Tag: Florida Daubert divorce

New Article: Daubert House

Posted by Ron Kauffman on

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.

 

New Divorce Expert Witness Rule

Posted by Ron Kauffman on

Few people know that in 2013 Florida passed a law changing how divorce expert witnesses could testify in family law cases. Many people warned that the new law may be unconstitutional because of the way it passed, but waited for the Florida Supreme Court to decide. This week it did.

Divorce Expert

The Frye Pan

People rely on all sorts of expert witnesses in divorce and family law cases, maybe more than most areas of law. Routinely, people will come to trial with accountants, psychologists, and other experts in tow.

Since 1923 courts have relied on the Frye Rule, which states that expert opinion based on a scientific technique is only admissible where the technique is generally accepted as reliable in the scientific community.

In 1993, the U.S. Supreme Court adopted a new standard which requires trial judges to screen expert testimony for relevance and reliability. The “Daubert test” developed in three product liabilities cases. The plaintiffs tried to introduce expert testimony to prove products caused their damages. The U.S. Supreme Court ultimately tightened the rules for admitting expert testimony

Too Many Cooks in the Kitchen

In 2013, the Florida Legislature amended the Florida Evidence Code to start following the U.S. Supreme Court’s Daubert standard for the admission of expert testimony and the basis for an expert’s opinion.

I’ve written about the Constitutional problem with the way the legislature created the new law. When the legislature passes a law encroaching on courtroom practice and procedure, the laws are unconstitutional. However, the Legislature can enact substantive laws.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Evidence Code contains both substantive and procedural provisions, so there was a suspicion that the Legislature violated the separation of powers doctrine when it amended the code this way. At the time however, that issue has not been accepted by the Florida Supreme Court to date. The latest decision corrected that.

Frying Daubert

This week, the Florida Supreme Court weighed in on the new evidence law and found it unconstitutional. This latest ruling turns back the clock on the Florida Evidence Code.

First, the Supreme Court said that the 2013 amendment was not substantive law because it didn’t create, define, or regulate a right, and solely regulated the action of litigants in court proceedings.

Second, the evidence code amendment conflicted with a rule of this Court, namely, the Frye rule as modified in Florida cases, which the Legislature can’t repeal by simple majority.

Finally, the Florida Supreme Court said it was concerned that the evidence code changes limited access to courts by imposing an additional burden on the courts:

With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.

The Supreme Court opinion is available here.

 

Florida’s Expert Witness Crucible

Posted by Ron Kauffman on

Few people know that Florida passed a new law about expert witnesses a few years ago, which impacts divorce law. The Florida Supreme Court decided not to adopt the rule in its rule making process, waiting for a case in controversy instead. The case has arrived.

Florida’s Expert Witness Controversy

The Florida rule for expert witnesses was amended in 2013. There were some interesting things about the 2013 rule.

  1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rule making authority is the court’s job.
  2. The way the Rule came into being by the Legislature created a constitutional challenge to the rule down the road.
  3. The new rule forced Florida courts to abandon the 70-year old Frye test for admitting expert testimony.
  4. The new rule required Florida courts to apply the Daubert standard, which is the standard applied in federal courts, the U.S. Supreme Court, and a majority of states.
  5. The Florida Supreme Court has said it doesn’t favor the new rule.

I have written extensively about Florida’s problem with expert witnesses before, including the constitutional issues. The constitutional problems dealt with the way the law was passed.

Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.”

Given that the Evidence Code contains both substantive and procedural provisions, there was an open question whether the Legislature violated the separation of powers doctrine.

The Florida Supreme Court Case

As the Florida Bar News reports, when the Florida Supreme Court declined to adopt the legislative change to the expert witness rule, the panel said they wanted to address the issue in a case in conflict.

The court now has that case.

The Delisle case is a mesothelioma case in which the plaintiff argued he contracted the disease from smoking Kent cigarettes when they used asbestos in the filters, and from handling gaskets that contained asbestos when he worked at a paper mill.

The trial judge and the Fourth District Court of Appeal held – even though the Supreme Court had not passed on the Legislature’s amendment of the evidence code – the legislature’s expert witness rule must be presumed valid, meaning the Daubert standard should be used for expert witnesses.

The appellate court decided that under Daubert, the two experts should not have testified. The appellate opinion overturned the jury verdict and award Delisle had won in the trial court.

The Florida Supreme Court has not set a date for oral arguments.

The Florida Bar News article is here.

 

The Frye Test: Florida’s Newest Old Law

Posted by Ron Kauffman on

Few people know that Florida passed a new law about expert witnesses which impacts family law. I published an article giving a little history about the new Florida statute, along with a warning that it may be unconstitutional.

I have also blogged about this problem before. The possible Constitutional problems dealt with the way the law was passed. Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Bar Board of Governors voted to reject the new rule, and keep the old rule announced in Frye. The Board voted 33-9 to reject Daubert, the new rule, accepting the recommendation of the Bar’s Code and Rules of Evidence Committee.

Yesterday the Florida Supreme Court weighed in on the Amendment, and declined to adopt it. While the Court did not address the constitutionality of the statute or proposed rule, it ruled that “the fact that there may be “grave concerns about the constitutionality of the amendment” has been a basis previously for the Court not adopting an amendment to the Evidence Code to the extent it is procedural.”

“Accordingly, having heard oral argument and carefully considered the Committee’s recommendation and the numerous comments both submitted to the Committee and filed with the Court, we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy”

The Supreme Court opinion is available here.