Shook, Hardy & Bacon Miami Associate Katherine Mastrucci authored a May 2016 Dade County Bar Association Bulletin article, “Daubert in Florida: Substantive or Procedural?” discussing Florida’s heated debate over whether the Florida Supreme Court will adopt the Daubert standard of expert evidence.
Mastrucci says Daubert “focuses on the reliability of the scientific methodology undergirding an expert’s opinions,” which would make the expert testimony standard more stringent. Regarding the opinions on Daubert, Mastrucci notes, “History alone suggests that the Court would rule in favor of adoption, the Court having periodically and almost uniformly adopted legislative changes to the Florida Evidence Code since the Code’s enactment.” Mastrucci continues: “That said, given the Court’s hostility toward the Daubert standard, the Court may well break with precedent and decline to adopt the Daubert amendments.”
Mastrucci highlights a third option from a recent unpublished opinion by the Florida Supreme Court, in which the Court rejected a prisoner’s claims in Zakrzewski v. State, stating that neither Daubert nor Frye standards for evidence apply at times.
While the Florida Supreme Court holds that substantive changes in law apply prospectively, and procedural ones apply both prospectively and retroactively, “all Florida courts to have addressed the issue in the context of the Daubert amendments agree that the amendments are procedural in nature and thus apply retrospectively,” Mastrucci writes. If the Florida Supreme Court chooses not to retroactively apply Daubert, “the Court may have effectively implied that these amendments are not procedural at all but, rather, are substantive in nature.”
Mastrucci closes, “While unpublished opinions do not constitute binding precedent, it is curious to see this State’s highest tribunal—in an alternative holding and without any citation to prior authority—contravene a fixture in Florida’s body of law.”