John Torres | Florida Today | October 14, 2015
Anyone who has ever sat through a trial or served on a jury has probably experienced listening to opposing “expert witnesses” who totally contradict each other.
I served on a medical malpractice jury and watched and scratched my head as doctors testifying for the defendant said one thing and doctors testifying for the plaintiff swore the exact opposite was true.
Ultimately, I gave neither “expert” much credence as they admitted on the stand that they were paid for their testimony and the judge instructed us to use our discretion. In the end, there was a hung jury.
But now, Gov. Rick Scott and the big business lobby (insurance and pharmaceutical companies) are the driving force behind a push for the Florida Bar Association to officially adopt the “Daubert Standard,” an additional layer of litigation that puts the judge in the unenviable position of deciding whether the jury should get to hear certain testimony. The spirit of the standard is to eliminate junk science but critics say it is being used to deter trial lawyers from introducing expert witnesses.
The State Legislature adopted the Daubert Standard a couple of years ago and Scott signed it onto law. But the separation of powers means the Florida courts are still using the old standard, known as the Frye Standard until the change is ordered by the Florida Supreme Court.
A little more than half the states in the country have adopted the Daubert Standard.
And while judges rarely rule to keep a witness from testifying, the result is more delays, more time in court and lots more money being spent to bring experts in to convince judges they should be allowed to testify.
Case in point: Remember my hung jury? Well, attorney Grant Kuvin of Morgan & Morgan said the defendant’s attorney asked for a Daubert Hearing before the retrial.
“It was done to try and drive up costs,” Kuvin said, explaining that it costs several thousand dollars to fly his expert into Brevard and spend another couple of days in court. “It never comes to fruition that anyone is stricken. If they don’t like your expert, they move for a Daubert Hearing. It is really just legal gamesmanship.”
The result?
More billable hours for attorneys, more cost to the litigants and an excuse for insurance companies to bump up their premiums.
Cocoa Beach attorney Tony Hernandez agrees.
“This makes it much more difficult for Plaintiffs to prove their case with expert testimony since under Daubert, it is much more difficult to qualify an expert witness. Defendants are now challenging the plaintiffs ‘experts’ and excluding their testimony,” he said. “In my opinion, this is clearly yet another attack by the Florida legislature on personal injury/medical malpractice plaintiffs. Not only do they make it harder to prove their case but they also make it impossible to prove damages.”
The standard will…