Florida Supreme Court Rejects Rule Changes To Adopt Daubert Standard, Same Specialty Experts In Medical Malpractice Cases

162017_132140396847214_292624_nIn its opinion filed on February 16, 2017, the Supreme Court of Florida (“Florida Supreme Court”) considered legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012), and declined to adopt, to the extent they are procedural, the changes to sections 90.702 and 90.704 of the Evidence Code made by the Daubert Amendment and further declined to adopt, to the extent they are procedural, the amendments to section 766.102, Florida Statutes, made by the Same Specialty Amendment.


In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert“), the United States Supreme Court held that the Federal Rules of Evidence superseded Frye’s general acceptance test for the admissibility of scientific evidence. In addition, in interpreting Federal Rule of Evidence 702, Daubert provides that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”

The Florida Daubert Amendment

In 2013, the Florida Legislature rejected the longstanding Frye standard and adopted the Daubert standard and Federal Rule of Evidence 702 with two amendments to the Evidence Code. The Daubert Amendment amended sections 90.702 and 90.704, Florida Statutes (2012), to change the standard of admissibility for scientific expert evidence from the Frye standard to the Daubert standard and the standard found in Federal Rule of Evidence 702. See ch. 2013-107, §§ 1 – 2, Laws of Fla. The Frye test only applies to expert testimony based upon new or novel scientific evidence, and in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

In rejecting the Daubert Amendment, the Florida Supreme Court stated: “we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised [undermining the right to a jury trial and denying access to the courts] which must be left for a proper case or controversy.”

Same Specialty Amendment

Florida’s Same Specialty Amendment amended section 766.102(5)(a), Florida Statutes (2012), to require a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty, rather than the same or similar specialty as the health care provider against whom or on whose behalf the testimony is offered. See ch. 2013-108, § 2, Laws of Fla. The amendment also repealed section 766.102(14), Florida Statutes (2012), which recognized a trial court’s authority to disqualify or qualify an expert witness on grounds other than the qualifications in that section.

In rejecting the Same Specialty Amendment, the Florida Supreme Court stated: “we decline to adopt the Same Specialty Amendment, for the same reasons we declined to adopt section 766.102(12) [concerns that the statute is unconstitutional, had a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice], which requires a standard-of-care expert witness to hold the same state license as the health care provider against whom, or on whose behalf, the expert is testifying or to have a valid expert witness certificate.”

Source In Re: Amendments To The Florida Evidence Code, SC No.16-181.

If you or a loved one were injured due to medical negligence in Florida or in another U.S. state, you should promptly find a Florida medical malpractice attorney, or a medical malpractice attorney in your U.S. state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Tuesday, February 21st, 2017 at 5:26 am. Both comments and pings are currently closed.

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