The match of the decade- Daubert in one corner and Frye in the other. How this Florida battle over

In any case, the parties bring evidence into court to help prove their case. Criminal cases have different standards than civil cases but, in both, it's the evidence that makes or breaks a case. So the rules that dictate what evidence is admissible and what evidence is kept out (and away from the jurors' ears) can make all the difference in the outcome of the case. For a defendant in a criminal case, the difference can mean life or death. In Florida, the battle is on between two tests for expert, scientific evidence. If it were a boxing match, we would have Frye in one corner and Daubert in the other. The Florida Supreme Court will soon decide after hearing powerful legal argument from both sides and their supporters.

It's been 3 years since Gov. Rick Scott signed the Daubert amendments into law and Florida abandoned the Frye standard. "There remains a looming state of unsteadiness. Since July 1, 2013 (the enactment date of the Daubert amendment), there have been countless Daubert challenges, hearings, orders, appeals, opinions, articles, legal education seminars, meetings and debates all having to do with Daubert as a matter of Florida law. Will Daubert remain the rule or will Florida revert back to Frye?"

Frye is one of the most cryptic and debated decisions in the law. James Alphonzo Frye was tried for second degree murder. In his defense, he offered the results of a systolic blood pressure test through an expert's testimony to show he was telling the truth when he denied culpability. The trial court refused to admit the testimony into evidence.

In the past, Florida adopted the Frye doctrine, which stated that if the expert provided testimony which supported a new or original scientific theory, principle or discovery, the theory must have received some general acceptance within the scientific community. "The purpose for this standard was to ensure that “junk science” and the scientific theories hatched in someone’s basement did not confuse jury members who may not know the difference between the two. Also, the new or original scientific theories that generally were being put forth under this standard were purely opinion, rather than subject to any type of standard other than “general acceptance.” The courts were left wondering how many scientists needed to espouse this theory to be considered “generally accepted”?"*

and then came Daubert ....

The mothers of Jason Daubert and Eric Schuller took Bendectin (a drug to reduce morning sickness) during their pregnancies and claimed it caused their sons' limb deformities. They wanted their experts' testimony that Bendectin has a chemical structure that causes injuries to animal cells and that reanalysis of published epidemiological studies showed a statistical correlation with birth defects.Their experts stated that Bendectin caused injuries to humans. Giant pharmaceutical, Merrell Dow, argued the published epidemiological studies showed that among hundreds of people exposed to Bendectin there is no significantly greater incidence of the injuries claimed by Daubert and Schuller than among the general or unexposed population. The court sided with Big Pharma and didn't allow the evidence.

So where does Florida stand? The expert standard that the legislature enacted 3 years ago is the “Daubert” standard. It requires that any testimony that is scientific, technical, or that requires some other type of specialized knowledge and is being provided by an expert with the relevant background and experience, must be: (1.) Founded upon ample facts and data; (2.) the result of valid and legitimate scientific/technical principles and methods; and (3.) that the testimony being offered is a product of the application of the legitimate scientific/technical principles and methods. In addition, the expert testimony not only needs to meet this standard, but the information’s probative value in helping the jury to understand the scientific/technical theory must substantially outweigh any prejudicial effect that it may have on the opposing party’s case.

So what's the big deal anyway?

The changes between the standards may seem minor, but they will have quite an effect on future criminal and civil cases and what type of information that an expert witness can tell the jury. Juries generally believe the information that they hear from an expert. But the expert likely isn't the only opinion that is valid. This is especially true in areas where the scientific community opinion may be split. The debate rages on with both sides weighing in. Both sides are passionate. It will be interesting to read the analysis and conclusion of the Florida Supreme Court as they crown the winner in this battle.

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* Kevin Kulik, Esquire

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