Application of Frye Test to Determine Admissibility of Expert

David Adelstein | Florida Construction Legal Updates | February 2, 2019

Florida went back to the Frye test/standard, instead of the Daubert test utilized in federal court, to determine the admissibility of expert testimony.  The Frye test is more favorable to plaintiffs because it applies when an expert renders an opinion based on new or novel scientific principles.  See D.R. Horton, Inc. v.  Heron’s Landing Condominium Ass’n of Jacksonville, Inc., 44 Fla.L.Weekly D109b (Fla. 1st DCA 2018) (“The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where the experts in the field widely share the view that the results are scientifically reliable as accurate. Stated differently, under Frye, the proponent of the evidence has the burden of establishing by a preponderance of the evidence with the general acceptance of the underlying scientific principles and methodology.  However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific principles.”). 

In D.R. Horton, Inc., a condominium association sued the developer and general contractor (same entity) for construction defects that included claims in negligence, violation of building code, and breach of statutory warranties.  The developer/general contractor moved in limine / to strike the association’s experts under, at the time, a Daubert analysis, but which became a Frye analysis during the pendency of the appeal.  The expert opined as to construction defects and damage and the appropriate repairs – really, no different than any construction defect dispute, from what it appeared. The trial court denied the motion and during trial the experts testified and a sizable damages judgment was entered against the developer/contractor prompting the appeal.  One issue on appeal was the admissibility of the expert’s opinion.  The appellate court noted that a Frye analysis is not necessary because the experts used a scientifically reliable and peer-reviewed methodology.  

A smart tactic, and I mean SMART tactic, that the association’s counsel seemed to utilize was to engage a third-party engineer to testify during a hearing that the methodology used by the association’s experts was industry standard methodology and generally accepted. Thus, the opinions were not based on new or novel scientific principles and the appellate court affirmed the trial court’s denial of the contractor/developer’s motion in limine.

Florida Decides Against Adopting Daubert

Rahul Gogineni | Subrogation Strategist | December 12, 2018

In Delisle v. Crane Co., 2018 Fla. LEXIS 1883, 43 Fla. L. Weekly S 459, the Supreme Court of Florida reaffirmed that the appropriate test for admissibility of an expert opinion about new or novel scientific evidence is the “Frye” test, not the “Daubert” test.

As result of developing mesothelioma, Richard Delisle sued sixteen defendants, including Crane Company (Crane) and R.J. Reynolds, claiming that each exposed him to asbestos, which is a leading cause of mesothelioma. At trial, Crane and R.J. Reynolds sought to preclude the expert opinions of Mr. Delisle’s causation experts. The trial denied the motions and the jury awarded Mr. Delisle $8 million.

Crane and R.J. Reynolds appealed the trial court’s decision to admit the plaintiff’s expert causation testimony. Upon review, the Fourth District Court of Appeal concluded that under Daubert, the trial court erred in admitting the plaintiff’s expert causation testimony. In addition, it remanded the case for a new trial against R.J. Reynolds and the entry of a directed verdict in favor of Crane.

The plaintiff appealed the appellate decision, arguing that in accordance with past precedent, the trial court correctly applied the Frye test rather than the Daubert test.

Daubert v. Frye

In the United States, all states apply a variation of either the “Frye” test or the “Daubert” test to determine the admissibility of expert opinions. Under Frye, expert testimony need only be generally accepted by a meaningful segment of the associated scientific community. Under Daubert, expert testimony is admissible if: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. In 2013, the Florida state legislature codified the requirement that courts apply the Daubert test in Section 90.702 of the Florida Statutes. Prior to this legislation, Florida courts applied the Frye test.

In Delisle, the court addressed whether the legislature had the authority to legislate the appropriate test for the admissibility of expert testimony. In citing to Article II, Section 3 and Article V, Section 2 of the Florida Constitution, the court held that the state legislature did not have the authority to pass legislation that, “determine[s] matters of [court] practice or procedure” through a mere majority vote.[1] It further held that the test for the admissibility of expert testimony is a procedural rule and, therefore, within the sole purview of the Judiciary. The court concluded by reaffirming “that Frye, not Daubert, is the appropriate test in Florida courts.” The court noted, however, that the Frye test is “inapplicable to the vast majority of cases because it applies only when experts render an option that is based on new or novel scientific techniques.” However, with respect to the medical causation testimony at issue, the court held that the trial court properly admitted the testimony because medical causation testimony is not new or novel, and not subject to a Frye analysis. This case serves as a good reminder that, prior to filing suit, subrogation practitioners should be aware of which test will apply to the admissibility of the testimony of the expert or experts involved in the case.

