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Fla. L. Weekly S179aTop of Form
Fla. L. Weekly S179aTop of Form
Evidence
Code — Amendments — Court declines to adopt, to the extent they are
procedural, legislative changes to sections 90.702 and 90.704 of the Evidence
Code made by the “Daubert Amendment,” which changed the standard of
admissibility for scientific expert evidence from Frye standard to Daubert
standard and the standard found in Federal Rule of Evidence 702 —
Constitutional concerns are raised which must be left for a proper case or
controversy — Court further declines to adopt, to the extent they are
procedural, changes to section 766.102, made by “Same Specialty Amendment,”
which 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 — Court declines to adopt changes made to hearsay exception in section
90.803(24) relating to reports of abuse by elderly persons or disabled adults,
which changes removed the alternative requirement that an elderly person or
disabled adult testify, only requiring that such individuals be unavailable to
do so
Code — Amendments — Court declines to adopt, to the extent they are
procedural, legislative changes to sections 90.702 and 90.704 of the Evidence
Code made by the “Daubert Amendment,” which changed the standard of
admissibility for scientific expert evidence from Frye standard to Daubert
standard and the standard found in Federal Rule of Evidence 702 —
Constitutional concerns are raised which must be left for a proper case or
controversy — Court further declines to adopt, to the extent they are
procedural, changes to section 766.102, made by “Same Specialty Amendment,”
which 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 — Court declines to adopt changes made to hearsay exception in section
90.803(24) relating to reports of abuse by elderly persons or disabled adults,
which changes removed the alternative requirement that an elderly person or
disabled adult testify, only requiring that such individuals be unavailable to
do so
IN
RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE. Supreme Court of Florida. Case No.
SC16-181. February 16, 2017. Original Proceedings — Florida Bar Code and Rules
of Evidence Committee. Counsel: Gregory Paul Borgognoni, Chair, Code and Rules of
Evidence Committee, Borgognoni Law, PL, Coral Gables; Peter Anthony Sartes, II,
Past Chair, Code and Rules of Evidence Committee, Law Offices of Tragos, Sartes
& Tragos, Clearwater; Perry Michael Adair, Vice-Chair, Code and Rules of
Evidence Committee, Becker & Poliakoff, P.A., Coral Gables; Patricia M.
Dodson, Vice-Chair, Code and Rules of Evidence Committee, Ponte Vedra; James
Norcross Floyd, Vice-Chair, Code and Rules of Evidence Committee, City
Attorney’s Office, Tallahassee; John Wayne Hogan, Code and Rules of Evidence
Committee, Terrell Hogan, Jacksonville; Andrew Hamilton, Code and Rules of
Evidence Committee, Andrew Hamilton, P.A., Tampa; Judge Claudia Rickert Isom,
Thirteenth Judicial Circuit, Code and Rules of Evidence Committee, Tampa; and
John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison,
The Florida Bar, Tallahassee, for Petitioner. Michael R. Alford, Senior Vice
President/Deputy General Counsel, on behalf of Raymond James Financial, Inc.,
Saint Petersburg; Moises Melendez of Sedgwick LLP, Fort Lauderdale; Jane
Anderson and Andrew Abramovich of Boyd & Jenerette, P.A., Jacksonville;
Mark R. Antonelli of Gaebe, Mullen, Antonelli & Dimatteo, Coral Gables;
Lewis F. Collins, Jr. of Butler Weihmuller Katz Craig LLP, Tampa; Michael J.
Corso of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers; Michael
Ross D’Lugo and Richards Huff Ford of Wicker Smith O’Hara McCoy & Ford,
P.A., Orlando; Peter Reed Corbin of Ford & Harrison LLP, Jacksonville;
Patrick Edward Quinlan of Searcy Denney Scarola Barnhart & Shipley, P.A.,
West Palm Beach; Richard Paul Pravato of Law Office of Wolf & Provato, Fort
Lauderdale; Brett J. Yonon of Law Office of Wolf & Pravato, Fort
Lauderdale; Vincent Joseph Pravato of Law Office of Wolf & Pravato, Fort
Lauderdale; Brian Harris Malamud of Law Office of Wolf & Pravato, Fort
Lauderdale; Stephen Fink, Hollywood; Walter Gary Meloon, Orlando; Jose M.
Rubio, Jr., Mascotte; Sam Arledge, Odessa; Richard May, Quincy; John Gory,
Ocala; John Yunker, Osprey; Alan Chandler, Newberry; Dannie Griffin, Panama
City; Dan Johnson, Sarasota; Richard Carroll, Rockledge; Richard Feagle,
Archer; Cherly Kluesener, Mount Dora; Steve Hatfield, Sanibel; Tommy Pippin,
Panama City; Bob Mercer, Orlando; William Cowherd, Edgewater; Laura Mitchell,
Cantonment; Tim Loughran, Oviedo; Jim Rackley, Jr., Tallahassee; Lloyd Johnson
Sarber, III of Marks Gray, P.A., Jacksonville; Tim Barter, Bradenton; Nate
Oglesby, Winter Garden; Jim Dietrich, Saint Cloud; Jo-Ann Taylor, Islamorada;
Tim Dozier, Zephyrhills; Sandrine Kouyessein, Port Saint Lucie; Charles G.
