The Florida Legislature is currently in session and we are all anxiously waiting to see what changes are made to Florida’s insurance laws. But there is another important issue currently being considered that many non-lawyers are not aware of. This issue involves replacing Florida’s Frye test for the admissibility of expert witness testimony with the federal Daubert test.

In his post on February 6, 2012, In Federal Court, Judges Act As Gatekeepers In Deciding Whether To Admit Expert Testimony, my colleague, Shaun Marker explained how federal courts apply the Daubert test. Shaun cited Clena Investments, Inc. v. XL Specialty Insurance Company, where the court stated:

To resolve the challenge to the expert’s opinion testimony, the Court … conducts a “rigorous” three-part inquiry into whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

To date, the Florida Supreme Court has continually rejected the Daubert test and continues to mandate that the Frye test is used to determine whether expert testimony is admissible in Florida state courts. Marsh v. Valyou, 977 So.2d 543 (Fla. 2007). Under the Frye standard, scientific evidence can only be admitted if it has attained “general acceptance” in the relevant scientific community. Hayes v. State, 660 So.2d 257, 264–65 (Fla. 1995).

The biggest difference between the Daubert and Frye tests is the range of issues a judge must consider before ruling on the admissibility of expert testimony. The major area of contention lies in prong one of Daubert, which requires a judge to determine whether an expert is qualified to testify competently. Opponents of Daubert argue that the standard expects judges to decide whether theories, techniques, and data as applied to a specific situation can be trusted. Frye relies on the “general acceptance” of the particular scientific community to determine whether the theories, techniques, and data as applied are reliable. It appears to date, that Florida courts have felt judges should take this extra burden.