My new article on the changes to our expert witness rules, which impact all family law and divorce cases, is now available at the Family Law Section website. Daubert House not only discusses Florida’s changes to the expert witness rules, it mixes in references to National Lampoon’s Animal House for reasons those familiar with the Florida Supreme Court’s recent opinion will understand.

family law daubert

Were the Changes Even Constitutional?

In amending the Florida Evidence Code, the Legislature bound Florida courts to the Daubert standard for the admission of expert testimony and opinions. However, those changes were short lived. The Florida Bar Board of Governors and several Florida Bar committees strongly opposed the changes.

Up until recently, there was also the controversy lingering about the constitutionality of what the Florida Legislature did. While the Legislature can enact substantive law, only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

In response, the Florida Supreme Court declined to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised. The Florida Supreme Court instead left it for a proper case or controversy.

That case was DeLisle v. Crane. The Florida Supreme Court found that the Legislative amendments to Section 90.702 were not substantive because they did not “create, define, or regulate a right”, but was procedural rulemaking instead.

Additionally, the Court held that the Daubert amendment conflicted with the exiting Frye rule because Frye and Daubert were competing methods to determine the reliability of expert testimony. Once again, Frye was the appropriate test in Florida courts. Unknown to everyone, Frye was on “Double Secret Probation.”

Faber College

After our new governor was sworn into office, he appointed three new Florida Supreme Court justices. This year, the Florida Supreme Court, without re-addressing the correctness of its own ruling in DeLisle, chose to recede from its prior decision not to adopt the Legislature’s Daubert amendments.

The dissent, made reference to the movie Animal House:“Like the little-known codicil in the Faber College constitution . . .” in objecting to the manner in which the majority of the Florida Supreme Court re-adopted Daubert.

Effective immediately, the Florida Supreme Court adopted the Legislatures’ 2013 amendments to section 90.702 as procedural rules of evidence, and adopted the amendment to section 90.704 to the extent it is procedural.

The article is available on the Florida Bar’s Family Law Section website here.