Fairbanks, Jr., Anthony; Grover McKee, Jr., Tallahassee; Pam Willis,
Monticello; Carolina Diaz, Naples; Bob Nelson, Saint Augustine; Kjhh Hodges,
Pompano Beach; Mike Jakubowski, North Port; Judy Powers, West Palm Beach;
Brenda C. Smith, Punta Gorda; Mike Jensen, Orlando; Kevin Wheeler, Alva;
Virginia Murphy, East Palatka; Frank Sweeney, Bradenton; Brice R. Holladay,
Jacksonville; Michelle Smith, Winter Springs; Paul Scholer, Miami; Jack Chason,
Tallahassee; James Baker, Jacksonville; Jess Dade, Ruskin; Mark De Jong,
Bradenton; Gary Kallmeyer, Haines City; Uma Lekhram, Plant City; Ralph T.
Rogers, Milton; Stephen Jones, Gainesville; Stephen Stump, Ocala; Brian
Hershberger, Ocala; Glenn Birket, Orlando; Jerry E. Pierce, Winter Park; Steven
A. Nisbet, Labelle; Jay Stees, Dunnellon; Gordon Koegler of Law Offices of
Gordon Koegler, P.A., Fort Lauderdale; Scott Marlo Newmark of Carner, Newmark
& Cohen, LLP, Fort Lauderdale; David Haase, Lakeland; Rodger Mena, Lake
City; David Batson, Jr., Tallahassee; Alan Cody, Fort Myers; Margaret Bigham,
Gulf Breeze; Terri Alba, Plant City; Susan Soverns, Hollywood; Tina M. Noll,
Dade City; Kelley Olson, Tallahassee; Roy Buncome, Fleming Island; Bob Dervaes,
Yulee; Nancy J. Goulah, Tampa; Francis Morton McDonald, Jr. of McDonald Toole
Wiggins, P.A., Orlando; Howard Gardner Butler of Butler Law Group,
Jacksonville; David Robert Heil of David R. Heil, P.A., Winter Park; James
Graber, Longwood; Jeff Godwin, Indialantic; John Doble, Odessa; James Richard
Caldwell, Jr. of Rumberger Kirk & Caldwell, P.A., Tampa; Charles Henry
Baumberger of Rossman, Baumberger, Reboso & Spier, P.A., Miami; Spencer Hal
Silverglate of Clarke Silverglate, P.A., Miami; Tara C.F. Ryan, PhRMA, Washington,
District of Columbia; J. David Williams, Progressive Insurance, Mayfield
Village, Ohio; James M. Graber, Apopka; Jonathan Moore, Winter Park; Robert N.
LaFontaine, Fort Myers; Lynn Hileman, Jacksonville Beach; Mikaela Olsen, Winter
Garden; Debra Kneiss, Dania Beach; Terry Cole of Gunster, Yoakley &
Stewart, P.A., Tallahassee; Wendy Frank Lumish of Bowman and Brooke LLP, on
behalf of Florida Attorneys of Bowman and Brooke LLP, Coral Gables; Mark Hicks
and Mary Joanna Gniadek of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, on
behalf of The Doctors Company; Douglas Malcolm McIntosh and Kimberly Kanoff
Berman of McIntosh, Sawran & Cartaya, P.A., Fort Lauderdale; Dana Brooks
Cooper of Barrett, Fasig & Brooks, Tallahassee; Sean Christopher Domnick of
Domnick Cunningham & Whalen, Palm Beach Gardens; Michael John Thomas of
Pennington P.A., Tallahassee; Brian Orr Sutter of All Injuries Law Firm, PA,
Port Charlotte; Thomas Stoneham Edwards, Jr. of Edwards & Ragatz, P.A.,
Jacksonville, and Courtney Kneece Grimm of Bedell, Dittmar, Devault, Pillans
& Coxe, P.A., Jacksonville, and Thomas Edward Bishop of Tanner Bishop,
Jacksonville, on behalf of The Trial Lawyers Section of The Florida Bar; Gary
M. Farmer, Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman P.L., Fort
Lauderdale; Howard Coleman Coker of Coker, Schickel, Sorenson, Posgay,
Camerlengo & Iracki, P.A., Jacksonville; Joseph B. Jones of Shapiro Law
Group, Bradenton; Jonathan Adam Huth of Murphy Anderson, Jacksonville; Lawton
R. Graves of Murphy Anderson, Jacksonville; Nicole Tucker Melvani of Murphy
Anderson, Jacksonville; Davis Daniel Balz of Murphy Anderson, Jacksonville;
Gerald Anthony Giurato of Murphy Anderson, Jacksonville; Niels Murphy of Murphy
Anderson, Jacksonville; William Newton Shepherd of Holland & Knight LLP,
West Palm Beach; Gregory Robert Miller of Beggs & Lane RLLP, Tallahassee,
Pamela Cothran Marsh of Berger Singerman, LLP, Tallahassee, A. Brian Albritton
of Phelps Dunbar, Tampa, Marcos Daniel Jimenez D’Clouet of McDermitt Will &
Emery, LLP, Miami, Neal Russell Sonnett of Neal R. Sonnett, P.A., Miami, James
E. Felman of Kynes Markman & Felman, Tampa, Michael S. Pasano of Carlton
Fields Jorden Burt, Miami, and Bruce Martin Lyons of Law Offices of Bruce M.
