Richard DeLisle seeks review of the decision of the Fourth District Court of Appeal in Crane Co. v. DeLisle, 206 So.3d 94 (Fla. 4th DCA 2016), on the ground that it expressly and directly conflicts with a decision of this Court on a question of law.
The facts of this case were described in the Fourth District's opinion as follows:
Crane Co. v. DeLisle, 206 So.3d 94, 98-100 (Fla. 4th DCA 2016) (footnotes omitted). Crane appealed the trial court's denial of its motions for directed verdict and judgment notwithstanding the verdict and the trial court's admission of expert causation testimony among other issues. Id. at 100. R.J. Reynolds also appealed the admission of expert testimony and both parties appealed the award as excessive. Id.
The Fourth District reviewed the admission of the testimony of the experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and found that the trial court "failed to properly exercise its gatekeeping function as to Drs. Dahlgren, Crapo, and Rasmuson." Id. The Fourth District reversed for a new trial for R. J. Reynolds and reversed and remanded for entry of a directed verdict for Crane. Id. at 111-12. DeLisle sought review by this Court, which was granted.
The Florida Legislature and the Florida Supreme Court have worked in tandem for nearly forty years to enact and maintain codified rules of evidence. This arrangement between the branches to avoid constitutional questions of separation of powers continued uninterrupted from the Evidence Code's inception until 2000. In the instant case, we are asked to determine whether chapter 2013-107, section 1, Laws of Florida, which revised section 90.702, Florida Statutes (2015), and which we previously declined to adopt, to the extent it was procedural, infringes on this Court's rulemaking authority. We find that it does. Therefore, we reverse the Fourth District and remand for reinstatement of the final judgment.
The Florida Legislature enacted the first codified rules of evidence in 1976. Ch. 76-237, at 556, Laws of Florida. In 1979, we adopted the Florida Evidence Code, to the extent that the code was procedural. See In re Fla. Evidence Code, 372 So.2d 1369 (Fla.), clarified, In re Fla. Evidence Code, 376 So.2d 1161 (Fla. 1979). We recognized that "[r]ules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the
Until 2000, the working arrangement between the Legislature and the Florida Supreme Court remained intact. However, in In re Amendments to the Florida Evidence Code, 782 So.2d 339 (Fla. 2000), this Court for the first time declined to adopt, to the extent they were procedural, amendments to section 90.803, Florida Statutes (1997). Id. (declining to adopt chapter 98-2, section 1, Laws of Florida, amending section 90.803(22), Florida Statutes, which allows the admission of former testimony although the declarant is available as a witness, in part because of concerns about its constitutionality). We then considered the constitutionality of the provision in State v. Abreu, 837 So.2d 400 (Fla. 2003), determining that the revised statute was unconstitutional because it infringed on a defendant's right to confront witnesses. Id. at 406.
Since then, we have only rarely declined to adopt a statutory revision to the Evidence Code. See, e.g., In re Amends. to the Fla. Evidence Code, 210 So.3d 1231 (Fla. 2017) (declining to adopt chapter 2013-107, sections 1-2, Laws of Florida); In re Amends. to the Fla. Evidence Code, 144 So.3d 536 (Fla. 2014) (declining to adopt chapter 2011-183, section 1, Laws of Florida, creating section 90.5021, Florida Statutes (2012), which establishes a "fiduciary lawyer-client privilege," and declining to adopt chapter 2011-233, section 10, Laws of Florida, creating section 766.102(12), Florida Statutes (2012), which pertains to a medical malpractice expert witness provision). Since its inception, therefore, the Florida Evidence Code has been considered neither purely substantive nor purely procedural. See In re Fla. Evidence Code, 372 So.2d 1369, 1369 (Fla.), clarified, 376 So.2d 1161 (Fla. 1979) ("Rules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court.").
Generally, the Legislature has the power to enact substantive law while this Court has the power to enact procedural law. See Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000). Substantive law has been described as that which defines, creates, or regulates rights — "those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property, and reputation." In re Fla. Rules of Criminal Procedure, 272 So.2d 65, 65 (Fla. 1972) (Adkins, J., concurring). Procedural law, on the other hand, is the form, manner, or means by which substantive law is implemented. Id.
