Alan J. Lazarus | Drinkler Biddle & Reath | July 1, 2019
The steady but sometimes slow adoption by the states of the Daubert standard for expert admissibility, and the accompanying recession of the Frye standard, is something of a coming of age for the national jurisprudence. Frye has become outmoded and anachronistic in an era of dizzying technological and scientific advancement ─ and riddled with exceptions. Daubert’s focus on reliability and fit incorporates the necessary flexibility, rigor, and judicial engagement to warily allow the expert wheat while turning away the chaff. The transition has played a pivotal role in fine-tuning the tort system in search of well-founded fact-finding and more rational adjudications.
But as we all know, a maturation process can be painful, halting, and fraught with challenges. That aptly describes the Florida experience in moving from Frye to Daubert.
The legal community took notice recently when the Florida Supreme Court at last, but rather abruptly, adopted the Daubert standard for admissibility of expert testimony. But many may be unaware of the full back story, a tale replete with starts and stops, victories and setbacks, and what might pass for intrigue in a litigator’s office.
Florida was historically a dedicated Frye state. Soon after the U.S. Supreme Court issued Daubert, rejecting the Frye rule in favor of a reliability and relevance test and imposing a rigorous gatekeeping obligation, the Florida Supreme Court first reacted to the decision in Flanagan v. State, 625 So.2d 827, 829 n.2 (Fla. 1993). The Court’s entire discussion (shorn of citations) was this:
We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions.
More thoughtful discussions and reaffirmations were later issued in Brim v. State, 695 So.2d 268 (Fla. 1997), Hadden v. State, 690 So.2d 573 (Fla. 1997) and Castillo v. E.I. DuPont de Nemours & Co., 864 So.2d 1264 (Fla. 2003). In Castillo, the Supreme Court interpreted the first prong of Daubert, scientific reliability (described as “scientific validity”), to be the equivalent of the Florida Frye test, but rejected the second prong, “fit,” as improperly evaluating the expert’s ultimate conclusion rather than the underlying science. That view is wrong, but it at least suggested that perhaps the distance between reliability gatekeeping and the Frye standard as recognized in Florida was not great.
Marsh – The Exception Swallows the Rule
The gulf widened considerably in 2007 when the Supreme Court decided Marsh v. Valyou, 977 So.2d 543 (Fla. 2007). As discussed below, Marsh prescribed a standard for expert testimony that could not be more dissimilar to Daubert. Whereas Daubert sets reliability as the sine qua non of admissibility and requires the trial judge to rigorously assess the reliability (and “fit”/relevance) of the testimony before admitting it, the Florida Supreme Court essentially immunized almost all scientific expert testimony in Florida courts from any meaningful scrutiny, as a practical matter. The Court did this by drastically enlarging the “pure opinion” exception to the Frye standard.
The theory behind the “pure opinion” exception is that where the expert’s opinion is based solely on expertise, rather than impenetrable “science,” the jury is capable of evaluating the testimony as it would that of any fact witness and protective gatekeeping is not necessary. Accordingly, Frye does not apply. Neither does any other special test of reliability.
In Marsh, the plaintiff’s expert testified that a series of car accidents had caused plaintiff to develop fibromyalgia. The trial court excluded the testimony under Frye as not based on generally accepted scientific principles – the scientific community had not reached any consensus as to whether trauma was capable of inducing fibromyalgia. The court of appeal affirmed, rejecting arguments that the testimony was pure opinion excepted from Frye and that Frye was satisfied. Meanwhile, another District Court of Appeal reached a contrary result in a similar case. The Supreme Court resolved the conflict, finding the testimony was (1) pure opinion not subject to Frye and (2) admissible under Frye in any event.
The pure opinion holding was marred by a prominent internal inconsistency. The Court held that medical causation opinions based on a physician’s review of the patient’s medical history, clinical physical examinations, their own experience, published research, and differential diagnosis is pure opinion testimony not subject to Frye. But in support, the Court cited court of appeal cases emphasizing that the exception applies only when the opinion “is based solely on the expert’s training and experience.”
The holding also eliminated any safeguards against junk science in the vast majority of cases. Even accepting the pure opinion exception’s premise – that an expert relying solely on background, training, and experience can be adequately “analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness,” and therefore need not be Frye-tested for general acceptance reliability – once the expert claims support in scientific research some form of reliability filter becomes necessary. Thus, without acknowledgment, Marsh substantially expanded the population of cases that would escape any reliability screening, of any type, by broadening “pure opinion” to include testimony relying in part on scientific research.
As to satisfying Frye, the Court decided, in dicta, that the existence of “numerous published articles and studies [that] recognize an association between trauma and fibromyalgia” sufficiently demonstrated the reliability of the underlying principle that trauma can cause fibromyalgia. The Court observed that “a lack of studies conclusively demonstrating a causal link”… “and calls for further research do not preclude admission”; nor does a lack of supporting epidemiology. But the Court ignored the fundamental difference between association and causation and the fundamental nature of a general causation analysis. None of the studies cited – presumably the research relied on by the expert to establish general causation – was a controlled study demonstrating a causal link. The Court’s dicta therefore diluted and distorted the “general acceptance” standard for those rare cases where Fryestill applies.
Two of the justices in the four-justice majority specially concurred, adding that they believed Frye had been superseded by Florida’s adoption of the Evidence Code and effectively replaced by a pure relevance standard. The three dissenters argued that the absence of general acceptance of the general causation premise – that trauma can cause fibromyalgia – precluded both sidestepping and satisfying Frye. Because general causation is a prerequisite for specific causation and a differential diagnosis analysis, a specific causation opinion built upon a disputed general causation premise cannot be deemed a pure opinion. Scientific research inevitably plays a role, and its reliability needs to be assessed. And the lack of consensus on general causation leaves Frye’s general acceptance requirement unsatisfied.
Neither plaintiffs’ attorneys nor the experts they hire are generally stupid, and it soon became apparent that after Marsh they could assure admissibility simply by having the expert raise his/her right hand and say they were applying their expertise, even if their analysis also relied on scientific research.