Lyons, Fort Lauderdale; Nathaniel Edward Green of Nathaniel E. Green, P.A.,
Fort Lauderdale; John Allen Attaway, Jr., Publix Super Markets, Inc., Lakeland;
T. Rankin Terry, Jr., Fort Myers; Henry Salas and David Orestes Caballero of
Cole Scott & Kissane, P.A., Miami, on behalf of Cole, Scott & Kissane,
P.A.; Kurt Eugene Lee of Kurt E. Lee, PL, Sarasota; Cecil Pearce, Tallahassee,
on behalf of Florida Insurance Council; Daniel A. Murphy of Shapiro, Goldman,
Babboni & Walsh, Bradenton, on behalf of Shapiro, Goldman, Babboni &
Walsh; George N. Meros, Jr. and Andy Velosy Bardos of GrayRobinson, P.A.,
Tallahassee, and William W. Large of Florida Justice Reform Institute,
Tallahassee, on behalf of Florida Justice Reform Institute; Erin O’Dell
O’Brien, Jacksonville, on behalf of CSX Transportation, Inc.; Craig S. Hudson
of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale; Anthony
Hunter Quackenbush of Kelley Uustal Trial Attorneys, Fort Lauderdale; James
William Guarnieri, Jr. of Guarnieri Law Firm, PA, Brandon; Troy Alan Rafferty
of Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A., Pensacola, on
behalf of Florida Justice Association; Patrick Stephen McArdle of Grossman Roth
& Partridge on behalf of Grossman Roth Yaffa & Cohen, P.A., Sarasota;
Hayden Patrick O’Byrne of K&L Gates, LLP, Miami; Susan K. Spurgeon of
Pennington, P.A., Tampa; Charles M. Trippe, Jr., Jacksonville, on behalf of
Carol Ann Licko, Raquel A. Rodriguez, Paul C. Huck, Jr., Jason B. Gonzalez,
Erik M. Figlio, and Jesse M. Panuccio; E. G. (Gerry) Morris, Austin, Texas,
Bruce Lyons, Fort Lauderdale, Neal R. Sonnett, Miami, and Jeffrey S. Weiner,
Miami, on behalf of the National Association of Criminal Defense Lawyers;
Julianne M. Holt, Tampa, on behalf of the Florida Public Defender’s
Association, Inc.; Rodolfo Sorondo, Jr. of Holland & Knight LLP, West Palm
Beach, Roy Carroll Young of Young, Vanassenderp & Qualls, P.A.,
Tallahassee, and Bill Herrle, Tallahassee, on behalf of The National Federation
of Independent Business/Florida and The Florida Chamber of Commerce; John
Fletcher Romano of Romano Law Group, West Palm Beach, on behalf of Romano Law
Group; Patrick Alexander Gillen of Newsome Melton, Orlando; William Carl
Ourand, Jr. of Newsome Melton, Orlando; Laurie J. Briggs, West Palm Beach;
Diana Santa Maria of Law Offices of Diana Santa Maria, P.A., Fort Lauderdale;
Todd Jordan Michaels of the Haggard Law Firm, Coral Gables, on behalf of Todd
Jordan Michaels and The Haggard Law Firm; Seth Elliot Miller, Tallahassee, on
behalf of Innocence Project of Florida, Inc.; Leslie Mitchell Kroeger of Cohen
Milstein Sellers & Toll PLLC, Palm Beach Gardens; Robert F. Spohrer of
Spohrer & Dodd, Jacksonville; Robert Mark Brochin of Morgan, Lewis &
Bockius LLP, Miami; David J. Halberg of David J. Halberg, P.A., West Palm
Beach; Belvin Perry, Jr. of Morgan & Morgan, Orlando; Corinne Cotton Hodak
of Corinne C. Hodak, P.A., Jacksonville; Robert Frank Melton, II of Newsome
Melton, Orlando; Robert Eric Bilik of McGuireWoods LLP, Jacksonville, on behalf
of McGuireWoods LLP; Michael Jason Winer of the Law Office of Michael J. Winer,
Tampa, on behalf of the Workers’ Compensation Section of The Florida Bar;
Timothy Michael Moore of Shook Hardy & Bacon, Miami; Mark Kenneth Delegal
of Holland & Knight LLP, Tallahassee, on behalf of Chubb, Cook Group
Incorporated, The Dow Chemical Company, Eli Lilly and Company, Glaxosmithkline
LLC, Metlife, Inc., Novo Nordisk Inc., Smiths Group, State Farm Mutual
Automobile Insurance Company, Walgreens, Zimmer Biomet, and American Tort
Reform Association; Tiffany Roddenberry of Holland & Knight, Tallahassee,
on behalf of American Coatings Association, Inc., Astrazeneca Pharmaceuticals
LP, Boston Scientific Corporation, Brunswick Corporation (Boston Whaler, Sea
Ray, Brunswick Commercial & Government Products, and Mercury Marine),
Caterpillar, Inc., CSX Transportation, Inc., Deere & Company, Eli Lilly and
Company, Ford Motor Company, Georgia-Pacific LLC, Hyundai Motor America,
Johnson & Johnson, Merck & Company, Inc., Norfolk Southern Corporation,
Novartis Pharmaceuticals Corporation, and Pfizer, Inc.; Matthew Kerry
Schwencke, West Palm Beach, on behalf of Searcy Denney Scarola Barnhart &