The distinction between substantive and procedural law, however, is not always clear. For example, a law is considered to be substantive when it both creates and conditions a right. See State v. Raymond, 906 So.2d 1045, 1049 (Fla. 2005); Jackson v. Fla. Dep't of Corr., 790 So.2d 381, 383-84 (Fla. 2000) (holding that the Legislature could properly limit the right of indigents to proceed without payment of costs); Caple v. Tuttle's Design-Build, Inc., 753 So.2d 49, 54 (Fla. 2000) (holding that a statute creating the right to petition for mortgage payment receipts during foreclosure proceedings and establishing the grounds for granting such a petition was constitutional); School Bd. of Broward Cty. v. Price, 362 So.2d 1337 (Fla. 1978) (holding that section 230.23(9)(d)(2), Florida Statutes (1977), set the bounds of a substantive right conditioned on a waiver and was therefore not an unconstitutional infringement of the Court's power to set procedural rules). However, when procedural aspects overwhelm substantive ones, the law may no longer be considered substantive. Raymond, 906 So.2d at 1049.
Here, the Legislature sought to adopt Daubert and cease the application of Frye to expert testimony. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a short opinion, the Court of Appeals for the District of Columbia pronounced that the line between when a scientific discovery or principle crosses from experimental to demonstrable is indiscernible so that courts would do better "admitting expert testimony deduced from a well-recognized scientific principle or discovery." Id. at 1014. Further, the Court explained, "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. This rule — that expert testimony should be deduced from generally accepted scientific principles — has been the standard in Florida cases and, today, we reaffirm that it is still the standard. See, e.g., Kaminski v. State, 63 So.2d 339, 340 (Fla. 1952) (recognizing Frye's rejection of systolic blood pressure deception tests as having "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.") (quoting Frye, 293 F. at 1014); Bundy v. State, 471 So.2d 9, 13 (Fla. 1985) (describing 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 experts in the field widely share the view that the results are scientifically reliable as accurate").
Considering the admissibility of posthypnotic testimony, we formally adopted Frye, determining:
Stokes, 548 So.2d at 193-94. We note that we adopted the Frye test irrespective of the Evidence Code, which was in place at the time.
In Hadden v. State, 690 So.2d 573 (Fla. 1997), we rejected the argument that the Legislature's enactment and this Court's subsequent adoption of the Evidence Code replaced the Frye standard with the balancing test that existed in the code. Hadden, 690 So.2d at 577 (citing Daubert, 509 U.S. 579, 113 S.Ct. 2786; Stokes, 548 So.2d 188). We stated:
Hadden, 690 So.2d at 578.
After decades of the federal courts' applying Frye, Congress revised the Federal Rules of Evidence. The revision was addressed by the United States Supreme Court in 1993. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court determined the appropriate standard for admitting expert scientific testimony in a federal trial. Id. at 582, 113 S.Ct. 2786. The Supreme Court ultimately agreed with the petitioners that Frye had been superseded by the adoption of the revised Federal Rules of Evidence. Id. at 587, 113 S.Ct. 2786.
The Court explained its decision, stating, "[I]n order to qualify as `scientific knowledge,' an inference or assertion must be derived by the scientific method." Daubert, 509 U.S. at 590, 113 S.Ct. 2786. The inquiry derived from Daubert is a flexible one, as emphasized by the Supreme Court. Id. at 594, 113 S.Ct. 2786. "The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. 2786. The Supreme Court in Daubert opined that the change in rule 702 was necessary to permit scientifically valid and relevant evidence, summarizing:
Id. at 597, 113 S.Ct. 2786. In short, in Daubert, the United States Supreme Court found that otherwise probative and scientifically valid evidence was being excluded under the Frye standard and the change in rule 702 was necessary to permit additional relevant evidence to be considered even if it was based on scientific methods or principles that were not yet generally accepted.
Nevertheless, in Brim v. State, 695 So.2d 268 (Fla. 1997), we unanimously emphasized that we continue to apply Frye to "guarantee the reliability of new or novel scientific evidence." Id. at 271 (citing Stokes v. State, 548 So.2d 188 (Fla. 1989)). We opined:
Brim, 695 So.2d at 271-72 (footnote omitted).
Following our repeated affirmations of the Frye rule, in 2013 the Legislature amended section 90.702 to incorporate Daubert in the Florida Rules of Evidence. The amendment revised the statute to read as follows:
§ 90.702, Fla. Stat. (as amended by ch. 2013-107, § 1, Laws of Fla.).
