Florida's Switch From Frye to Daubert: Not A Substantial Change In The Admissibility Determination of Expert Witness Testimony
Sara W. Calabrese
Candidate for Juris Doctor, Stetson University College of Law, Gulfport, FL
Bernard F. Walsh, Esq.
Goldman, Babboni & Walsh, 5291 Office Park Boulevard, Bradenton FL, 34203
The Daubert standard is replacing the Frye standard in many states for determining the admissibility of expert witness testimony. The purpose of this article is to further an understanding of both tests and how they are effectively used.
On July 1, 2013 Florida House Bill 7015 will effectively change the standard of admissibility of expert witness testimony under the Florida Evidence Code.i In passing the bill, the Florida Legislature formally adopted the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and abandoned the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).ii
Though the Supreme Court decided Daubert in 1993, Florida courts declined to follow the decision because they considered the Daubert standard more lenient and less reliable than the Frye standard.iii However, a 2005 Virginia Law Review study concluded the practical results on the admissibility of expert testimony are essentially the same regardless of what standard a jurisdiction follows.iv
Judges construing the admissibility of expert testimony under the Frye standard have unwittingly been using the Daubert reliability factors to aid their decisions.v Therefore, the recent legislative change will not substantially affect how trial judges address the admissibility of expert witness testimony.
THE FRYE STANDARD
The Frye standard applies only to expert testimony based on “new or novel scientific” principles or procedures.vi For the testimony to be admissible, the principles and the procedures “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”vii General acceptance hinges on the quality and quantity of the evidence supporting the principles and procedures; majority support alone is insufficient.viii
In Ramirez v. State, the Florida Supreme Court specified the process by which a trial judge must evaluate expert witness testimony under Frye.ix First, the trial judge must determine whether the testimony is relevant; will the testimony “assist the jury in understanding the evidence or determining a fact in issue.”x Second, the trial judge must determine whether the scientific principles and procedures underlying the expert’s testimony meet the Frye general acceptance test.xi General acceptance must be proven by the proponent, and by the preponderance of the evidence.xii Third, the trial judge must determine whether the expert is qualified to testify on the issue in question.xiii The expert testimony is admitted if it meets these tests and then it’s up to the jury to evaluate its weight and credibility.xiv The standard of review of a Frye determination is de novo.xv
Expert testimony that is “pure opinion” or testimony that does not involve novel scientific evidence does not have to meet the Frye test to be admissible.xvi Pure opinion testimony is based only on the expert’s personal experience and training and is presumptively admissible as long as it is relevant and the witness is qualified to present the opinion.xvii “Frequently, there does not appear to be an obvious distinction between expert testimony which is pure opinion and that which is subject to Frye.”xviii
THE DAUBERT STANDARD
In Daubert, the court held the Federal Rules of Evidence superseded the common law in interpreting evidence; however, the common law still provides interpretive guidance to the courts.xix Rule 702 of the Federal Rules of evidence requires expert testimony be relevant to the case in issue and derived from the scientific method.xx The trial judge performing a Daubert admissibility evaluation acts as a “gate-keeper,” screening evidence to ensure only reliable scientific testimony is admitted.xxi
The court enumerated a number of factors to guide trial judges in performing a Daubert reliability evaluation.xxii The factors were not intended as a dispositive test or exhaustive checklist; some factors may not apply in all cases and additional factors may be considered.xxiii
First, the trial judge should consider whether the expert’s theory or technique was “derived from the scientific method” or more specifically, through “hypothesis testing.”xxiv Second, the trial judge should review the rate of error of the expert’s technique and evaluate what standards exist to control its operation.xxv Third, the judge should note whether the expert’s theory or technique were subject to peer review and publication as this increases detection of flaws.xxvi Finally, consistent with Frye, the court must consider whether the expert’s theory or technique is generally accepted in the relevant scientific community.xxvii Other rules of evidence are also important to consider in the admissibility analysis including Rules 703, 706 and 403.xxviii The standard of review of a Daubert ruling is abuse of discretion.xxix
In Kumho Tire Co., Ltd. v. Carmichael, the Supreme Court held the Daubert test applies to an expert’s pure opinion testimony in addition to scientific knowledge.xxx If the expert’s testimony is supported only by his personal experience and training and is unsupported by independent analysis, it is automatically excluded regardless of the witness’s qualifications.xxxi
RECONCILING DAUBERT AND FRYE
Upon evaluation of the two tests and the case law interpreting them, it is difficult to distinguish how evidence is reviewed for admissibility under the Frye and Daubert standards.