Shipley, PA; Gregory William Coleman of Critton Luttier and Coleman, West Palm
Beach, on behalf of Past Presidents of The Florida Bar and other members of The
Florida Bar; Dan Cytryn of Law Offices of Cytryn & Velazquez, P.A., Coral
Springs; Eric Harald Faddis and Tiffany Marie Faddis of Faddis & Faddis,
P.A., Orlando; Walter Gordon Campbell, Jr. of Krupnick Campbell Malone Buser Slama
Hancock Liberman, P.A., Fort Lauderdale; Brian Christopher Costa of Alvarez,
Carbonell, Feltman & Da Silva P.L., Coral Gables; Stephen George
Charpentier of Charpentier Law Firm, P.A., Melbourne; Edward Vincent Ricci of
Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach; James Read
Holland, II of Harrell & Harrell, P.A., Jacksonville; Pete Hutchison Brock,
II of Brock Law, LLC, Wesley Chapel; Daniel H. Perez of Alvarez, Carbonell,
Feltman & Da Silva P.L., Coral Gables; Robert D. Melton of Robert D. Melton
P.A., Orlando; Jack Roy Reiter of GrayRobinson, P.A., Miami; Stephen Ashley
Barnes of Barnes Trial Group, Tampa, on behalf of Stephen Ashley Barnes and
Barnes Trial Group; Howard Kraft Pita of Pita Weber Del Prado, Miami; William
Patrick Geraghty and Daniel Francis Molony of Shook Hardy & Bacon L.L.P.,
Miami, on behalf of the Florida Attorneys of Shook, Hardy & Bacon L.L.P.;
Gregory Andrew Reed of Simon, Reed & Salazar, P.A., Miami, on behalf of
Simon Reed & Salazar, P.A.; Charles Emmanuel Fombrun of Alvarez, Carbonell,
Feltman & Da Silva P.L., Coral Gables; Morgan Wood Streetman of Streetman
Law, Tampa; Ryan Sean LeMontang of Alvarez, Carbonell, Feltman & Da Silva
P.L., Coral Gables; Stephen Eugene Mahle of Stephen Mahle, P.A., Boca Raton; Elizabeth
Walker Finizio of Finizio & Finizio, PA, Fort Lauderdale; Stephen Watrel of
Steve Watrel, P.A., Jacksonville; Julie Braman Kane of Colson Hicks Eidson,
Coral Gables; Christina Marrero of Alvarez, Carbonell, Feltman & Da Silva
P.L., Coral Gables; The Honorable Garrett Richter, President Pro Tempore, The
Florida Senate, Tallahassee; Robert L. Simmons, Saint Petersburg, on behalf of
Allstate Insurance Company; Kenneth Andrew Stoller, Washington, District of
Columbia, on behalf of American Insurance Association; The Honorable Larry
Metz, The Florida House of Representatives, Tallahassee; David E. Bright,
Washington, District of Columiba, on behalf of Alliance of Automobile
Manufacturers and Charles H. Haake, Washington, District of Columbia, on behalf
of Association of Global Automakers; Bryan Scott Gowdy of Creed & Gowdy,
P.A., Jacksonville; Carlos Jesus Martinez, Public Defender, and John Eddy
Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, on
behalf of The Florida Public Defender Association, Inc., Responding with
Comments.
RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE. Supreme Court of Florida. Case No.
SC16-181. February 16, 2017. Original Proceedings — Florida Bar Code and Rules
of Evidence Committee. Counsel: Gregory Paul Borgognoni, Chair, Code and Rules of
Evidence Committee, Borgognoni Law, PL, Coral Gables; Peter Anthony Sartes, II,
Past Chair, Code and Rules of Evidence Committee, Law Offices of Tragos, Sartes
& Tragos, Clearwater; Perry Michael Adair, Vice-Chair, Code and Rules of
Evidence Committee, Becker & Poliakoff, P.A., Coral Gables; Patricia M.
Dodson, Vice-Chair, Code and Rules of Evidence Committee, Ponte Vedra; James
Norcross Floyd, Vice-Chair, Code and Rules of Evidence Committee, City
Attorney’s Office, Tallahassee; John Wayne Hogan, Code and Rules of Evidence
Committee, Terrell Hogan, Jacksonville; Andrew Hamilton, Code and Rules of
Evidence Committee, Andrew Hamilton, P.A., Tampa; Judge Claudia Rickert Isom,
Thirteenth Judicial Circuit, Code and Rules of Evidence Committee, Tampa; and
John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison,
The Florida Bar, Tallahassee, for Petitioner. Michael R. Alford, Senior Vice
President/Deputy General Counsel, on behalf of Raymond James Financial, Inc.,
Saint Petersburg; Moises Melendez of Sedgwick LLP, Fort Lauderdale; Jane
Anderson and Andrew Abramovich of Boyd & Jenerette, P.A., Jacksonville;
Mark R. Antonelli of Gaebe, Mullen, Antonelli & Dimatteo, Coral Gables;
Lewis F. Collins, Jr. of Butler Weihmuller Katz Craig LLP, Tampa; Michael J.
