Board considers controversial expert witness rule.

A debate over how expert witnesses in a trial are qualified that roiled the Legislature two years ago is being played out again before the Bar Board of Governors.

The enactment in 2013 of an amendment to F.S. Chap. 90, the state's evidence code, is now subject of a recommendation by the Bar's Code and Rules of Evidence Committee (CREC) that the change not be adopted as evidence rules.

The law requires that courts use the Daubert standards in evaluating experts, overturning a Florida Supreme Court ruling which had established what are known as Frye criteria for evaluating those experts.

The issue has proved as convoluted in CREC as it did in the Legislature, where it took three attempts to get the bill passed. The committee, which occupies a rather unique role among procedural rule committees, had tentatively voted in 2013 to recommend that the Supreme Court adopt the law into evidence rules to the extent it is procedural. But in its final vote, the panel voted 16-14 to recommend against adopting the law as an evidence rule.

The Board of Governors, which considers and votes on procedural rule changes before they are submitted to the court, got its first look at the proposal at its July meeting but had committee members available to answer questions at its October 16 meeting. Bar members spent 90 minutes listening to pro and con presentations from committee members Wayne Hogan and David Jones and asking questions.

The board then tabled debate on the recommendation and a vote until its December 4 meeting in Naples. Under the Rules of Judicial Administration, the board must make its recommendation on the rules by December 15, and CREC has until February 1, 2016, to evaluate those comments and submit its report to the Supreme Court under its three-year-cycle rule amendments.

The Legislature's bill requires that the Daubert standard--based on a U.S. Supreme Court opinion in 1993--be used in Florida trials instead of the Frye standard, which stems from a 1923 case.

Proponents--including the business community, defense lawyers, and public defenders--said Daubert is a better standard that prevents junk science from being used in cases and prevents frivolous lawsuits. Opponents--including state attorneys and plaintiff attorneys--said Daubert can be used as a delaying tactic to impose costs and time delays in cases and can require relitigating accepted scientific evidence and testimony in every case.

Hogan said under Frye, it's largely up to a jury to...

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