Goal of the Standards
The goal of both standards is the same: to prevent scientifically unreliable testimony from being admitted into evidence and prejudicing the jury’s decision.xxxii The goal of Daubert was not to create a new admissibility test necessarily, but to bring awareness of the problem of unreliable “junk science” to the judiciary.xxxiii
Role of the Trial Judge and the Burden of Proof
The trial judge’s charge as gatekeeper under Daubert is the same role the trial judge maintained under Frye and requires the same duties.xxxiv While both tests require the trial judge review the evidence supporting the reliability of the expert’s testimony, the burden of proof is on the proponent of the evidence.xxxv The difference between the two standards is the level of proof the proponent must demonstrate to the trial judge.xxxvi
Under Frye’s general acceptance, the proponent must demonstrate a threshold showing that the relevant scientific community recognized the expert testimony to be reliable.xxxvii The proponent need only provide the trial judge with a basis for knowing what the scientific community believes and generally accepts.xxxviii Thus, the trial judge was able to defer to the opinions of scientists in the pertinent field in evaluating the reliability of expert testimony; familiarity with the scientific method was not required.xxxix Daubert, however, requires the proponent go an extra step and prove the merit of the scientific basis underlying the expert witness testimony.xl
Both standards require the trial judge develop an understanding of the scientific evidence, but neither requires the trial judge become an expert.xli Rather, Daubert requires the proponent of the evidence provide the trial judge with more complete information to demonstrate the validity of the science.xlii “Pertinent evidence based on scientifically valid principles will satisfy [this] demand.”xliii This additional information empowers trial judges to reject suspect expert testimony as unreliable when it lacks the proper foundation in the scientific method.xliv
The move to the Daubert standard will likely have the greatest effect on the admissibility of pure opinion testimony and testimony based on standard scientific techniques.xlv Frye only applied to opinions based on new or novel scientific techniques.xlvi Therefore, testimony of this type was not subject to the general acceptance reliability review.xlvii Under Daubert, the proponent of pure opinion testimony will have to demonstrate to the trial judge something more than the expert’s personal experience and training to support the opinion.xlviii Furthermore, the proponent will also have to provide evidence for the basis of the standard scientific technique in order to demonstrate its validity and reliability.xlix The trial judge may still exclude the testimony if there is “too great an analytical gap . . . between the existing data and the expert’s conclusion.”l
Method of Evaluating Admissibility and Reliability
The Frye method of evaluating the admissibility of expert testimony is the same as the Daubert method. Under both tests, the trial judge must determine: (1) if the expert is qualified to offer the opinion, (2) whether the testimony is relevant to an issue in the case under consideration and (3) whether the expert testimony is reliable.li Under Frye, reliability is based on general acceptance in the relevant scientific community of the underlying scientific principle and the testing procedures.lii Under Daubert, reliability is based on a number of factors, including Frye’s general acceptance standard.liii
Florida courts interpreting Frye have used the Daubert factors as a method to evaluate the general acceptance standard.liv Peer review and publication of scientific methods are indications of general acceptance.lv Scientific theories and techniques are rarely peer reviewed and published if they are not developed through hypothesis testing and error rate calculation.lvi Furthermore, Florida courts have instructed expert witnesses to use hypothesis testing and error rate calculation in developing their opinions and have cited to scientific treatises to support this instruction.lvii
Evaluating Conflicting Expert Witness Testimony
As part of the reliability analysis, House Bill 7105 requires the expert witness testimony be “based upon sufficient facts or data.” lviii Oftentimes, experts reach different conclusions when scientific facts are in dispute.lix However, the trial judge is not to decide which version of the facts is the correct version and it is inappropriate to exclude expert testimony on this basis.lx
An expert opinion should not be excluded solely because of the existence of other conflicting opinions or because it required application of scientific judgment in forming the opinion.lxi Scientists may disagree on the same scientific issues, but this goes to the weight not the admissibility of their opinion.lxii “Trial courts must resist the temptation to usurp the jury's role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.”lxiii “To involve judges in an evaluation of the acceptability of an expert's opinions and conclusions would convert judges into fact-finders" to an extent not contemplated by Florida's Frye jurisprudence.”lxiv
Florida’s shift from the Frye standard to the Daubert standard will not substantially change the legal analysis judges use to evaluate the admissibility of expert witness testimony. The goal of the trial court will be the same; to admit only relevant and reliable expert witness testimony. The method of reviewing expert testimony for admissibility will also be the same. Finally, admissibility will still be within the discretion of the trial judge.
The shift to Daubert will increase the burden of proof on proponents of expert witness testimony. This additional burden will provide trial judges additional tools and force of law to reject junk science and require expert testimony be based on the scientific method. This will not impose additional responsibility on trial judges because they are already implicitly reviewing novel science for reliability under Frye using the Daubert factors.
i Florida Statute §90.702 was amended to read: “Testimony by experts: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.”
