On April 26, the Florida legislature passed a bill that requires courts to evaluate expert testimony under the Daubert standard. If the governor signs it, the law will go into effect on July 1, and Florida will join the majority of state courts and the federal courts that already have adopted Daubert wholesale or in part.

Adoption of Daubert will mean the end of the controversial, idiosyncratic Frye standard in Florida state courts, in which expert testimony is admissible if the witness has “scientific, technical, or other specialized knowledge” that relates to an issue in the case and assists the jury. Only when an expert’s opinion concerns a “new and novel” scientific technique does a court test its reliability under the Frye standard, which requires that an expert’s methods be “generally accepted” in the relevant scientific community. The little judicial scrutiny for reliability that exists may be avoided under the state’s “pure opinion exception” (POE). The POE provides that, if the expert relies only on his or her personal experience or training, the testimony is admissible without being subject to a Frye hearing.

Critics have contended that the current system’s “let it all in” approach relies on the battle of the experts to resolve expert testimony issues. More problematic still, it forces juries to assess matters of science on which there is not yet a consensus among scientists.

Under Daubert, the court functions as a gatekeeper, admitting only testimony from a witness who qualifies as an expert in the field and whose testimony is helpful to the jury, is relevant, and is “the product of reliable principles and methods.” Cases building on Daubert expressly have rejected the “because I say so,” or “ipse dixit,” approach that Florida has embraced by way of the POE.

Opponents of the new legislation, in turn, have warned that a Daubert-like standard will lead to prolonged litigation because of the resulting Daubert motions and hearings and  unreasonably burden the state court system. The bill’s history is available at www.flsenate.gov/Committees/billsummaries/2013/html/489.