Corso of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers; Michael
Ross D’Lugo and Richards Huff Ford of Wicker Smith O’Hara McCoy & Ford,
P.A., Orlando; Peter Reed Corbin of Ford & Harrison LLP, Jacksonville;
Patrick Edward Quinlan of Searcy Denney Scarola Barnhart & Shipley, P.A.,
West Palm Beach; Richard Paul Pravato of Law Office of Wolf & Provato, Fort
Lauderdale; Brett J. Yonon of Law Office of Wolf & Pravato, Fort
Lauderdale; Vincent Joseph Pravato of Law Office of Wolf & Pravato, Fort
Lauderdale; Brian Harris Malamud of Law Office of Wolf & Pravato, Fort
Lauderdale; Stephen Fink, Hollywood; Walter Gary Meloon, Orlando; Jose M.
Rubio, Jr., Mascotte; Sam Arledge, Odessa; Richard May, Quincy; John Gory,
Ocala; John Yunker, Osprey; Alan Chandler, Newberry; Dannie Griffin, Panama
City; Dan Johnson, Sarasota; Richard Carroll, Rockledge; Richard Feagle,
Archer; Cherly Kluesener, Mount Dora; Steve Hatfield, Sanibel; Tommy Pippin,
Panama City; Bob Mercer, Orlando; William Cowherd, Edgewater; Laura Mitchell,
Cantonment; Tim Loughran, Oviedo; Jim Rackley, Jr., Tallahassee; Lloyd Johnson
Sarber, III of Marks Gray, P.A., Jacksonville; Tim Barter, Bradenton; Nate
Oglesby, Winter Garden; Jim Dietrich, Saint Cloud; Jo-Ann Taylor, Islamorada;
Tim Dozier, Zephyrhills; Sandrine Kouyessein, Port Saint Lucie; Charles G.
Fairbanks, Jr., Anthony; Grover McKee, Jr., Tallahassee; Pam Willis,
Monticello; Carolina Diaz, Naples; Bob Nelson, Saint Augustine; Kjhh Hodges,
Pompano Beach; Mike Jakubowski, North Port; Judy Powers, West Palm Beach;
Brenda C. Smith, Punta Gorda; Mike Jensen, Orlando; Kevin Wheeler, Alva;
Virginia Murphy, East Palatka; Frank Sweeney, Bradenton; Brice R. Holladay,
Jacksonville; Michelle Smith, Winter Springs; Paul Scholer, Miami; Jack Chason,
Tallahassee; James Baker, Jacksonville; Jess Dade, Ruskin; Mark De Jong,
Bradenton; Gary Kallmeyer, Haines City; Uma Lekhram, Plant City; Ralph T.
Rogers, Milton; Stephen Jones, Gainesville; Stephen Stump, Ocala; Brian
Hershberger, Ocala; Glenn Birket, Orlando; Jerry E. Pierce, Winter Park; Steven
A. Nisbet, Labelle; Jay Stees, Dunnellon; Gordon Koegler of Law Offices of
Gordon Koegler, P.A., Fort Lauderdale; Scott Marlo Newmark of Carner, Newmark
& Cohen, LLP, Fort Lauderdale; David Haase, Lakeland; Rodger Mena, Lake
City; David Batson, Jr., Tallahassee; Alan Cody, Fort Myers; Margaret Bigham,
Gulf Breeze; Terri Alba, Plant City; Susan Soverns, Hollywood; Tina M. Noll,
Dade City; Kelley Olson, Tallahassee; Roy Buncome, Fleming Island; Bob Dervaes,
Yulee; Nancy J. Goulah, Tampa; Francis Morton McDonald, Jr. of McDonald Toole
Wiggins, P.A., Orlando; Howard Gardner Butler of Butler Law Group,
Jacksonville; David Robert Heil of David R. Heil, P.A., Winter Park; James
Graber, Longwood; Jeff Godwin, Indialantic; John Doble, Odessa; James Richard
Caldwell, Jr. of Rumberger Kirk & Caldwell, P.A., Tampa; Charles Henry
Baumberger of Rossman, Baumberger, Reboso & Spier, P.A., Miami; Spencer Hal
Silverglate of Clarke Silverglate, P.A., Miami; Tara C.F. Ryan, PhRMA, Washington,
District of Columbia; J. David Williams, Progressive Insurance, Mayfield
Village, Ohio; James M. Graber, Apopka; Jonathan Moore, Winter Park; Robert N.
