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Florida’s Expert Witness Standards: Frye v. Daubert

February 20, 2013

Mentioned in earlier Courtroom Insight posts, California courts must apply the Daubert standard for admitting expert witness testimony. Florida may be yet another state to follow suit, trading the current Frye standard for admitting expert testimony for Daubert. Only 10 states adhere to the almost century-old Fry standard, and if a proposed bill is passed by the full House and the Senate, the number will whittle down to 9.

Frye v. Daubert:

Frye (named after a 1923 Supreme Court case) is a bit more narrow in standards for admitting expert witness testimony.

Expert witness testimony can only be admitted if it is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Daubert (named after a 1993 Supreme Court case) places the role of gatekeeper on the judge, who can admit expert testimony if s/he feels it is based on scientifically sound principles. A “pure opinion” section of the proposed bill will allow experts to give an opinion as opposed to a scientific or technical fact. The bill, proposed by Larry Metz, provides an outline to be applied by the judge before the expert witness pure opinion testimony can be admitted:

a) The testimony must be based upon sufficient facts or data,

b) the testimony must be the product of reliable principles and methods, and

c) the expert must be shown to have applied the principles and methods reliably to the facts of the case.


Con: The bill has met a fair share of opposition. Arguments against the bill from various trial lawyers, House Democrats and each of the state’s 20 elected state attorneys.

“The Supreme Court of Florida has twice, within the last decade, said that they wouldn’t adopt Daubert when given the opportunity because Frye was the more conservative and reliable standard for handling expert witnesses,” insists Buddy Jacobs, general counsel for the FPAA. “The Daubert standard would be more expensive and would create trials within trials.”

He says that, under the Daubert system, costs would skyrocket as defense attorneys would bring “experts testifying about experts testifying about experts,” while the state expends taxpayer dollars to produce more experts for rebuttal and to prosecute trials that are drawn out longer.

Pro: Supporters of the Daubert standard see it differently. Rather than raising costs by using more experts, the Daubert standard can actually reduce costs in some instances.

[Attorney William Large] points out that successful challenges to an expert witness can “effectively end” a litigation sooner than it would if an expert were given time to testify, particularly if that expert’s testimony is the only evidence a plaintiff has at his disposal.

Source: click here.


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