Trouble With Florida’s New Expert Witness Rule

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, December 27, 2013. Divorce trials increasingly rely on expert psychologist testimony for custody recommendations and forensic accountants for financial opinions. The rule on using experts recently changed. Is the new law substantive and constitutional, or procedural and unconstitutional? The Florida Supreme Court may have just tipped its hand. An article I wrote on expert witness testimony was just published in the Commentator, discussed the constitutional controversy, but left up in the air the Florida Supreme Court’s thinking because it was unknown. However, last week, the Florida Supreme Court refused to adopt a state rule that creates restrictions on out of state doctors who can testify during medical malpractice trials. The law stated:

If a physician or a dentist is the party against whom expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed or possess a valid expert witness certificate.

The Florida Bar Code and Rules of Evidence Committee voted to recommend adopting the statute. However, the Board of Governors voted to recommend rejecting the proposal because it was unconstitutional, and would chill the ability to obtain expert witnesses. The Florida Supreme Court agreed with the Board of Governors, and held:

After hearing oral argument and carefully considering the Committee’s recommendation . . . we decline to follow this recommendation due to the concerns raised. Accordingly, the Court declines to adopt the legislative changes to the Code or newly created section 766.102(12), Florida Statutes, to the extent they are procedural.

The Supreme Court vote was 8-1. The Florida Supreme Court’s order can be read here.