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How To Effectively Attack & Defend Expert Testimony: Explanation Of Daubert & The Frye Standard – Blog 2 Of 9

How to Effectively Attack & Defend Expert Testimony: Explanation of Daubert & The Frye Standard – Blog 2 of 9

Post Series: How to Effectively Attack & Defend Expert Testimony
  1. Florida’s Adoption of the Daubert Standard
    1. Explanation of the Daubert Standard

Effective July 1, 2013, the Florida Legislature amended Florida Statute

  • 90.702 to conform to Rule 702 of the Federal Rules of Evidence. Commonly known as the Daubert Standard, §90.702 now states:
  • 90.702. Testimony by experts. – If scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify about it in the form of an opinion or otherwise, if:
  • The testimony is based upon sufficient facts or data;
  • The testimony is the product of reliable principles and methods;
  • The witness has applied the principles and methods reliably to the facts of the

The Daubert Standard differs from the previous version of §90.702 of the Florida

Statutes which was commonly known as the Frye[1] Standard and read as follows:

  • 90.702. Testimony by experts. – If scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify about it in the form of an opinion; however, the opinion is admissible only if it could be applied to evidence at trial.

Since the United States Supreme Court first issued its opinion in Daubert v. Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), there has been an evolving debate over which standard, the Daubert or Frye Standard, is more restrictive with respect to admission of expert testimony.  The Daubert court actually criticized what it referred to as the rigid “general acceptance” scientific standard for admissibility of expert testimony required under Frye as being at odds with the more “liberal thrust” of the Federal Rules of Evidence and their “general approach of relaxing the traditional barriers to opinion testimony (citations omitted).”  Id. at 589.  In fact, when the Florida Supreme Court originally rejected the Daubert Standard, it stated that “despite the Federal adoption of a more lenient standard in Daubert…, we have maintained the higher standard of reliability as dictated by Frye.”  Brim v. State, 695 So2d 268, 271-72 (Fla. 1997).   Notwithstanding, the question remains as to why most judges, attorneys and experts in Florida perceive the recent adoption of the Daubert Standard in state courts as increasing the requirements for admission of expert testimony.

The answer may be found in Florida’s “pure opinion” exception to the Frye Standard.  Under the pure opinion exception, an expert’s personal experience and training was potentially sufficient to admit expert testimony without satisfying Frye’s requirement of “general acceptance” in the relevant community for scientific or technical analysis.  Marsh v. Valyou, 977 So2d. 543 (Fla. 2007).  While both Frye and Daubert are based on a “reliability” requirement for admission of expert testimony, under the pure opinion exception to Frye, reliability was satisfied if the expert was otherwise qualified by knowledge, skill, experience, training or education in a particular subject matter and provided an opinion relevant to the subject matter of that expertise.  Pure opinion testimony under Florida’s Frye Standard often resulted in a battle of the experts based simply on their qualifications and experience, but not necessarily on objectively verifiable data or facts.  This created a perception among some parties, including at times in construction cases, that a jury might determine liability or the lack thereof simply based on the testimony of a credentialed expert willing to provide an opinion regardless of the rigor or logic of a factually based chain of underlying reasoning.

Notwithstanding the divergent characterizations of Frye and Daubert and the debate over their propriety for the admissibility of expert testimony, there is no question the Florida Legislature viewed Daubert as the stricter standard and sought to limit admissibility of expert testimony not sufficiently grounded upon underlying facts or data.  The preamble to the enacting legislation expressly provides that the Florida Legislature intended to prohibit pure opinion testimony.  Subsequent case law has confirmed that the amendment of §90.702 eliminated “pure opinion” testimony in Florida.  Perez v. Bell South Telecomm., Inc., 138 So2d. 492, 497 (Fla. 3rd DCA 2014).  In adopting the Daubert Standard, the legislature’s specific intent was to “tighten the rules for admissibility of expert testimony.”  Id. See also Giaimo v. Florida Autosport, Inc., 154 So3d 385, 387-88 (Fla. 1st DCA 2014); Baan v. Columbia County, 2015 FLA. App. Lexis 18340 (Fla. 1st DCA Dec. 2015).  The elimination of pure opinion testimony has been roundly criticized by some Plaintiffs lawyers, particularly the personal injury bar.  The Florida Bar Board of Governors has also recently voted to petition for reinstatement of the Frye Standard and with it the pure opinion exception.

