Under Florida law, What is the Standard for Admissibility of Expert Testimony?

Florida’s standard for admissibility of expert testimony mirrors Rule 702 of the Federal Rules of Evidence and the Daubert [1] test applied in Federal Courts. In re Amendments to the Florida Evidence Code, No. SC19-107 (May 23, 2019).  Per this standard, the Court must act as a gatekeeper and evaluate whether the expert is qualified [2] and whether the expert’s testimony is both relevant and reliable prior to admission at trial. Id.; Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (citations omitted). Under Daubert, the party seeking to admit expert testimony bears the burden to show, by a preponderance of the evidence, that the testimony is admissible. Kilpatrick, 613 F.3d at 1335; Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

The legal standard for admission of expert testimony is set forth in Fla. Stat. Section 90.702, titled “Testimony by Expert,” which provides:

If scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

(1)   The testimony is based upon sufficient facts or data;

(2)   The testimony is the product of reliable principles and methods; and

(3)   The witness has applied the principles and methods reliably to the facts of the case.

See In re Amendments to the Florida Evidence Code, No. SC19-107 at 2 n.3, 6-7.

The statutory requirement that expert testimony “assist the trier of fact” goes “primarily to relevance.” Fla. Stat. § 90.702; Daubert, 509 U.S. at 591. “Expert testimony which does not relate to any issue in the case is not relevant and ergo, non-helpful.” Id. at 591 (internal quotations omitted).

To determine the reliability requirement, the focus “must be solely on the principles and methodology, not on the conclusions they generate.” Id. at 595. The Court may consider the following four, non-exhaustive, flexible considerations: (1) whether the theory or technique can or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) “the known or potential rate of error” for the scientific technique; and (4) whether the theory or technique is generally accepted in the “relevant scientific community.” Daubert, 509 U.S. at 593-95; see Kilpatrick, 613 F.3d at 1335 (citations omitted).

The Court should further evaluate whether the expert ruled out other alternative explanations and conducted standard tests to support the expert’s conclusions. Guinn v. Astrazeneca Pharm. LP, 602 F.3d 1245 (11th Cir. 2010) (finding expert’s causation analysis unreliable and unsupported by the evidence for failure to consider other causes of plaintiff’s claimed injury and failure to conduct standard tests to support the expert’s conclusions). A “supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based on some recognized scientific method.” McDowell v. Brown, 392 F.3d 1283, 1300 (11th Cir. 2004) (quotations omitted).

Testimony that assumes causality from temporal sequence will not survive a Daubert challenge. See Guinn, 602 F.3d at 1254; Perez v. Bell S. Telecomms., Inc., 138 So. 3d 492, 499 (Fla. 3d DCA 2014) (citation omitted). Importantly, “[p]roposed testimony must be supported by appropriate validation, i.e. ‘good grounds’ based on what is known.” Daubert, 509 U.S. at 590 (emphasis added). Expert testimony cannot be speculative. Perez, 499 So. 3d at 499 (“Subjective belief and unsupported speculation are henceforth inadmissible”) (citing Daubert, 509 U.S. at 590); Everett v. Georgia Pacific Corp., 949 F. Supp. 856, 858 (S.D. Ga. 1996)).

In Florida, while experts are permitted to rely upon hearsay, this ability is not limitless. See Fla. Stat. 90.704 [3]; Bunyak v. Clyde J. Yancey & Sons Dairy, Inc., 438 So. 2d 891, 893 (Fla. 2d DCA 1983). If the proffered expert is serving “merely as a conduit” for otherwise inadmissible evidence, then the Court must exclude this expert testimony. See id. (finding trial court erred in permitting hydrologist expert to testify regarding a geologist’s opinion provided to hydrologist); Ross Dress for Less, Inc. v. Radcliff, 751 So. 2d 126, 127 (Fla. 2d DCA 2000).

Joel Ewusiak frequently represents parties in lawsuits involving expert testimony. Please contact Joel for legal assistance with your specific matter.

[1] To determine whether expert testimony is admissible, judges are tasked with determining whether the testimony is relevant and whether the expert’s testimony has “a reliable basis in the knowledge and experience” of the expert’s discipline. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592 (1993) (stating courts evaluate whether expert testimony is “not only relevant, but also reliable” prior to admitting the testimony); In re Amendments to the Florida Evidence Code, No. SC19-107 (May 23, 2019); Fla. Stat. §§ 90.401, 90.402 & 90.403.

[2] See, e.g., Goodyear Tire & Rubber Co. v. Ross, 660 So. 2d 1109, 1111 (Fla. 4th DCA 1995) (“[I]t is not enough that a witness be qualified to propound opinions on a general subject; rather, he must be qualified as an expert on the discrete area on which he is asked to opine.”); United Technologies Comms. Co. v. Industrial Risk Insurers, 501 So. 2d 46 (Fla. 3d. DCA 1987) (finding consulting engineer on fire-related loss not competent to give requisite opinion on effect of acid on metal components); Sea Fresh Frozen Prods., Inc. v. Abdin, 411 So. 2d 218 (Fla. 5th DCA 1982) (finding marine chemist not qualified to testify regarding the slipperiness of algae).

[3] Florida Statute Section 90.704 (2013) states:

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

See In re Amendments to the Florida Evidence Code, No. SC19-107 (May 23, 2019).