Florida Supreme Court Rejects Daubert and Same Specialty Amendment

February 17, 2017

On Thursday, February 16, 2017, the Florida Supreme Court rejected the 2013 changes to the Florida Evidence Code and  Medical Malpractice Section 766.102 pertaining to the standards of admissibility for scientific  expert testimony generally as well as the required qualifications for experts in medical malpractice cases (to the extent the statutory changes are “procedural”). The court essentially rejected the Legislature’s effort to align Florida admissibility standards with federal court standards (Daubert) over concerns that doing so would undermine the right to a jury trial and inhibit access to the courts, and it rejected the change to section 766.102 that required testimony by a provider of the same, rather than just a similar, specialty as the defendant. 

Because the judiciary cannot legislate, it could not reject the substantive aspects of the Legislative changes, but it could (and did) reject the changes  “to the extent they are procedural.”  Thus, challenges to expert witnesses in the future in Florida state courts will be litigated first on whether or not the challenge is procedural. If so, then the Florida standard (Frye) will be applied and the same specialty requirement rejected.  However, if the trial court finds that the statutory changes were substantive, then the Daubert challenge and same specialty requirement should apply. 

The Supreme Court pointed out that since the changes to Chapter 766 were never adopted by the Supreme Court as changes to rules of evidence (and arguably outside of the jurisdiction of this ruling) and that 766.102(14) affords trial judges the authority to disqualify experts for other reasons,  we are unlikely to see disqualifications on the basis of same specialty requirement violations.  

For more information related to this topic, contact James Evangelista at Bush Ross at jevangelista@bushross.com or (813) 204-6416.

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