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Test to Admit Expert Testimony in Trial Changes Again


There is the perception that any time you use an expert witness in an injury trial (or any other kind of case), whatever the expert says, the jury gets to hear and consider. After all, the expert is an expert, right? In practice, it’s not that clear.

The Different Expert Witness Standards

A judge must deem what an expert says as admissible before a jury can even hear an expert’s testimony. There have long been two competing standards that courts use to determine whether expert testimony is admissible.

The first standard is the Frye standard. This standard is very lenient and tends to favor new or innovative scientific ideas. As long as the methods used by the expert in coming to his or her opinion are generally accepted in the scientific community, the testimony will be allowed to be heard by the jury.

The other standard is known as Daubert. The Daubert standard is tougher, with more to prove to get testimony admitted. It tends to exclude novel or newer scientific ideas. Under Daubert, a party must show that its expert used enough data, and that the data he or she used is reliable (or comes from a reliable source) using accepted and reliable testing methods. The expert’s findings must be properly applied to the facts of the case. The majority of states, and federal courts, use Daubert.

Florida Bounces Back and Forth

Florida long used the Frye standard. However, the Florida legislature in 2013 changed the standard to Daubert. The problem was because of separation of powers, only courts could change the standard, not the legislature. As such, many courts, including the Florida Supreme Court in 2018, ignored the legislature’s change, and stuck with Frye.

Recently the Florida Supreme Court reversed itself again, this time declaring that the standard to admit evidence will now be Daubert. By the court doing this on its own, without the legislature the separation of powers issue is not a concern, because the legislature has nothing to do with the change.

Why the Standard Changed

This abrupt change back to Daubert just months after adopting Frye, is likely because of the new governor’s appointments of new justices to the Florida Supreme Court after the retirement of some of the justices that ruled on the prior case.

The court held that using the Daubert standard brought it in line with other states, and the federal courts, and noted the “benefits” of using the more stringent Daubert standard. Although Daubert could potentially lead to more litigants’ expert testimony being excluded under the tougher standard, the court did not find that this was not an unconstitutional restriction on a party’s right to a trial or to a jury.

Make sure that you are ready to take your injury case to court if needed. Contact the Miami personal injury attorneys at Jacobs Legal today if you are injured in a slip and fall or a car accident.


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