LaFontaine, Fort Myers; Lynn Hileman, Jacksonville Beach; Mikaela Olsen, Winter
Garden; Debra Kneiss, Dania Beach; Terry Cole of Gunster, Yoakley &
Stewart, P.A., Tallahassee; Wendy Frank Lumish of Bowman and Brooke LLP, on
behalf of Florida Attorneys of Bowman and Brooke LLP, Coral Gables; Mark Hicks
and Mary Joanna Gniadek of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, on
behalf of The Doctors Company; Douglas Malcolm McIntosh and Kimberly Kanoff
Berman of McIntosh, Sawran & Cartaya, P.A., Fort Lauderdale; Dana Brooks
Cooper of Barrett, Fasig & Brooks, Tallahassee; Sean Christopher Domnick of
Domnick Cunningham & Whalen, Palm Beach Gardens; Michael John Thomas of
Pennington P.A., Tallahassee; Brian Orr Sutter of All Injuries Law Firm, PA,
Port Charlotte; Thomas Stoneham Edwards, Jr. of Edwards & Ragatz, P.A.,
Jacksonville, and Courtney Kneece Grimm of Bedell, Dittmar, Devault, Pillans
& Coxe, P.A., Jacksonville, and Thomas Edward Bishop of Tanner Bishop,
Jacksonville, on behalf of The Trial Lawyers Section of The Florida Bar; Gary
M. Farmer, Sr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman P.L., Fort
Lauderdale; Howard Coleman Coker of Coker, Schickel, Sorenson, Posgay,
Camerlengo & Iracki, P.A., Jacksonville; Joseph B. Jones of Shapiro Law
Group, Bradenton; Jonathan Adam Huth of Murphy Anderson, Jacksonville; Lawton
R. Graves of Murphy Anderson, Jacksonville; Nicole Tucker Melvani of Murphy
Anderson, Jacksonville; Davis Daniel Balz of Murphy Anderson, Jacksonville;
Gerald Anthony Giurato of Murphy Anderson, Jacksonville; Niels Murphy of Murphy
Anderson, Jacksonville; William Newton Shepherd of Holland & Knight LLP,
West Palm Beach; Gregory Robert Miller of Beggs & Lane RLLP, Tallahassee,
Pamela Cothran Marsh of Berger Singerman, LLP, Tallahassee, A. Brian Albritton
of Phelps Dunbar, Tampa, Marcos Daniel Jimenez D’Clouet of McDermitt Will &
Emery, LLP, Miami, Neal Russell Sonnett of Neal R. Sonnett, P.A., Miami, James
E. Felman of Kynes Markman & Felman, Tampa, Michael S. Pasano of Carlton
Fields Jorden Burt, Miami, and Bruce Martin Lyons of Law Offices of Bruce M.
Lyons, Fort Lauderdale; Nathaniel Edward Green of Nathaniel E. Green, P.A.,
Fort Lauderdale; John Allen Attaway, Jr., Publix Super Markets, Inc., Lakeland;
T. Rankin Terry, Jr., Fort Myers; Henry Salas and David Orestes Caballero of
Cole Scott & Kissane, P.A., Miami, on behalf of Cole, Scott & Kissane,
P.A.; Kurt Eugene Lee of Kurt E. Lee, PL, Sarasota; Cecil Pearce, Tallahassee,
on behalf of Florida Insurance Council; Daniel A. Murphy of Shapiro, Goldman,
Babboni & Walsh, Bradenton, on behalf of Shapiro, Goldman, Babboni &
Walsh; George N. Meros, Jr. and Andy Velosy Bardos of GrayRobinson, P.A.,
Tallahassee, and William W. Large of Florida Justice Reform Institute,
Tallahassee, on behalf of Florida Justice Reform Institute; Erin O’Dell
O’Brien, Jacksonville, on behalf of CSX Transportation, Inc.; Craig S. Hudson
of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale; Anthony
Hunter Quackenbush of Kelley Uustal Trial Attorneys, Fort Lauderdale; James
William Guarnieri, Jr. of Guarnieri Law Firm, PA, Brandon; Troy Alan Rafferty
of Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A., Pensacola, on
behalf of Florida Justice Association; Patrick Stephen McArdle of Grossman Roth
& Partridge on behalf of Grossman Roth Yaffa & Cohen, P.A., Sarasota;
Hayden Patrick O’Byrne of K&L Gates, LLP, Miami; Susan K. Spurgeon of
Pennington, P.A., Tampa; Charles M. Trippe, Jr., Jacksonville, on behalf of
Carol Ann Licko, Raquel A. Rodriguez, Paul C. Huck, Jr., Jason B. Gonzalez,
Erik M. Figlio, and Jesse M. Panuccio; E. G. (Gerry) Morris, Austin, Texas,
Bruce Lyons, Fort Lauderdale, Neal R. Sonnett, Miami, and Jeffrey S. Weiner,
Miami, on behalf of the National Association of Criminal Defense Lawyers;
Julianne M. Holt, Tampa, on behalf of the Florida Public Defender’s
Association, Inc.; Rodolfo Sorondo, Jr. of Holland & Knight LLP, West Palm
Beach, Roy Carroll Young of Young, Vanassenderp & Qualls, P.A.,
Tallahassee, and Bill Herrle, Tallahassee, on behalf of The National Federation
of Independent Business/Florida and The Florida Chamber of Commerce; John
Fletcher Romano of Romano Law Group, West Palm Beach, on behalf of Romano Law
Group; Patrick Alexander Gillen of Newsome Melton, Orlando; William Carl
Ourand, Jr. of Newsome Melton, Orlando; Laurie J. Briggs, West Palm Beach;
Diana Santa Maria of Law Offices of Diana Santa Maria, P.A., Fort Lauderdale;
