Expert evidence
Florida adopts new standard for expert evidence
Florida has become the latest state to adopt new legislation that will make it tougher to admit expert evidence in court cases, but some plaintiffs' lawyers say the move could make litigation more costly and time-consuming.
Florida's Republican Governor Rick Scott on Wednesday signed into law H.B. 7015. The law, which is scheduled to go into effect on July 1, replaces the so-called Frye standard with the more rigorous Daubert standard.
Under the U.S. Supreme Court's 1923 decision in Frye v. U.S., expert evidence is admissible when the expert's methods or practices are generally accepted within the scientific community. In the 1993 decision Daubert v. Merrell Dow Pharmaceuticals, that standard was replaced with a more expansive test, which requires a judge to use a multipart test to determine whether expert testimony is sufficiently reliable.
While federal courts and a number of states including Arizona and Wisconsin have adopted Daubert, Florida remained a Frye state.
Florida's expert evidence standards have made the state a destination for "litigation tourism," making it more attractive to lawyers whose experts were disqualified under a more exacting Daubert standard, according to Florida attorney Stephen Mahle, who specializes in Daubert issues.
After several unsuccessful attempts to adopt the Daubert standard, H.B. 7015 was passed by the Florida Senate and the state House of Representatives on April 29. Scott signed it into law on Wednesday, saying it would create a "fairer system."
Supporters of H.B. 7105, said it would help reduce costly and unnecessary legal actions and bring the state in line with U.S. federal courts, which have operated for 20 years under Daubert.
"This is an important step forward in improving Florida's legal climate and making our state more competitive," Florida Chamber of Commerce executive vice-president David Hart said in a statement.
TYING UP CASES WITH DAUBERT
But plaintiffs' and other trial lawyers said it could increase litigation costs for plaintiffs and bog down cases in time-consuming hearings over who qualifies as an expert.
The Trial Lawyers Section of the Florida Bar Association opposed the legislation. Its legislative chairman, Thomas Bishop, a partner at Tanner Bishop, said in an interview, "If litigants are forced to expend a lot more time and money than necessary to get to the courtroom, that's bad for everybody."
Troy Rafferty, a shareholder at plaintiffs' firm Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, said his biggest concern about the new law was that defendants in Florida courts would begin using Daubert as a "sword instead of a shield" to tie up plaintiffs' cases with lengthy hearings and motions.
But Christopher Brown, a partner at Wilson Elser Moskowitz Edelman & Dicker in Miami who defends companies in product liability and other cases, said that Daubert, when properly applied, could make litigation "less costly and time consuming, because it's going to eliminate a lot of cases that should not get to the jury."
While the trial bar section opposed the legislation, Bishop said it ultimately hoped that judges would use the new standards the way they used the old ones: to thoroughly vet expert testimony.
"We share the same goal, whether it's the legislature or the courts, everybody wants to see expert evidence that goes to a jury to be reliable," Bishop said.
(Published by Thomson Reuters – June 7, 2013)