[1] It should be noted that the Florida Constitution does permit the repeal of a rule of the Court if the legislation is enacted by two-thirds votes of both houses of the legislature.

Florida Supreme Court Rebuffs Legislature’s Mandate to Adopt Daubert Standard

Clifford J. Zatz and William L. Anderson | Crowell & Moring LLP | October 22, 2018

Five years after the Florida legislature amended the state’s evidence code to incorporate the Daubert standard for admissibility of expert testimony, the Florida Supreme Court last week held the amendment unconstitutional. “With our decision today,” said the Court, “we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.” Florida now rejoins the minority of states that adhere to the “general acceptance” standard for expert testimonyEqually important for toxic tort defendants, the Court held that medical causation testimony, including the “every exposure” theory of mesothelioma causation, “is not new or novel and is not subject to Frye analysis.”

This year marks the 25th anniversary of the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, IncDaubert announced a new, “flexible” standard for the admissibility of scientific expert testimony, holding that the “general acceptance” test of Frye v. United States, had been displaced by the Federal Rules of Evidence. Since then, Daubert has been the test in the federal courts; its standard is now incorporated in the text of Federal Rule of Evidence 702.

But the Daubert – Frye debate has continued in the state courts. In 2016, in litigation alleging that cell phone radiation causes brain tumors, the District of Columbia finally abandoned Frye in favor of Rule 702. By legislation effective in August 2017, Missouri adopted the Daubert standard. In August of this year, the New Jersey Supreme Court required trial courts to consider the Daubert factors, but stopped short of declaring New Jersey a “Daubert jurisdiction,” declining to accept the entire body of Daubert case law. At last count, Daubert states outnumbered Frye states by a ratio of about 4:1. (Three states – Nevada, North Dakota, and Virginia – maintain their own unique standards for admissibility.) Over the years, studies have shown that Daubert leads more often than Frye to the exclusion of expert testimony, especially in favor of defendants.

Perhaps no state has grappled with the Daubert – Frye decision more than Florida. But the debate has come to an apparent end with the decision in DeLisle.

The path to the DeLisle decision was a long one, and reflected strong disagreement within the bar. After the legislature passed the so-called “Daubert Amendment” in 2013, the Florida Bar’s Code and Rules of Evidence Committee received comments on the Amendment. The comments were opposed to the Amendment by a count of 81-29. Accordingly, the Committee recommended, by a vote of 16-14, that the Supreme Court not adopt the Amendment. The Court then received comments of its own – this time 131-56 in favor of adopting Daubert. But in a February 16, 2017 per curiam order, the Court declined to adopt the Amendment, to the extent it was procedural, “due to the constitutional concerns raised, which must be left for a proper case or controversy.”

DeLisle was that “case or controversy.” The plaintiff in DeLisle alleged that he had contracted mesothelioma as a result of exposure to asbestos, both occupationally and in cigarette filters. The jury reached a verdict of $8 million in his favor. Reviewing the admission of the plaintiff’s expert testimony under Daubert, the Florida Fourth District Court of Appeal reversed, ordering a new trial for defendant R.J. Reynolds and entry of a directed verdict for defendant Crane. It held that the trial court had “failed to properly exercise its gatekeeping function” as to plaintiff’s causation experts.

The Supreme Court’s decision turned on whether the Daubert Amendment was properly characterized as substantive or procedural. The latter, it pointed out, could be enacted only by the Court itself, and repealed only by a supermajority of two thirds of each house of the legislature. Here, only the state Senate, not the House, had passed the bill by the requisite vote.

The majority opinion addressed the relative merits of Daubert and Frye only in a footnote, expressing concern that the amendment “would affect access to the courts…by imposing an additional burden on the courts.” A concurrence, however, offered a laundry list of objections to Daubert: any other approach “reflects a mistrust of the jury system”; it “has blocked more court access than it has enabled”; defendants “exploit” its requirements “as a sword against plaintiffs’ attorneys”; it applies more often than Frye”; it often requires expensive, multi-day hearings”; it increases the burdens on the parties.

Curiously, the majority described Frye as “the higher standard of reliability,” quoting its own decision in Brim v. State, yet also reaffirmed its view that “Frye is inapplicable to the vast majority of cases…” It ignored R.J. Reynolds’ argument that the DeLisle plaintiff’s expert testimony should be excluded under either standard. Without analysis and in a single paragraph, the Court held that “medical causation is not new or novel and is not subject to Frye analysis.” The Court thus effectively authorized “every exposure” testimony to reach the jury in Florida toxic tort cases without judicial screening.


Fla. Supreme Court Changes Standard for Admitting Expert Testimony Into Evidence

Ernest Wagner | Marice Wutscher LLP | October 25, 2018

The Supreme Court of Florida recently held that the Florida Legislature’s 2013 amendment of the Florida Rules of Evidence adopting the federal Daubert standard for admitting expert testimony was unconstitutional.