For now, a more restrictive Daubert Standard that does not allow for pure opinion testimony governs the admissibility of expert testimony in Florida state courts.  So, how does the trial court go about determining if proffered expert testimony adheres to the requirements of  §90.702 that: 1) the testimony is based upon sufficient facts or data; 2) the testimony is the product of reliable principles and methods; and 3) the witness has applied the principles and methods reliably to the facts of the case? First, understand that the trial court clearly acts as gatekeeper to the admissibility of expert testimony.  Trial attorneys should expect Florida courts to take a more active role in determining whether to allow expert testimony.  Second, attorneys in Florida can look to Federal cases applying the Daubert standard for guidance as the case law in Florida continues to develop.

The U.S. Supreme Court, in Daubert, set out the following factors for the trial court’s consideration: (1) whether the expert theory or technique can or has been tested; (2) whether the expert theory or technique has been subject to peer review or publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique’s operation; and (4) whether the theory or technique enjoys “general acceptance” within a “relevant scientific community,” similar to the former Frye standard.   509 U.S. at 593.  The Daubert court made clear that these factors were not exclusive, that not all of the factors must be met to allow testimony in a particular case, and cautioned that Federal courts must remain flexible in determining the admissibility of expert testimony.  Id.  The key to admissibility of expert testimony is that it be both reliable and relevant and to the extent appropriate based upon objectively verifiable facts or data.

A number of issues can arise in construction cases where the expert theory or technique has been tested over time, has been subjected to peer review, and is recognized as generally accepted in the applicable technical community.  For example, there are a host of published and generally accepted standards for forensic testing such as those set out by the American Society for Testing Materials.  The ASTM E-1105 Standard Test Method for Field Determination of Water Penetration of Installed Exterior Windows, Skylights, Doors, and Curtain Walls, by Uniform or Cyclic Static Air Pressure Difference enjoys wide acceptance as a test for determining water intrusion through glazing systems.  Similarly, the ASTM E-2128 Standard Guide for Evaluating Water Leakage of Building Walls sets forth generally accepted procedures for forensic investigation of building envelopes, including both wall and glazing systems.  However, even many of these recognized testing methods and procedures do not specify adequate sample sizes from which to extrapolate conclusions as to an entire structure.  That is left to engineering judgment.

There are also many areas in the construction process that may be viewed as requiring technical knowledge or experience as opposed to reliance on established testing methodologies or scientific inquiry.  For example, standard of care opinions or damage calculations may rely more upon experience and technological knowledge than the performance of any particular forensic testing method.  How does Daubert address admissibility or preclusion of expert testimony in such instances as these?

            Guidance can be found in the Supreme Court’s opinion in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and succeeding Federal cases.  In Kumho, the U.S. Supreme Court reaffirmed the role of the trial court as gatekeeper for determining whether expert testimony is both sufficiently relevant and reliable for admission.  The Supreme Court in Kumho expressly recognized the application of the Daubert analysis to not only scientific expert testimony, but also to expert testimony that is based on technical and other specialized knowledge.  In evaluating technical expert testimony, like scientific expert testimony, Kumho held that the trial court may consider one or more of the specific Daubert factors to determine sufficient reliability and relevance for admissibility.  However, Kumho held that with respect to technical expert testimony, as opposed to scientific testimony, it is also appropriate for the trial judge to determine whether the expert used the same intellectual rigor in formulating the opinion that characterizes the practice of the expert in the relevant field. 526 U.S. at 152.  The trial court may also examine whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion or whether the gap between any underlying data and the ultimate opinion is too great.  See General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)(nothing requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert).  Whether the expert adequately accounted for obvious alternative explanations is also relevant.  See Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1237-38 (10th Cir. 2004)(An expert must show that other causes are improbable when conducting a differential analysis, but need not categorically exclude each and every possible alternative cause).  The trial court’s evaluation should primarily focus on the validity and reliability of the testimony.  Kumho, 526 US at 157.  The ability to cross examine the underlying basis of the opinion is also critical under a Daubert analysis; Daubert was not intended to replace the role of vigorous cross examination of expert witnesses.  Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”)   The court or opposing counsel may not agree with the opinion, but if the opinion is one on which experts could reasonably differ, the opinion is reliably connected to the underlying facts and the witness is available for vigorous cross examination, the expert opinion is more likely to be admissible. 

[1] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

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