While everyone else in Florida was gearing up for the Labor Day holiday (or preparing for the arrival of Tropical Storm Hermine), the Florida Supreme Court on Thursday heard oral argument on an issue that will affect virtually every trial lawyer in the state: the standard that Florida judges should apply when deciding to admit expert testimony.

A quick history lesson: The Frye test for admissibility of novel scientific testimony—requiring that the method used be generally accepted by the relevant members of the particular scientific field—was first articulated by the District of Columbia Court of Appeals in 1923.[1] Federal Rule of Evidence 702 was later enacted, and in 1993 the United States Supreme Court in its landmark Daubert decision[2] unanimously held that the common law Frye standard did not survive the enactment of Rule 702.  The rule was amended in 2000 to reflect the holdings of Daubert and two other United States Supreme Court decisions.[3] After the federal courts discarded the Frye test and began following the revised rule many states did too, but not Florida. In fact, by 2010 Florida was one of less than fifteen states that continued to apply the Frye test.

Displeased that the Florida Supreme Court has continued to apply Frye, Florida’s legislature took action. In 2013, it amended the Evidence Code to require judges to apply the federal standard: expert testimony must be the product of reliable principles and methods and the expert must have reliably applied the principles and methods to the facts of the case.[4] Of course, the legislature makes substantive law while the Florida Supreme Court makes rules for the practice and procedure in its courts. Those that support the Frye test—who assert that the Daubert standard too often leads to costly mini-trials over expert testimony—lobbied the Code and Rule of Evidence Committee of The Florida Bar, and in a 16-14 vote the committee recommended that the Florida Supreme Court not adopt the legislature’s amendment. The Florida Bar Board of Governors later approved the committee’s position by a 33-9 margin. The committee then petitioned the Florida Supreme Court, arguing that the admissibility of expert opinion evidence is a matter of procedure subject only to the Court’s authority. In other words, the legislature’s 2013 law was unconstitutional and should not be adopted. The Court took up that issue and others at last week’s oral argument and a decision is only months away.

Whatever the outcome, the Court’s decision will be momentous and likely a point of contention for years to come. Take the time to learn where the battle lines have been drawn and how the Court’s ruling might impact your practice. A good primer for understanding the controversy is The Florida Bar’s Daubert / Frye page.

[1] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
[2] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[3] General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
[4] See § 90.702, Florida Statutes (2014).

Michael Lockamy is a partner at the Bedell Firm in Jacksonville, Florida and represents the Fourth Circuit on the Young Lawyers Division Board of Governors.