Florida May See Changes On Expert Witness Standards

Every auto accident case has questions that need answering. How did the accident happen? Who was at fault? Were there injuries? The answers to these questions and countless others have to be proven by the plaintiff, who bears the burden of proof. Answering those questions often requires the use of expert witnesses. Expert witnesses can be medical providers, accident reconstructionists, or even experts in medical billing who scrutinize a doctor’s bill. Recently, the Florida Supreme Court issued an opinion which could have a big effect on how those experts are used.

The Frye Standard vs. The Daubert Standard

Experts have to meet certain qualifications before they can testify. These qualifications are established by rules and case laws. For years, Florida operated under what is known as the Frye standard: the scientific theory or discovery that is the basis of the expert’s opinion must be reliable and accepted by the scientific community.

This Frye standard reigned supreme in the United States for over 70 years. Then, in 1993 the Supreme Court of the United States adopted a new standard: the Daubert standard.  Under that standard, the trial judge must determine whether an expert is reliable by weighing four factors:

  1. the ability to test the expert’s methodology
  2. peer reviews and publications of the  methodology
  3. the known and potential error rate of the methodology
  4. the methodology’s acceptance in the relevant scientific community

In short, it’s a lot tougher for an expert to pass the test.

Even though the United States Supreme Court and 36 states quickly adopted the Daubert standard, Florida stuck with Frye until 2013. That’s when the Florida legislature amended statutes §90.702 and §90.704 to adopt Daubert, making it tougher for experts to get in front of juries. Since then, Florida Courts have been operating under the standard. Now, all that could change again.

What Now?

On February 16, 2017, the Florida Supreme Court issued its opinion, In re: Amendments to the Florida Evidence Code – So. 2d –, 2017 WL 633770 (Fla. 2017) wherein the Court declined to adopt the Daubert standard “to the extent it is procedural.” This language is because the Florida Supreme Court has autonomy and authority over its own rule-making. The Florida Legislature can’t force it to adopt anything “procedural.” However, the Florida Legislature can write “substantive” law which the Supreme Court must interpret and apply. The question now becomes: is Daubert “procedural” or “substantive?”

The answer remains to be seen. The Florida Supreme Court declined to address that issue in its opinion, and instead must wait for an appropriate case or controversy. In the meantime, it’s better to be safe than sorry. Make sure your expert meets Daubert.


The attorneys at Perenich, Caulfield, Avril & Noyes represent those involved in car accidents, motorcycle accidents, bicycle accidents, pedestrian accidents, and other types of personal injury matters. Our firm is one of the oldest personal injury law firms in Tampa Bay. There are no attorneys’ fees or costs unless we prevail for you. Call our office 24 hours a day at 727-796-8282 or simply click here to schedule a free case consultation.

Related Post

Leave us a reply