I recently published an article about Daubert. In amending the Florida Evidence Code, the Legislature has tied Florida courts to the Daubert standard used in the Federal courts for the admission of expert testimony and opinions.
Although the amendment became effective in 2013, the changes to the law are still so new, there are less than a handful of appellate decisions which have reviewed the amendments.
A Constitutional issue has arisen. The Legislature can enact substantive law, but 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.
The Board of Governors, at its December 4 meeting in Naples, adopted the recommendation by the Code and Rules of Evidence Committee. They are urging the Supreme Court to not adopt the Daubert amendment to the Evidence Code.
The vote by the Code and Rules of Evidence Committee marks one of the few times it has recommended that a legislative enactment to the evidence code not be adopted.
When the committee does not recommend that action, it is generally because it believes the Legislature has crossed the boundary from substantive to procedural issues.
The next scheduled three-year cycle report is due to the Florida Supreme Court by February 1, 2016.
The article is available on the Florida Bar Family Law Section website here.