In so ruling, the Court returned Florida to the Frye standard for admitting expert testimony.

A copy of the opinion in Richard DeLisle v. Crane Co., et al. is available at: Link to Opinion.

The case involved the admissibility of expert testimony in a plaintiff’s personal injury action against several cigarette manufacturer defendants. The plaintiff used multiple experts to establish that smoking cigarettes caused his cancer. The trial court examined the admissibility of the expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the prevailing standard in Florida at the time of the trial.

As you may recall, in Daubert, the Supreme Court of the United States pronounced the standard to admit expert scientific testimony in federal court. In doing so, the Supreme Court announced that Federal Rules of Evidence 702 had superseded the prior standard to admit expert testimony announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The Frye Court had held that courts should admit “expert testimony deduced from a well-recognized scientific principle or discovery” that had “gained general acceptance in the particular field in which it belongs.”

Daubert receded from Frye holding that to qualify as admissible “scientific knowledge, an inference or assertion must be derived by the scientific method.” This shifted the focus from “general acceptance” to “principles and methodology, not on the conclusions that they generate.”

Following Daubert hearings, the trial court admitted the experts’ testimony and the plaintiff prevailed at trial.

The defendants appealed to Florida’s Fourth District Court of Appeal. The Fourth District reversed for a new trial as to one defendant and a directed verdict in favor of another defendant finding under Daubert that the trial court did not “properly exercise its gatekeeping function” for several of the experts.

The Supreme Court of Florida granted the plaintiff’s request for review.

The Court noted that it has worked with the Florida Legislature for almost 40 years “to enact and maintain codified rules of evidence.” In 1976 the Florida Legislature enacted the Florida Evidence Code. In 1979, the Court adopted the Evidence Code to the extent that it was procedural.

In doing so the Court found that any evidence rules that were substantive in nature were the Legislature’s responsibility, but that the Court had the sole responsibility for any procedural evidence rules or rules that govern “the parties, their counsel, and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution.”

In 2013, the Florida Legislature amended section 90.702, Florida Statutes to incorporate Daubert into the Florida Rules of Evidence and to cease applying the Frye standard to expert testimony. The Frye rule was the standard in Florida before the 2013 amendment.

The Court observed that in Article II, section 3, the Florida Constitution “prohibits one branch of government from exercising any of the powers of the other branches.”

Relevant here, Article V, section 2(a) gives the Court “the exclusive authority to ‘adopt rules for the practice and procedure in all courts.’ ” The Florida Constitution further provides that to repeal any court rule or decision, the Legislature must enact a law “by a two-thirds vote of the membership of each house of the legislature.” The Court concluded that the Legislature exceeded its authority because the vote to amend section 90.702 did not meet this requirement.

Moreover, the Court found that the 2013 amendment to section 90.702 was not substantive because it didn’t “create, define, or regulate a right. Instead, it is procedural because it solely regulates the action of litigants in court proceedings.”

Next, the Court noted that to declare the 2013 amendment to section 90.702 unconstitutional it also had to “conflict with a rule of this Court.” The Court had little trouble finding that its rulings adopting the Frye standard created a procedural rule because the Court may pronounce a rule in case law.

Thus, the Court found the 2013 amendment to section 90.702 unconstitutional and reaffirmed “that Frye,not Daubert, is the appropriate test in Florida courts.”

Applying Frye to this case, the Court noted that Frye does not apply “to the vast majority of cases because it only applies when experts render an opinion that is based on new or novel scientific techniques.” Against this backdrop, the trial court properly admitted the expert testimony because “medical causation testimony is not new or novel and is not subject to Frye analysis.”

Accordingly, the Court reversed the Fourth District’s ruling and remanded to the trial court to reinstate the judgment in favor of the plaintiff.

Cross-Examining the Expert Witness in a PL Case Part III: Challenging the Methodology

Rosario M. Vignali | Wilson Elser | January 16, 2018

In this third and last installment of our three-part series examining the type of deposition questioning that can derail your opponent’s expert and set up a successful Daubert challenge, we will look at Daubert’s insistence that the expert’s opinions be based on “reliable methodology” before opinions can be presented to the jury.

What exactly does a reliable methodology under Daubert mean? Essentially, it requires that the expert’s opinions be based on information gathered in the same manner as a scientist would undertake before he or she reaches a conclusion about the design of the product at issue. The distinction is between using sound scientific procedures as opposed to unsupported speculation to develop a hypothesis, analyze and test against it, and reach a conclusion.

