Florida Supreme Court rejects Daubert standard and same specialty standard for expert testimony in medical malpractice cases

In a February 16 opinion, the Florida Supreme Court stated that it declined to adopt, to the extent that they are procedural, two changes to the Evidence Code: the Daubert amendment and the Same Specialty amendment. Legal observers called the decision a victory for consumers, as both amendments would have imposed stricter controls on expert witness testimony. In rejecting the two changes, the Court cited “grave constitutional concerns” and the recommendation of the Evidence Rules Committee.

Florida’s Daubert amendment was passed by the state legislature and signed into law by Governor Rick Scott in 2013. The law replaced the Frye standard, under which expert testimony is permitted as long as it is generally accepted in its specific field, with the Daubert standard, used by federal courts, under which the trial judge must rule on the reliability of the expert testimony before it can be offered to the jury. Florida’s Constitution provides that the judicial branch has sole authority over procedural rules of court, while the legislature makes substantive law, so the state high court rejected the Daubert standard to the extent that it is procedural.

The Supreme Court also rejected the Same Specialty amendment, which would require an expert witness on the issue of standard of care in a medical malpractice trial to be from the exact same specialty, as opposed to just a similar specialty, as the medical care provider against whom the testimony is offered. In declining to adopt this standard, the court cited the chilling effect that the stricter rule would have on the ability of an injured patient to obtain an expert witness in a medical malpractice lawsuit, thus interfering with the constitutional right of access to the judicial system and a jury trial.