Todd Jordan Michaels of the Haggard Law Firm, Coral Gables, on behalf of Todd
Jordan Michaels and The Haggard Law Firm; Seth Elliot Miller, Tallahassee, on
behalf of Innocence Project of Florida, Inc.; Leslie Mitchell Kroeger of Cohen
Milstein Sellers & Toll PLLC, Palm Beach Gardens; Robert F. Spohrer of
Spohrer & Dodd, Jacksonville; Robert Mark Brochin of Morgan, Lewis &
Bockius LLP, Miami; David J. Halberg of David J. Halberg, P.A., West Palm
Beach; Belvin Perry, Jr. of Morgan & Morgan, Orlando; Corinne Cotton Hodak
of Corinne C. Hodak, P.A., Jacksonville; Robert Frank Melton, II of Newsome
Melton, Orlando; Robert Eric Bilik of McGuireWoods LLP, Jacksonville, on behalf
of McGuireWoods LLP; Michael Jason Winer of the Law Office of Michael J. Winer,
Tampa, on behalf of the Workers’ Compensation Section of The Florida Bar;
Timothy Michael Moore of Shook Hardy & Bacon, Miami; Mark Kenneth Delegal
of Holland & Knight LLP, Tallahassee, on behalf of Chubb, Cook Group
Incorporated, The Dow Chemical Company, Eli Lilly and Company, Glaxosmithkline
LLC, Metlife, Inc., Novo Nordisk Inc., Smiths Group, State Farm Mutual
Automobile Insurance Company, Walgreens, Zimmer Biomet, and American Tort
Reform Association; Tiffany Roddenberry of Holland & Knight, Tallahassee,
on behalf of American Coatings Association, Inc., Astrazeneca Pharmaceuticals
LP, Boston Scientific Corporation, Brunswick Corporation (Boston Whaler, Sea
Ray, Brunswick Commercial & Government Products, and Mercury Marine),
Caterpillar, Inc., CSX Transportation, Inc., Deere & Company, Eli Lilly and
Company, Ford Motor Company, Georgia-Pacific LLC, Hyundai Motor America,
Johnson & Johnson, Merck & Company, Inc., Norfolk Southern Corporation,
Novartis Pharmaceuticals Corporation, and Pfizer, Inc.; Matthew Kerry
Schwencke, West Palm Beach, on behalf of Searcy Denney Scarola Barnhart &
Shipley, PA; Gregory William Coleman of Critton Luttier and Coleman, West Palm
Beach, on behalf of Past Presidents of The Florida Bar and other members of The
Florida Bar; Dan Cytryn of Law Offices of Cytryn & Velazquez, P.A., Coral
Springs; Eric Harald Faddis and Tiffany Marie Faddis of Faddis & Faddis,
P.A., Orlando; Walter Gordon Campbell, Jr. of Krupnick Campbell Malone Buser Slama
Hancock Liberman, P.A., Fort Lauderdale; Brian Christopher Costa of Alvarez,
Carbonell, Feltman & Da Silva P.L., Coral Gables; Stephen George
Charpentier of Charpentier Law Firm, P.A., Melbourne; Edward Vincent Ricci of
Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach; James Read
Holland, II of Harrell & Harrell, P.A., Jacksonville; Pete Hutchison Brock,
II of Brock Law, LLC, Wesley Chapel; Daniel H. Perez of Alvarez, Carbonell,
Feltman & Da Silva P.L., Coral Gables; Robert D. Melton of Robert D. Melton
P.A., Orlando; Jack Roy Reiter of GrayRobinson, P.A., Miami; Stephen Ashley
Barnes of Barnes Trial Group, Tampa, on behalf of Stephen Ashley Barnes and
Barnes Trial Group; Howard Kraft Pita of Pita Weber Del Prado, Miami; William
Patrick Geraghty and Daniel Francis Molony of Shook Hardy & Bacon L.L.P.,
Miami, on behalf of the Florida Attorneys of Shook, Hardy & Bacon L.L.P.;
Gregory Andrew Reed of Simon, Reed & Salazar, P.A., Miami, on behalf of
Simon Reed & Salazar, P.A.; Charles Emmanuel Fombrun of Alvarez, Carbonell,
Feltman & Da Silva P.L., Coral Gables; Morgan Wood Streetman of Streetman
Law, Tampa; Ryan Sean LeMontang of Alvarez, Carbonell, Feltman & Da Silva
P.L., Coral Gables; Stephen Eugene Mahle of Stephen Mahle, P.A., Boca Raton; Elizabeth
Walker Finizio of Finizio & Finizio, PA, Fort Lauderdale; Stephen Watrel of
Steve Watrel, P.A., Jacksonville; Julie Braman Kane of Colson Hicks Eidson,
Coral Gables; Christina Marrero of Alvarez, Carbonell, Feltman & Da Silva
P.L., Coral Gables; The Honorable Garrett Richter, President Pro Tempore, The
Florida Senate, Tallahassee; Robert L. Simmons, Saint Petersburg, on behalf of
Allstate Insurance Company; Kenneth Andrew Stoller, Washington, District of
Columbia, on behalf of American Insurance Association; The Honorable Larry
Metz, The Florida House of Representatives, Tallahassee; David E. Bright,
Washington, District of Columiba, on behalf of Alliance of Automobile
Manufacturers and Charles H. Haake, Washington, District of Columbia, on behalf
of Association of Global Automakers; Bryan Scott Gowdy of Creed & Gowdy,
P.A., Jacksonville; Carlos Jesus Martinez, Public Defender, and John Eddy
Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, on
behalf of The Florida Public Defender Association, Inc., Responding with
Comments.
