Thursday, October 30th, 2014

Scott-O-Meter

Adopt the Daubert standard on scientific knowledge


"Rick Scott supports the adoption of the Daubert standard to be used in the state of Florida. Forty of fifty states have adopted the more modern Daubert standard, by which evidence based on innovative or unusual scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid."


Updates

Scott signs bill for a stricter threshold for scientific evidence in court

Gov. Rick Scott achieved part of his goal of tort reform by getting the Legislature to approve a change in how scientific evidence is admitted in court. In April, the House passed  HB 7015 75-42 and the Senate passed it 30-9.

Scott wanted to adopt what is commonly called the "Daubert” standard for admitting expert scientific testimony. The Daubert standard -- named after a 1993 U.S. Supreme Court decision in the case of Daubert v. Merrell Dow Pharmaceuticals -- asks judges to more closely scrutinize expert testimony before admitting the testimony into a trial.

Florida currently uses something called the "Frye” standard -- another standard for admitting expert scientific testimony that resulted from a 1923 Supreme Court case.

The Daubert standard creates what most believe is a more rigorous threshold for admitting scientific evidence. Therefore, it is often considered more pro-defendant.

The Daubert standard will require the court to determine if the testimony is based upon sufficient facts or data;  the testimony is the product of reliable principles and methods; and  the witness has applied the principles and methods reliably to the facts of the case.

The Florida Chamber of Commerce backed the bill.

The Florida Prosecuting Attorneys Association argued that the bill would increase their workload and require a larger use of expert witness and court hearing time. It estimated an increased cost of $1.1 million, according to legislative staff analysis of the bill. The Florida Public Defender Association predicted an insignificant fiscal impact.

On June 4, Scott signed HB 7015. We rate this Promise Kept.

Sources:

Florida House, House Bill 7015 Expert testimony, Ordered engrossed April 26, 2013

Florida Chamber of Commerce press release, "Florida Chamber"s Coalition for legal reform urges lawmakers to adopt Daubert standard,” April 8, 2013

Expert witness guru blog, "Florida Legislature adopts Daubert standard for expert testimony,” April 29, 2013

Scientific expert testimony bill dies in the Senate

The end of the 2011 legislative session came on May 7, 2011, without the Florida Senate taking up a proposal to change the standard by which judges can admit expert scientific testimony.

Gov. Rick Scott wanted to adopt what is commonly called the "Daubert" standard for admitting expert scientific testimony. The Daubert standard -- named after a 1993 U.S. Supreme Court decision in the case of Daubert v. Merrell Dow Pharmaceuticals -- asks judges to more closely scrutinize expert testimony before admitting the testimony into a trial.

The state currently uses something called the "Frye" standard -- another standard for admitting expert scientific testimony that resulted from a 1923 Supreme Court case.

A bill passed the House on May 2 to make the change, but one did not make it to the Senate floor. That means the proposal cannot be taken up until next year. So we rate this promise Stalled.

Sources:

SB 822, accessed May 7, 2011

Change in expert testimony rules approved by House, fate unclear in Senate

Florida Gov. Rick Scott's promise to change the standard in which courts consider expert scientific testimony passed the Florida House of Repsentatives on May 2, 2011, but it's unclear whether the measure will be taken up in the Senate.

Scott wants Florida to adopt what is commonly called the "Daubert" standard for admitting expert scientific testimony. The Daubert standard -- named after a 1993 U.S. Supreme Court decision in the case of Daubert v. Merrell Dow Pharmaceuticals -- asks judges to more closely scrutinize expert testimony before admitting the testimony into a trial.

The state currently uses something called the "Frye" standard -- another standard for admitting expert scientific testimony that resulted from a 1923 Supreme Court case.

Republican House sponsor Rep. Larry Metz of Eustis said during floor debate that the change will put Florida in line with the majority of states, and said it will better prevent juries from hearing "junk science."

The Daubert standard creates what most believe is a more rigorous threshold for admitting scientific evidence and therefore, it is often considered more pro-defendant. Metz said the different burden will help create a better climate for business in the state. The Daubert test provides that an expert may testify or evidence may be introduced if the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts.

The bill, HB 391, passed the House 83-33.

But the measure must still pass the Senate. There, the bill's prospects are uncertain. The Senate version, SB 822, has been considered by only one Senate committee and technically is awaiting action in the Senate Budget Committee -- which is not scheduled to meet again this session. The bill or its provisions could still be brought to the floor, however, or tacked on to another piece of legislation.

We'll be watching. This promise remains In the Works.

Sources:

Florida House of Representatives, floor debate on HB 391, May 2, 2011

Tort reform proposal alive in both House and Senate

As part of a package of tort reform proposals, Florida Gov. Rick Scott promised during his campaign to change the standard in which courts consider expert scientific testimony.

Scott argued during the campaign that the state should adopt what is called the "Daubert" standard for admitting expert scientific testimony. The "Daubert" standard -- named after a 1993 U.S. Supreme Court decision in the case of Daubert v. Merrell Dow Pharmaceuticals -- asks judges to more closely scrutinize expert testimony before admitting the testimony into a trial.

Currently the state uses something called the "Frye" standard -- another standard for admitting expert scientific testimony that resulted from a 1923 Supreme Court case.

"Florida is one of only a handful of states to use an antiquated, lenient standard for the admission of evidence at a trial, dating back to 1923," his campaign said as part of his platform for tort reform. "Rick Scott supports the adoption of the Daubert standard to be used in the state of Florida. Forty of fifty states have adopted the more modern Daubert standard, by which evidence based on innovative or unusual scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid."

The Frye standard creates a general acceptance test for admitting expert scientific evidence. To meet the standard, scientific evidence must be generally accepted by a meaningful portion of the appropriate scientific community. The standard came from a 1923 court case in which the courts ruled the results of a lie detector test inadmissible because the technology was not generally accepted by the scientific community.

The Daubert standard creates what most believe is a more rigorous threshold for admitting scientific evidence. Therefore, it is often considered more pro-defendant.

The Daubert test provides that an expert may testify or evidence may be introduced if the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts.

The new standard, in theory, puts more responsibility on a judge. The old standard relied more heavily on the scientific community.

As Scott wanted, bills changing the expert testimony standard are now being considered in both the House and the Senate.

HB 391 and SB 822 would replace the Frye standard with the Daubert standard. The House version has moved past committees and is awaiting action by the full House. The Senate bill is still in the committee process.

The bill's passage is not a slam dunk.

According to a staff analysis, the change in standard to admit expert opinions in Florida courts may have an impact on the number of pre-trial hearings needed, and may require additional staff time for prosecutors in criminal proceedings. The staff analysis also says that the Florida Supreme Court could refuse to adopt the legislative changes as part of its rules.

For now, we rate this promise In the Works.

Sources:

Rick Scott, plan for insurance and tort reform, accessed April 13, 2011

HB 391, accessed April 13, 2011

SB 822, accessed April 13, 2011

SB 822 staff analysis, accessed April 13, 2011

Edward K. Cheng and Albert H. Yoon, "Does Frye or Daubert Matter?," March 18, 2005