Court set to revisit Daubert.

When the Florida Supreme Court declined to adopt a legislative change to the state's evidence code on how expert witnesses are qualified, the majority said they wanted to address the issue in a case in conflict.

The court now has that case.

Richard Delisle v. Crane Co., et al., Case No. SC1672182, involves a plaintiff who claimed he contracted mesothelioma from smoking Kent cigarettes when they used asbestos in the filters (from 1952 to 1956) and from handling gaskets that contained asbestos when he worked at a paper mill. The court is considering the Legislature's code change to require what is known as the Daubert standard to be used to qualify expert witnesses instead of the Frye standard the court has favored for decades.

"We did our work, the court made its ruling, but said it was looking to address the question in the course of a case. Now they have a case that raises the issue squarely for them to address," said Wayne Hogan, vice chair of the Bar's Code and Rules of Evidence Committee. Hogan headed a faction on the committee that opposed adopting the Daubert rule when the committee voted narrowly to oppose the Legislature's actions.

In 2013, the Legislature, after years of consideration, approved an amendment to the evidence code, F.S. Chap. 90, that required a switch in qualifying experts from the Frye to the Daubert standard. Many trial courts, including the judge in the Delisle case, began using the Daubert standard even though the Supreme Court had not ruled on it.

Proponents of the amendment argued that Frye allows junk science in the courtroom, while Daubert provides more consistent scientific testimony. Opponents said Daubert, which is used in federal court and by most states, requires expensive mini-trials on admitting expert witnesses, delaying cases, raising costs, and thereby limiting access to the courts.

The evidence code and rules occupy a unique position in the procedural rules universe. Under the Florida Constitution, the Legislature, through the evidence code in Chap. 90, is in charge when substantive issues are involved. However, on procedural matters that involve the functioning of the courts, the Supreme Court is in charge.

The Bar's Code and Rules of Evidence Committee reviews all amendments to Chap. 90 and then makes recommendations to the Supreme Court that it should adopt those changes as evidence rules to the extent they are procedural. The committee almost always makes that recommendation to the court.

But...