Article II, section 3 of the Florida Constitution prohibits one branch of government from exercising any of the powers of the other branches. Further, article V, section 2(a) provides this Court the exclusive authority to "adopt rules for the practice and procedure in all courts." Art. V, § 2(a), Fla. Const. The Legislature may only repeal the rules of this Court by "general law enacted by two-thirds vote of the membership of each house of the legislature." Id. First, the amendment was not written to repeal Frye or Marsh but to overrule this Court's decision. See Fla. HB 7015, preamble (2013) (available at www.flsenate.gov/Session/Bill/2013/7015) ("the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh...". The vote here did not meet the requirement. The House passed the bill with a majority, 70 to 41 (or 58.3% of the membership). The Senate passed the bill with more than the necessary two-thirds vote, 30 to 9 (or 75% of the membership). Id.
In Jackson v. Florida Department of Corrections, 790 So.2d 381 (Fla. 2000), we explained that a statute can have both substantive provisions and procedural requirements and "[i]f the procedural requirements conflict with or interfere with the procedural mechanisms of the court system, they are unconstitutional under both a separation of powers analysis, and because [they intrude upon] the exclusive province of the Supreme Court pursuant to the rulemaking authority vested in it by the Florida Constitution." Id. at 384 (citing art. II, § 3, art. V, § 2, Fla. Const.; State v. Garcia, 229 So.2d 236, 238 (Fla. 1969)). We noted that the copy requirement contained in the rule provided an extra and unnecessary burden on the operation of this Court. Id. at 386.
In State v. Raymond, 906 So.2d 1045 (Fla. 2005), we determined that section 907.041(4)(b), Florida Statutes (2000), providing that a person charged with a dangerous crime was prohibited from receiving a nonmonetary pretrial release, was purely procedural and, therefore, an unconstitutional violation of the separation of powers clause. "It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm." Id. at 1048 (citing Markert v. Johnston, 367 So.2d 1003 (Fla. 1978)). Further, "where there is no substantive right conveyed by the statute, the procedural aspects are not incidental; accordingly, such a statute is unconstitutional." Id. at 1049 (citing Knealing, 675 So.2d 593).
Further, we determined that the Legislature's attempt to "specif[y] the precise moment during the judicial proceeding when a motor vehicle liability insurer may be formally recognized as the real party in interest" in section 627.7262, Florida Statutes (1977), was "an invasion of this Court's rulemaking authority." Markert, 367 So.2d at 1005-06. However, in VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla. 1983), we considered the revised version of the same statute, and determined that there were "substantial differences between the two statutes." Id. at 882. Because of those differences, we determined that the Legislature substantively pronounced public policy overturning this Court's pronouncement in Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969), and was therefore constitutional. VanBibber, 439 So.2d at 883.
Our consideration of the constitutionality of the amendment does not end with our determination that the provision was procedural. For this Court to determine that the amendment is unconstitutional, it must also conflict with a rule of this Court. See Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730, 732-33 (Fla. 1991) ("Where this Court promulgates rules relating to the practice and procedure of all courts and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict.") (citing Sch. Bd. v. Surette, 281 So.2d 481 (Fla. 1973), receded from on other grounds by Sch. Bd. v. Price, 362 So.2d 1337 (Fla. 1978)); see also Leapai v. Milton, 595 So.2d 12, 14 (Fla. 1992) (holding that section 45.061, Florida Statutes (1987), was not unconstitutional to the extent it did not conflict with Florida Rule of Civil Procedure 1.442 and stating that "statutes should be construed to effectuate the express legislative intent and all doubt as to the validity of any statute should be resolved in favor of its constitutionality" (quoting McKibben v. Mallory, 293 So.2d 48 (Fla. 1974))). A procedural rule of this Court may be pronounced in caselaw. See Sch. Bd. of Broward Cty. v. Surette, 281 So.2d 481, 483 (Fla. 1973), receded from on other grounds by Sch. Bd. of Broward Cty. v. Price, 362 So.2d 1337 (Fla. 1978) ("Where rules and construing opinions have been promulgated by this Court relating to the practice and procedure of all courts and a statutory provision provides a contrary practice or procedure ... the statute must fall.") While the Legislature purports to have pronounced public policy in overturning Marsh, we hold that the rule announced in Stokes and reaffirmed in Marsh was a procedural rule of this Court that the Legislature could not repeal by simple majority.
We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.
The expert testimony in this case was properly admitted and should not have been excluded by the Fourth District. As we stated in Marsh, medical causation testimony is not new or novel and is not subject to Frye analysis. Marsh, 977 So.2d at 549. Further, we have previously recognized that asbestos products "have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others." Celotex Corp. v. Copeland, 471 So.2d 533, 538 (Fla. 1985). Here, the trial court heeded our caution to "resist the temptation to usurp the jury's role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views." Marsh, 977 So.2d at 549 (citing Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So.2d 1264, 1275 (Fla. 2003)). The Fourth District erred in disturbing the trial court's determination.
