Nathan Nason, Partner, Nason Yeager Gerson Harris & Fumero, Palm Beach Gardens..

On May 23, the Florida Supreme Court announced that the Daubert standard would be the new evidentiary standard to be applied for admissibility of expert testimony. In doing so, the new court reversed the ruling of a prior decision of the court which had adhered to the Fryestandard. While this new standard will change the rules governing admissibility of expert testimony, the real question is whether this ruling is a harbinger of more significant changes to come.

First things first: what’s the difference? Under Frye, expert testimony was allowed to go to the jury where the methodology being employed by the expert was recognized generally as being scientifically acceptable. Under Frye, whether that generally accepted methodology is properly applied was a question for the jury. Under Daubert, the trial court assumes more of a gatekeeper role. It must examine both the methodology and whether the application of that methodology is appropriate.

Will it make a difference? In most garden variety commercial cases, it won’t. But in other cases, the difference may be dramatic, particularly in the fields of medical malpractice, toxic torts and claims whose viability depends upon expert opinion on causation. For example, in Weisgram v. Mosley, 528 U.S. 440 (2000), a post-Daubert decision, the U.S. Supreme Court rejected expert testimony of an expert who had opined that a defective water heater has caused a fire. While this testimony might have been admissible under Frye, it failed the more exacting Daubert test.  As a result, the court let stand the U.S. Court of Appeals for the Eighth Circuit opinion which remanded the case to the trial court for the entry of a verdict for the heater manufacturer. Daubert will also likely change how expert opinions in securities and antitrust are prepared, analyzed and litigated, with the end result being greater scrutiny on expert opinions.

And, there is another result: henceforth there will no longer be a dichotomy between how expert testimony is evaluated in state and federal courts in Florida. Prior to this new Florida Supreme Court decision, the outcome of a case could have turned on whether it was litigated in state or federal court, and federal courts are courts of limited jurisdiction. Adopting Daubert in state court litigation both eliminates this dichotomy and creates a more predictable legal environment.

For these reasons, Daubert has generally been embraced by the business community, as it is perceived as a more business-friendly standard. And it may be just that. Proponents of the Daubert standard claim that it is a step in the right direction toward lowering insurance rates and creating a more competitive business climate which could attract new business ventures to Florida. If nothing else, the perception of a more friendly legal environment in Florida for business could be used as an impetus to increase business relocations to Florida, particularly given recent changes to the federal income tax code which have limited the deduction available for state-imposed income taxes, which Florida does not impose.

And this brings us to the heart of the issue:

Is this change just a blip on the radar screen, or does it signal a more fundamental change in Florida’s legal landscape? When the Florida Supreme Court chose Frye over Daubert in 2018, it was a much different court. Since then, Gov. Ron DeSantis has appointed three new Supreme Court justices, all of whom voted to adopt Daubert in the May 23 decision. When this very matter was before the Supreme Court a year ago, a narrow majority of justices rejected Daubert and adhered to Frye, in the face of the legislature’s directive to the contrary. Similarly, in 2017, a sharply divided Florida Supreme Court struck down as unconstitutional the Florida legislature’s attempt to cap noneconomic damages in medical malpractice cases. While the jury may be out as to the degree of change which this decision signals, one thing seems certain: change is coming with this newly constituted court.

Nathan E. “Nat” Nason is a shareholder at Nason, Yeager, Gerson, Harris & Fumero in Palm Beach Gardens. He has practiced complex commercial litigation for over 25 years in South Florida and developed substantial environmental practices.