called upon to determine the constitutionality of a given enactment, e.g., whether it violates the separation of powers or whether it suffers some other constitutional defect such as depriving citizens of the right to trial by jury or the right of access to courts. Where the procedural requirements of a statute “conflict with or interfere with the procedural mechanisms of the court system, they are unconstitutional under both a separation of powers analysis, and because [they intrude upon] the exclusive province of the Supreme Court pursuant to the rulemaking authority vested in it by the Florida Constitution.”13 As the DeLisle decision explains, “‘[r]ules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court.’ We therefore chose to adopt the rules, ‘[t]o avoid multiple appeals and confusion in the operation of the courts caused by assertions that portions of the evidence code are procedural and, therefore, unconstitutional because they had not been adopted by this Court under its rule-making authority.’”14 The majority opinion goes on to explain the difference between substantive law (subject to legislative enactment) and procedural law (within the Court’s rulemaking authority):