Next, R.J. Reynolds and Crane both challenged the trial court's denial of remittitur. We conclude that the Fourth District's application of a dissenting viewpoint
For the foregoing reasons, we quash the Fourth District's decision. Furthermore, because the causation of mesothelioma is neither new nor novel, the trial court's acceptance of the expert testimony was proper. We therefore remand to the Fourth District with instructions to remand to the trial court to reinstate the final judgment. We decline to address the remaining issues.
It is so ordered.
PARIENTE, LEWIS, and LABARGA, JJ., concur.
PARIENTE, J., concurs with an opinion, in which LABARGA, J., concurs.
LABARGA, J., concurs with an opinion, in which PARIENTE, J., concurs.
CANADY, C.J., dissents with an opinion, in which POLSTON and LAWSON, JJ., concur.
PARIENTE, J., concurring.
I fully concur with the majority's decision to remand for reinstatement of the final judgment and its conclusion that the 2013 legislative amendments to section 90.702, Florida Statutes ("the Daubert amendment"), infringe on this Court's rulemaking authority. I write separately to express my belief that the Daubert
Determining the admissibility of evidence in a civil or criminal case is a quintessentially judicial function. See Johnston v. State, 863 So.2d 271, 278 (Fla. 2003) ("A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion."); Cantore v. W. Boca Med. Ctr., Inc., 2018 WL 4235334, *3 (Fla. Apr. 26, 2018). This includes the admission of expert opinion testimony.
In deciding whether a particular expert's testimony is admissible, the trial court is guided by the rules of evidence, which require that the expert testimony "assist the trier of fact." § 90.702, Fla. Stat. (2017). Further, as part of its gatekeeping function, the trial court must, if challenged by a party, determine whether the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice." Id. § 90.403. However, once the trial court determines that expert testimony will assist the trier of fact and is not unduly prejudicial, the jury is entitled to hear the expert testimony. Any other approach, in my view, reflects a mistrust of the jury system and the ability of jurors to weigh the evidence.
As the majority explains, Frye
In 1993, the United States Supreme Court held that the Federal Rules of Evidence superseded the Frye "general acceptance" test for the admission of expert testimony in federal trials. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under the federal rules, instead of determining whether the basis for an expert's opinion was generally accepted in the relevant scientific community, the Court explained that "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786. The Court noted that this new standard
Several years after Daubert, the United States Supreme Court concluded that a trial judge may consider additional factors when determining whether expert testimony meets the Daubert standard, including whether a particular theory or technique had been or could be tested, whether it had been subjected to peer review, and whether a particular technique had a known or potential rate of error. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Consistent with its intention that the Daubert standard be flexible, the Court explicitly emphasized the word "may." Id.
Despite the Supreme Court's intention that Daubert be applied flexibly, it has been observed that, in actuality, "[t]he gatekeeping role bestowed upon the judiciary has blocked more court access than it has enabled." Allan Kanner & M. Ryan Casey, Daubert and the Disappearing Jury Trial, 69 U. Pitt. L. Rev. 281, 283 (2007). Particularly relevant in this case, defendants often exploit the requirements of Daubert as a sword against plaintiffs' attorneys. See id. at 283-84. Others have written that Daubert has "produced a minefield clogged with `Daubert hearings' that are more lengthy, technical, and diffuse than anything that preceded them." David Crump, The Trouble with Daubert-Kumho: Reconsidering the Supreme Court's Philosophy of Science, 68 Mo. L. Rev. 1, 1 (2003).
Daubert has limited access to courts in two significant ways. First, Daubert applies in substantially more cases than Frye. As stated previously, unlike Frye, which applies only to testimony which is predicated on new or novel scientific evidence, Daubert applies to all expert testimony. Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (stating that Daubert "applies to all expert testimony"). Therefore, more litigants are exposed to the risk of exclusion of their experts' testimony under Daubert.
Second, in addition to expanding the areas of expert testimony that are subject to challenge, the Daubert analysis involves more than just the Frye consideration of whether "the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community." Brim, 695 So.2d at 272. Under Daubert, it is the trial judge who must ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." 509 U.S. at 597, 113 S.Ct. 2786. As explained previously, this is a multi-factor consideration. Id. at 593-94, 113 S.Ct. 2786. In other words, as the majority states, "Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges...." Majority op. at 1229. The difference as to who makes this reliability determination is not inconsequential, as trial judges, who typically do not possess the requisite training or experience in the expert's field, must fully understand the science before they can even attempt to determine whether it is admissible under Daubert.
