Court hears Daubert, Frye oral arguments.

Two issues were before the Supreme Court when it heard arguments September 1 on amendments to the Rules of Evidence.

One was should it incorporate into the Rules of Evidence the Legislature's 2013 law that changed the standard for expert testimony in court cases from the Frye standard used in Florida to the Daubert standard used in the federal courts. The second was whether such a change is a substantive policy matter that properly falls to the Legislature or whether it is a procedural matter under the jurisdiction of the court.

The Code and Rules of Evidence Committee, which advises the court on evidence matters, had recommended 1614 against adopting the change the Legislature made to the evidence code in F.S. Chap. 90 imposing the Daubert standard. By a 33-9 vote, the Bar Board of Governors endorsed that position.

Proponents of Daubert argue that the Frye standard allows "junk" science into cases and Daubert is a much higher scientific standard. Frye proponents say Daubert requires relitigating the same issues over and over in case after case, wasting court resources and raising costs for clients.

"It has become a tactical tool and the tactical tool has become the norm. The tactical tool causes layer upon layer of wasted time and cost," said former Bar President Howard Coker, who argued against the Daubert standard on behalf CREC. "The Daubert motions can create undue burdens on the courts.... Judges are put in the position of deciding factual issues that should be left to the jury. It puts the judges in the position ... of being amateur scientists."

Coker said he has been a trial attorney for 44 years, taking 300 to 400 cases to juries, and until the Daubert law passed in 2013, challenges to expert testimony was rare. Now it happens routinely, and, in one case, Coker said he had four Daubert hearings taking up four days and adding about $40,000 in costs to the case. He also said one judge holds Daubert hearings on Saturdays outside of the courtroom to handle the burden and save the costs of opening the courtroom.

The result is lawyers will decline to take many otherwise worthy cases because of the expenses, he said.

Justice Barbara Pariente questioned whether the court should reject adopting Daubert as a rule, because it is not actually passing on the constitutionality of the rule, which it would do when a case in controversy reaches the court.

"The court could not have adopted Frye if the matter were not procedural, because the power of...