FL Supreme Court Refuses To Reconsider Expert Witness Issue

Aug 30, 2019

The Florida Supreme Court has denied requests that it reconsider a controversial May decision that revised standards for expert witnesses in lawsuits.

The court, in a 6-1 ruling Friday, rejected rehearing requests filed by the Code and Rules of Evidence Committee of The Florida Bar and Jacksonville attorneys Howard Coker and James Holland.

The court, with Justice Jorge Labarga dissenting, did not explain its reasoning. The issue deals with long-debated standards for expert testimony, which can play a key role in complicated civil and criminal cases.

In 2013, the Legislature approved a law that sought to move to what is known as the “Daubert” standard for determining whether expert testimony should be allowed. Business groups had lobbied for the change, arguing that “junk science” was being allowed into cases under another standard, known as the “Frye” standard.

But in 2017, the Supreme Court, which has the power to set court procedures, blocked the move to the Daubert standard. In a 4-2 decision, it pointed to “grave constitutional concerns” about the Legislature’s effort to change the standard.

But in May, after Gov. Ron DeSantis’ appointment of three new justices to fill vacancies, the court changed direction and moved to the Daubert standard. In a June motion for rehearing, the Bar committee pointed to the Supreme Court making the change without going through a typical process for setting rules.

“While it is clear the (Supreme) Court supports the content of the Daubert amendments as a rule of evidence, there has been no input from any member of the bench, the bar, or the citizenry that accounts for the change,” the committee’s motion said.

“The (Supreme) Court, in this case, revisited the final administrative decision without giving any notice or opportunity to be heard to practitioners or the public who are ‘on the ground’ using the rules.”