In 2013, the Legislature formally adopted the Daubert standard. See ch.
In addition to the constitutional concerns, the Committee believed that the amendment "would overburden the courts and impede the ability to prove cases on their merits." Comm. Report at 10.
Comm. Report at 11-12 (citation omitted).
The concerns raised by the Committee do not merely exist in the abstract. Attorney Dan Cytryn, a lawyer with "more than 35 years [of experience] almost exclusively
The National Association of Criminal Defense Lawyers ("NACDL") raised competing concerns in the battle between Frye and Daubert when we considered the Daubert amendment last year. The NACDL urged this Court to adopt the amendment, arguing that the Frye standard often permits the admission of "flawed scientific evidence." Comment by the NACDL at 2, In re Amends. to Fla. Evidence Code, 210 So.3d 1231). The NACDL contended that under Daubert, "the trial court can truly fulfill its critical role as a gatekeeper to ensure that expert testimony is the product of reliable scientific principles and methodology." Id. While I understand the concerns articulated by the NACDL, I am not persuaded that the proper application of the Frye standard is unable to sufficiently guard against these concerns.
As this Court explained in Ramirez v. State, 810 So.2d 836 (Fla. 2001), when applying Frye, a court is not required to determine that evidence is "generally accepted" on the basis of a mere "nose count" of experts in the field. Id. at 844. To the contrary, we explained that the court "may peruse disparate sources — e.g., expert testimony, scientific and legal publications, and judicial opinions — and decide for itself whether the theory in issue has been `sufficiently tested and accepted by the relevant scientific community.'" Id. (emphasis added) (footnote omitted) (quoting Brim, 695 So.2d at 272). We further explained that "[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles is inadequate to establish its admissibility if the witness's application of these principles is untested and lacks indicia of acceptability." Id.
In that case, although several of the State's experts testified that the underlying principle of a particular method concerning knife mark evidence was generally accepted in the field, we concluded that such testimony "standing alone is insufficient to establish admissibility under Frye in light of the fact that [the method's] testing procedure possesse[d] none of the hallmarks of acceptability that apply in the relevant scientific community to [that] type of evidence." Id. at 849. Likewise, in Hadden v. State, 690 So.2d 573 (Fla. 1997), we concluded that a psychologist's opinion "that a child exhibits symptoms consistent with what has come to be known as `child sexual abuse accommodation syndrome,'" which the State sought to admit, "may not be used in a criminal prosecution for child abuse" because it was not generally accepted by a majority of experts in the field. Id. at 575.
I acknowledge that neither Frye nor Daubert is a perfect standard that will seem fair to all litigants in every proceeding. However, this Court's case law makes clear that a proper and thorough application of Frye allows the trial judge to inquire
In this case, after holding Daubert hearings on the plaintiff's experts' testimony, the trial court allowed the experts to testify regarding whether the products of three defendants, which contained asbestos, were a substantial contributing cause of the plaintiff's mesothelioma. Crane Co. v. DeLisle, 206 So.3d 94, 99 (Fla. 4th DCA 2016). The jury asked numerous probative questions during the trial and deliberated for three days before rendering a verdict, in which it apportioned fault against all three named defendants, in addition to a Fabre
Despite the jury's careful consideration of the case, the Fourth District Court of Appeal reversed for a new trial, concluding that the trial court abused its discretion in admitting three of the plaintiff's expert witnesses who testified regarding causation. Id.; see majority op. at 1230. As the majority explains, the causation testimony in this case would not have even been subject to a Frye challenge because "medical causation testimony is not new or novel." Majority op. at 1230 (citing Marsh v. Valyou, 977 So.2d 543, 549 (Fla. 2007)). Similarly, as also noted by the majority, this Court has, for decades, understood that asbestos products "have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others." Majority op. at 1230 (quoting Celotex Corp. v. Copeland, 471 So.2d 533, 538 (Fla. 1985)).
In other words, before Daubert, the testimony of the plaintiffs' causation experts would not have been subject to challenge. Under Daubert, however, an appellate court can usurp both the function of the trial court in ruling on the admissibility of evidence that is neither new nor novel, and the role of the jury in weighing the evidence and rendering a verdict.
