On October 15, 2018 the Florida Supreme Court invalidated Section 90.702, Florida Statutes of the Florida Evidence Code. In the case of Delisle v. Crane Co., Vol. 43 FLW S459, the Florida Supreme Court declared Section 90.702––which establishes criteria for the admissibility of expert testimony in Florida courts––to be unconstitutional as violating the separation of powers between the legislative and judicial branches of government. The legislature enacted Section 90.702 in 2013 to bring Florida state courts into alignment with the federal standard for admissibility of expert testimony, which is known as the Daubert standard.

The Supreme Court held that the adoption of the Daubert standard by the Florida legislature infringes on the Supreme Court’s rule-making authority because the statute is procedural rather than substantive in nature. As the Court put it, “The Legislature has the power to enact substantive law while this Court has the power to enact procedural law.” The court held:

Section 90.702, Florida Statutes, as amended in 2013, is not substantive. It does not create, define, or regulate a right. Indeed, while we have stated that the Florida Evidence Code contains both substantive and procedural rights, this statute is one that solely regulates the action of litigants in court proceedings.

Id. S462.

Consequently, Florida reverts to joining a handful of states that still employ the so-called Frye standard. The century-old Frye standard requires that in order for expert testimony to be admissible, it need only meet the single requirement that it be based on methods that are considered “generally accepted” within the relevant scientific community. For many decades, authors have criticized the Frye standard as permitting scientifically dubious expert testimony in the courtroom.

Curiously, the opinion appears to characterize Daubert as the more lenient standard. Daubert requires courts to take an active role in evaluating the reliability of the application of the scientific method to the bases for expert testimony, as opposed to the singular requirement of Frye that the methods themselves merely be “generally accepted” in the relevant scientific community. The practical effect will be a return to a relaxed standard for scientific testimony in the courtroom in which judges will play a much less prominent role in ensuring scientifically sound testimony. Consequently, litigants will find it more difficult to challenge testimony by experts based on dubious science. This will also result in a dichotomy between state and federal courts within Florida with respect to the standards admitting expert testimony.