Florida Statute §90.704 was amended to read: “Basis of opinion testimony by experts. The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.”
ii 2013 Fla. Sess. L. Serv. ch. 2013-107 (West).
iii Brim v. State, 695 So. 2d 268, 271-272 (Fla. 1997).
iv Edward K. Cheng and Albert H. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility, 91 Va. L. Rev., 471-513 (Mar. 18, 2005) (evaluating removal rates to federal court when states switched from Frye to the Daubert standard concluded no statistical difference in number of cases filed under Daubert or Frye standard).
v Stephen Mahle, The Impact of Daubert v. Merrell Dow Pharmaceuticals, Inc., on Expert Testimony: With Applications to Securities Litigation, Fla. B.J. 36, 41 (March, 1999).
vi Brim, 695 So. 2d at 271-272.
vii Frye, 293 F. at 1014
viii Brim, 695 So. 2d at 272.
ix Ramirez v. State, 651 So. 2d 1164, 1167 (Fla. 1995).
x Id. at 1167.
xi Id. at 1167-1168.
xii Id. at 1168.
xv Brim, 695 So. 2d at 274.
xvi Marsh v. Vaylou, 977 So. 2d 543, 548 (Fla. 2007).
xviii 1West’s Fla. Prac. Series Evidence § 702.1 (2013).
xix Daubert, 509 U.S. at 587-588.
xx Id. at 590.
xxi Id. at 596-597.
xxii Id. at 593-595.
xxiii Id. at 593.
xxiv Id. at 590, 593.
xxv Id. at 593-594.
xxvi Id. at 593-594.
xxvii Id. at 594.
xxviii Id. at 595.
xxix General Electric v. Joiner, 522 U.S. 136, 139 (1997).
xxx Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 157 (1999).
xxxii Brim, 695 So. 2d at 271; Daubert, 509 U.S. at 589.
xxxiii Edward K. Cheng supra n.4 at 474; Kumho, 526 U.S. at 157, 159 (Scalia, concurring).
xxxiv Manuel Real, Daubert-A Judge’s View-A Reprise, SK042 ALI-ABA 447, 470 (2005).
xxxv Ramirez, 651 So. 2d at 1168; Bourjaily v. United States, 483 U.S. 171, 171-176 (1987).
xxxvi Berry v. CSX Transp., Inc., 709 So. 2d 552, 557 n. 4 (Fla. 1st DCA 1998); Julia Luyster, Frye and Daubert Challenges: Unreliable Options vs. Unreliable Science, 26 No. 2 Trial Advoc. Q. 29 (Spring 2007).
xxxvii Berry, 709 So. 2d at 555.
xxxix Id. at n. 4.
xli Daubert, 508 U.S. at 601 (Rehnquist and Stevens concurring in part and dissenting in part).
xlii Berry, 709 So. 2d at n. 4.
xliii Daubert, 509 U.S. at 597.
xliv Id. at 590.
xlv Marsh, 977 So. 2d at 548 (medical causation testimony is standard witness testimony).
xlvi Brim, 695 So. 2d at 271-272.
xlviii Kumho Tire, 526 U.S. at 157.
xlix Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998).
l Kennedy v. Collagen Corp., 161 F.3d 1226, 1230 (9th Cir. 1998).
li Stephen Mahle, Expert Testimony in Florida Courts, http://www.daubertontheweb.com/florida_overview.htm (accessed June 18, 2013).
lii Frye, 293 F. at at 1014.
liii Daubert, 509 U.S. at 593-595.
liv Mahle, supra n. 5, at 41.
lv Id.; See Williams v. State, 710 So. 2d 24 at 44 (Fla. 3d DCA 1998); Berry v. CSX Transportation, Inc., 709 So. 2d 552 at 569 (Fla. 1st DCA 1998) (Cope concurring in part and dissenting in part).
lvi Mahle, supra n. 5, at 39.
lvii Id.; See Brim, 695, So. 2d at 270 citing Committee on DNA Forensic Science & Commission on DNA Forensic Science, National Academy of Sciences, The Evaluation of Forensic DNA Evidence, (Prepublication copy) at 6-24-6-26 (1996); Berry, 709 So. 2d at 556 citing David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony, § 1-3.3 (1997)(herein Modern Scientific Evidence).
lviii Fla. Stat § 90.702(1) (2013).
lix 28 U.S.C.A. §702 (2011) (See Comment to Year 2000 Amendment).
lxi Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11, 22 (1st Cir. 2011); Lee Gunn & Samuel Harden, Daubert Enters Florida Courtrooms, FJA Annual Convention (June 13-14 2013, St. Petersburg, FL).
lxiii Marsh v. Valyou, 977 So. 2d 543 at 549 (Fla. 2007).
lxiv Id. at 549-550 citing Rodriguez v. Feinstein, 793 So. 2d 1057, 1060 (Fla. 3d DCA 2001).