The American Tort Reform Association’s recently released 2017-2018 Judicial Hellholes® Report once again highlighted the state of Florida.The Report focused, as it has in the past, on recent decisions by the Florida Supreme Court that expand liability and show the high Court’s “barely contained contempt for the lawmaking authority of legislators and the governor.” In particular, the Report highlighted that the Florida Supreme Court recently sided with the State Bar of Florida’s recommendation against the Court’s adoption of the Daubert standard, in which the Court cited vague constitutional concerns despite the use of the Daubert standard in a majority of state courts and every federal court. So where does that leave Florida when it comes to the standard for determining the admissibility of expert witness testimony – still in the “dark ages” using the old Frye standard, or in a “hellhole” where litigants do not know which standard is applicable and, thus, have to attempt to satisfy or defeat both?

PROCEDURAL BACKGROUND

The path that led to Florida litigants being between Scylla and Charybdis, of sorts, began in 2013, when the Florida legislature passed a bill requiring Florida state courts to follow the Daubert standard (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)) in determining the admissibility of expert witness testimony. Because the law is one that amends a rule of court, however, it is subject to scrutiny by the Florida Supreme Court, which has constitutional authority to approve or reject a legislative change to a rule of court to the extent it is procedural.

Prior to 2013, Florida courts followed the Frye standard (Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) for determining the admissibility of expert witness testimony. Although the Florida Evidence Code is modeled on the Federal Rules of Evidence, the Florida Supreme Court refused to follow the U.S. Supreme Court’s lead in replacing the Frye standard with the Daubert standard. The Florida legislature then attempted to override the Florida Supreme Court’s intransigence and force the adoption of the Daubert standard. The legislature rewrote the Florida statute on admissibility of expert witness testimony, Florida Evidence Code § 90.702, to incorporate the Daubert test. Florida Evidence Code § 90.702, as it now stands, reflects its federal counterpart, Federal Rule of Evidence 702, which itself is a codification of the Daubert test.

Because the change in the Florida evidence law concerns a “rule of court,” however, it is subject to review by the Florida Supreme Court. The Supreme Court has constitutional authority to adopt or reject legislative changes to “rules of court”—including rules of evidence—to the extent they are procedural (as opposed to substantive).¹ It is the duty of the Florida Bar’s Code and Rules of Evidence Committee (CREC) to make recommendations to the Florida Supreme Court on whether to approve or reject legislative amendments to the rules of evidence to the extent they are procedural. In the case of the 2013 law, the CREC initially voted to recommend approval of the Daubert amendment. After turnover in the Committee’s membership, however, the CREC reconsidered the issue and narrowly voted to recommend that the Supreme Court reject the Daubert amendment to the extent it is procedural. Following various further proceedings and hearings, on December 4, 2015, the Florida Bar’s Board of Governors voted to approve CREC’s recommendation and make that the State Bar’s recommendation to the Supreme Court. On February 1, 2016, the CREC made its official recommendation that the Court reject the Daubert amendment to the extent it is procedural.

Following lengthy and contentious public hearings on the issue, on February 16, 2017, the Florida Supreme Court declined to adopt as a rule of evidence the Daubert standard, as enacted into law by the Florida Legislature, following the recommendation of the Florida Bar’s Board of Governors and the Florida plaintiffs’ bar. In Re: Amendments to the Florida Evidence Code, Supreme Court of Florida, Case No.:SC16-181. The Court rejected replacing the Frye standard with the Daubert standard and, as its only reason for doing so, expressed “grave constitutional concerns” about the Daubert standard, which included that Daubert undermined the right to a jury trial and denied access to courts. The Court provided this nebulous and unsupportable basis despite the fact, as pointed out by the lone dissenting Justice that “the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in 1993, and the standard has been routinely applied in federal courts ever since. The clear majority of state jurisdictions also adhere to the Daubert standard.”

PRACTICAL APPLICATION

In September 2016, Florida’s Fourth District Court of Appeal, which covers Broward and Palm Beach Counties, among others, issued an opinion in Crane Co., et al. v. Richard Delisle, which had potentially significant implications for asbestos litigation in Florida as the Court struck a blow to the “every exposure” theory in Florida using the Daubert standard as its cudgel.

Following a trial that lasted more than four weeks in August and September of 2013, a Broward County jury returned a plaintiffs’ verdict against the remaining defendants in a living mesothelioma case. The jury awarded damages in the amount of $8 million, and apportioned liability among the three defendants and two nonparties. On appeal, the Appellants argued, among other issues, that the trial court erred by failing to exclude Plaintiff’s expert causation testimony as it failed muster under the Daubert standard.

The argument on appeal centered on the trial court’s decision to admit the testimony of Plaintiff’s expert, Dr. James Dahlgren, over objection on Daubert grounds. Dr. Dahlgren, a toxicologist, testified that “every exposure” above background to airborne asbestos of any kind would be a substantial contributing factor.

The 4th District Court of Appeal agreed, finding that Dr. Dahlgren had failed to provide support for his opinion that there is an association between mesothelioma and chrysotile asbestos and had failed to base his opinions on reliable principles and methods. The Court stated: “The opinion that every asbestos exposure level above background level is a substantially contributing factor has been rejected repeatedly by courts as insufficiently supported by data or testing to satisfy Daubert.” With no methodology and no support from data or studies, the Court of Appeal found that the trial court erred in admitting Dr. Dahlgren’s “every exposure” theory opinions.

In February 2017, shortly before the Florida Supreme Court declined to adopt the Daubert standard, the Delisles filed a cert petition challenging the law enacted by the Florida Legislature making theDaubert standard the rule for expert admissibility in Florida on the ground of separation-of-powers. The Delisles claimed that, at the September oral argument to the Florida Supreme Court on whether the Court should approve the Daubert amendment, “several Justices noted the lack of a pending case formally seeking review in this Court of an appellate decision from a final judgment touching on objections to Daubert and making pertinent arguments in the context of the actual application of Daubert.” The Delisles argued that theirs is just such a case. The Florida Supreme Court, apparently on a razor’s edge, agreed in July 2017 by a 4-3 split to take up the case. Oral arguments are now set for March 6, 2018.

It remains to be seen what the immediate impact of the Supreme Court’s decision not to adopt the Daubert standard will be, but it likely means the Fourth District Court of Appeal’s DeLisle opinion will be vacated. At a minimum, the DeLisle appellate decision is now no longer good law. The only bright spot for the litigants in the case may be the footnote in which the DeLislecourt indicated that it would have ruled most of the expert testimony inadmissible even under Frye: “Moreover, if the Frye standard applied, most of the expert testimony clearly would be inadmissible as the experts failed to show that the methodology was generally accepted in the scientific community.” However, any small victory in the case would pale in comparison to the dim view of defendants from the “Hellhole” of Florida litigation if the Florida Supreme Court, as it is expected to do, returns Florida to the Frye standard in which junk science is admitted under the lax “general acceptance” rule. Despite the efforts of the Florida legislature to bring the Florida evidence code in line with more enlightened thinking, the Florida Supreme Court and the plaintiff bar-dominated Florida Bar seem determined to keep Florida in the dark ages.

---

_{1 The Florida Supreme Court has rejected only one legislative amendment to the rules of evidence since the adoption of the Florida Evidence Code in 1976.}