Careful and targeted questioning of the expert often can establish that the expert’s opinions are indeed the product of nothing more than guesswork and conjecture – the very ipse dixit approach against which Daubert and its progeny warned and that the Federal Rules, when properly enforced by the court exercising its “gatekeeping” function, should disallow. Fortunately, Daubert and its progeny have given us extensive guidance as to the types of questions to ask the expert to establish the expert’s lack of sound methodology. They involve concepts such as testing, “peer review,” rates of error, the existence of standards, “general acceptance” and other well-defined criteria. Let’s look at some of them.

Assume for the sake of this example that a plaintiff’s expert has opined in a report that your client’s Widget-making machine was defectively designed because it lacked a guard over its cutting implement. That hypothesis, like all hypotheses, could theoretically be tested, but has the expert bothered to do so? For example, has the expert actually designed and placed a guard over the Widget-making machine to see if, under real working conditions, it actually cuts down on the frequency of accidents without reducing the machine’s overall functionality and utility?

“Peer review” is the process by which a scholarly work (such as a paper or a research proposal) is vetted by a group of experts in the same field to make sure it meets the acknowledged and accepted standards in the field before it is published or generally accepted. Why should the plaintiff’s expert’s opinion (i.e., scholarly work) be any different, or immune to this level of scrutiny? Under Daubert, it isn’t. For that reason, effective questioning of the expert often will establish that his theory of defect – in our imagined scenario, the lack of a guard over the Widget-making machine’s cutting implement – has never been published anywhere other than in a series of the expert’s reports he issued in prior lawsuits. Therefore, by definition, the theory of design defect the expert is advancing in your case has never been offered for commentary to other experts in the same field. Once this fact is established, the plaintiff’s expert is nothing more than a lone wolf; his theory of design defect has never been checked for scientific soundness and has never become generally accepted by the community of similarly situated scientists.

Real scientists employ the scientific method to develop a hypothesis, test against it and then reach a conclusion about the soundness of the hypothesis. Real scientists then publish their theory in trade journals and give speeches about it at industry or academic gatherings. In this way, the expert’s proposed testimony grows naturally and directly out of healthy and impartial scientific curiosity. If targeted questioning establishes that the expert has never published the theory of defect in anything but the reports that were prepared within the context of litigation, then the expert’s opinions become nothing more than the product of advocacy instead of the product of real scientific inquiry.

Will the guard over the Widget-making machine’s cutting implement stop all accidents, or only some of them? If questioning establishes that there remains a fair modicum of Widget-machine accidents that would happen even with a guard over the cutting implement, then it also has established that there is a certain amount of “known or potential error” in the plaintiff’s expert’s hypothesis. Stated otherwise, the expert’s proffered design is no panacea.

Similarly, has the expert accounted for other possible explanations for the accident? What if the plaintiff was hurt simply because he or she was under the influence of alcohol? What if the Widget-making machine originally had a guard over its cutting implement, but the guard had been removed? Real scientists, using a legitimate methodology, strive to explain away all other possibilities for an accident’s occurrence.

Effective questioning of the expert also can establish that the expert can cite no known published standard – voluntary or mandatory; governmental or private – to support his theory. In our fictional example, effective questioning can show that no body of experts in the field, who were otherwise charged with the deliberative task of developing standards over a period of months or years for the safe design and use of Widget-making machines, had ever advanced the notion that a guard over the cutting implement was necessary to make the machine “safe.” Again, the plaintiff’s expert looks more and more like the lone wolf − rather than a reasonable scientist.

In a case in which the expert advanced an opinion that your client’s product was missing an important warning, had the expert actually developed a proposed warning for the product? That is, has the expert actually written the verbiage and determined the warning’s size and shape, the font size and correct “signal” word? Has he tested the proposed warning for “understandability” and its effect on the reader? Will the proposed warning actually work to change the product user’s behavior and prevent an accident? Without such development and testing, the expert’s opinions in this area is speculative at best.

Lastly, effective questioning of the expert should ask whether there is a causal link between the opinion and the facts of the case; that is, as Daubert and its progeny put it, whether the opinion actually “fits” the facts of the case. If questioning of the plaintiff’s expert establishes that the existence of a guard over the Widget-making machine’s cutting implement would have made no difference – perhaps the facts show that the plaintiff intentionally reached into the area of the cutting implement to clear a jam and thus the existence of a guard would not have prevented the accident – then the plaintiff’s expert’s opinion and proffered alternative design, though interesting, arguably proves nothing.

The ways to question a supposed expert’s methodology is limited only by one’s imagination. This article suggests some areas of attack. With effective questioning, your opponent’s expert will look less like an independent and impartial scientist and more like the proverbial “hired gun” who will advance any opinion so long as an attorney is willing to pay the required hourly rate.