For the last four years, Florida has used the Daubert standard in civil trials as a means of testing the scientific validity of testimony by expert witnesses. Previously, the state courts adhered to the less strenuous Frye standard. Both standards are named for specific cases that set the criteria for what kinds of evidence would be admissible in civil cases. Federal courts have been using the Daubert standard for 20 years. Florida legislature’s passage of House Bill 7015 eliminated Florida’s reliance on the Frye standard, effective July 2013. Defense attorneys in particular were pleased with this because it meant more ways in which to attack expert witness testimony from plaintiffs, who bear the burden of proof.
Now, a closely-watched case that will be weighed by the Florida Supreme Court by the year’s end could change that. In Delisle v. Crane Co., et al., plaintiffs, husband and wife, challenge several industrial manufacturers, alleging liability for the husband’s mesothelioma allegedly linked to defendant’s asbestos-laden products. Plaintiffs originally filed suit against 16 different manufacturers, but only proceeded to trial against two of those – and won an $8 million verdict.
Defendants appealed, arguing there was a lack of causal connection between their products and plaintiff’s illness. Specifically, they challenged the admission of certain plaintiff expert witness testimony. Defendants asserted causation testimony by a pulmonologist should not have been admitted because the expert failed to provide an adequate scientific basis for his opinion. Another challenge was that the “every exposure” argument presented by plaintiff had already been discredited by previous court decisions. The appellate court reversed and remanded for a new trial.
Plaintiff alleged he was exposed to asbestos via sheet gaskets from one defendant and also from cigarettes manufactured by another.
Plaintiffs appealed the reversal and remand, and now the Florida Supreme Court is slated to hear the personal injury case. A number of groups have written friend-of-the-court briefs, arguing a reversal of the Daubert standard could produce unfair outcomes at trial.
With Frye, the method relied on general acceptance of an expert’s techniques and methods. Daubert, however, takes into account a scientific knowledge, asking whether testimony is not only relevant but reliable. It tests the principles and methodology, placing the judge in the position of gatekeeper. Judges must consider:
- If the technique or theory can be or has been tested;
- If technique or theory has been subjected to peer review and publication;
- If there is a known or potential rate of error;
- If the technique or theory is generally accepted among those in the relevant scientific community.
Supporters of Daubert state the goal is to prevent testimony based on “junk science” and ensure the evidence considered is credible.
Critics of the Daubert standard have voiced concerns that it hinders plaintiffs’ access to the courts. It could hinder legitimate claims, particularly when injury attorneys know the time, effort and cost it will take to overcome Daubert standard challenges. It has a particular effect on cases involving testimony needed to establish medical causation.
Our Orlando personal injury lawyers will be closely watching the state supreme court’s decision in this matter.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Game-Changer: Closely Watched Case Could Change Florida’s Evidence Rules, Aug. 22, 2017, By Samantha Joseph, Daily Business Review
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