For the reasons stated, in addition to the majority's conclusion that the Daubert amendment unconstitutionally infringes on this Court's rulemaking authority, I would also conclude that the Daubert amendment has the potential to unconstitutionally impair litigants' right to access the courts in civil cases. The amendment does nothing to enhance the factfinding process, and instead, displays a gross mistrust of the jury system.
LABARGA, J., concurs.
LABARGA, J., concurring.
I fully concur with the majority opinion, but write separately to express why jurisdiction is proper in this case on the basis of express and direct conflict. In the decision below, the Fourth District Court of Appeal evaluated the admissibility of the experts' testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). However, as noted by the majority, this Court has repeatedly stated that Frye
Id. at 547 (alteration in original).
Thus, the decision in DeLisle, which applied the Daubert standard, conflicts with earlier decisions by this Court that conclude Frye is the appropriate test. Although the Legislature amended the Evidence Code in 2013, this Court has never held that Daubert is the appropriate standard for admission of expert testimony in Florida. In fact, in 2017 — after the issuance of DeLisle — we expressly declined to adopt the amendments to the Evidence Code implementing Daubert to the extent they were procedural due to "grave constitutional concerns." In re Amendments to Fla. Evidence Code, 210 So.3d 1231, 1239 (Fla. 2017). Accordingly, despite the change in the Evidence Code, conflict between DeLisle and Marsh, Ibar, and other decisions articulating Frye as the applicable standard in Florida remains, and resolution as to which standard applies is critical to resolve uncertainty in Florida law. For this reason, we absolutely possess jurisdiction to address and determine whether the lower court properly applied Daubert.
PARIENTE, J., concurs.
CANADY, C.J., dissenting.
The majority grounds its exercise of jurisdiction on express and direct conflict, asserting that the decision on review, Crane Co. v. DeLisle, 206 So.3d 94 (Fla. 4th DCA 2016) — which applies the Daubert
Marsh and similar cases based on Florida's Frye jurisprudence do not address the "same question of law" as the question addressed in DeLisle, which was controlled by and applied amended section 90.702, a statute that became effective after Marsh and similar cases were decided and that was specifically designed to displace Florida's Frye jurisprudence.
To exercise jurisdiction here, the majority sets aside fundamental constitutional principles of conflict jurisdiction. Never before have we exercised conflict jurisdiction on the ground that a case applies a statute that displaces previously existing law. The majority thus charts an unprecedented and ill-advised course that would expand this Court's conflict jurisdiction to encompass every case in which a district court applies a statute that has changed a legal rule in any area of the law. This is a very serious error.
The constitutionality of amended section 90.702 is unquestionably an important issue that is worthy of consideration by this Court. But the importance of an issue does not justify transgressing the constitutional bounds of this Court's jurisdiction. Instead, such an issue should be considered by this Court only in a case that presents a proper basis for jurisdiction under our constitution. Of course, this case might well have presented a basis for jurisdiction. If DeLisle had made an argument to the district court challenging the constitutionality of amended section 90.702, the district court most likely would have addressed that argument in its opinion. And then — depending on the district court's ruling — this Court would have had either mandatory jurisdiction based on a declaration of invalidity, art. V, § 3(b)(1), Fla. Const., or discretionary jurisdiction based on a declaration of validity, art. V, § 3(b)(3), Fla. Const. Yet for some reason, such an argument was not presented to the district court. Parties every day make choices in litigating cases that limit their options for review. And parties ordinarily must live with the choices they make. This Court should not rescue a party from a poor choice by exercising jurisdiction where none exists.
This case should be discharged. I dissent.
POLSTON and LAWSON, JJ., concur.
Under this provision, this Court has concluded that certain statutes are unconstitutional because they restrict litigants' access to courts. See, e.g., Westphal v. City of St. Petersburg, 194 So.3d 311, 327 (Fla. 2016); Mitchell, 786 So.2d 521. Justice Shaw reached this conclusion regarding a statute that provided "that an injured party has no beneficial interest in a liability policy until that person has first obtained a judgment against an insured." VanBibber v. Hartford Accident & Indem. Ins. Co., 439 So.2d 880, 882 (Fla. 1983). Justice Shaw believed the statute was unconstitutional, in part, because it "denie[d] or delay[ed] the rights of access to the courts" under the Florida Constitution. Id. at 883 (Shaw, J., concurring in part and dissenting in part).
Joint Comment by Past Presidents of The Fla. Bar & Other Members of The Fla. Bar at 5, In re Amends. to Fla. Evidence Code, 210 So.3d 1231).