(PER
CURIAM.) We have for consideration the regular-cycle report1 of The Florida Bar’s Code and Rules
of Evidence Committee (Committee), concerning legislative changes to the
Florida Evidence Code and to section 766.102, Florida Statutes (2012). We have
jurisdiction,2 and, as discussed below, we decline
to adopt, to the extent they are procedural, any of the legislative changes
addressed in the Committee’s report.
CURIAM.) We have for consideration the regular-cycle report1 of The Florida Bar’s Code and Rules
of Evidence Committee (Committee), concerning legislative changes to the
Florida Evidence Code and to section 766.102, Florida Statutes (2012). We have
jurisdiction,2 and, as discussed below, we decline
to adopt, to the extent they are procedural, any of the legislative changes
addressed in the Committee’s report.
BACKGROUND
Prior
Amendments to the Florida Evidence Code
Amendments to the Florida Evidence Code
It
has been this Court’s policy to adopt, to the extent they are procedural,
provisions of the Florida Evidence Code as they are enacted and amended by the
Legislature.3 However, on occasion the Court has
declined to adopt legislative changes to the Evidence Code because of
significant concerns about the amendments, including concerns about the constitutionality
of an amendment.4 In addition, the Court has declined
to follow the Committee’s recommendation to adopt, to the extent it may be
procedural, legislation creating section 766.102(12), Florida Statutes, which
is not a part of the Florida Evidence Code. See In re Amends. to Fla.
Evidence Code, 144 So. 3d 536, 537 (Fla. 2014).
has been this Court’s policy to adopt, to the extent they are procedural,
provisions of the Florida Evidence Code as they are enacted and amended by the
Legislature.3 However, on occasion the Court has
declined to adopt legislative changes to the Evidence Code because of
significant concerns about the amendments, including concerns about the constitutionality
of an amendment.4 In addition, the Court has declined
to follow the Committee’s recommendation to adopt, to the extent it may be
procedural, legislation creating section 766.102(12), Florida Statutes, which
is not a part of the Florida Evidence Code. See In re Amends. to Fla.
Evidence Code, 144 So. 3d 536, 537 (Fla. 2014).
Legislative
Changes at Issue
Changes at Issue
The
legislative changes at issue in this case are those enacted since this Court
considered the Committee’s 2013 regular-cycle report. See In re Amends. to
Fla. Evidence Code, 144 So. 3d at 536. In this case, by a vote of 16-14, a
majority of the Committee recommends that the Court not adopt, to the extent it
is procedural, chapter 2013-107, sections 1 and 2, Laws of Florida (Daubert
Amendment), which amended sections 90.702 (Testimony by experts) and 90.704
(Basis of opinion testimony by experts), Florida Statutes (2012), of the
Evidence Code to replace the Frye5 standard for admitting expert opinion
evidence with the Daubert6 standard. In addition to a separate
majority report on the Daubert Amendment, the Committee provides a
minority report urging the Court to adopt the Daubert Amendment. The
Committee also recommends, by a vote of 24-0-1, that the Court not adopt, to
the extent it is procedural, chapter 2013-108, section 2, Laws of Florida (Same
Specialty Amendment), which amended section 766.102 (Medical negligence;
standards of recovery; expert witness), Florida Statutes (2012), to require a
standard-of-care expert witness in a medical malpractice action to specialize
in the same specialty as the health care provider against whom or on whose
behalf the testimony is offered. Finally, the Committee recommends, by a vote
of 24-0-1, that the Court adopt, to the extent it is procedural, chapter
2014-200, section 1, Laws of Florida, which amended section 90.803(24), Florida
Statutes (2013) (Hearsay exceptions; availability of declarant immaterial;
Hearsay exception; statement of elderly person or disabled adult) of the
Evidence Code, the hearsay exception relating to reports of abuse by elderly
persons or disabled adults. The Board of Governors of The Florida Bar approved
the Committee’s recommendations.
legislative changes at issue in this case are those enacted since this Court
considered the Committee’s 2013 regular-cycle report. See In re Amends. to
Fla. Evidence Code, 144 So. 3d at 536. In this case, by a vote of 16-14, a
majority of the Committee recommends that the Court not adopt, to the extent it
is procedural, chapter 2013-107, sections 1 and 2, Laws of Florida (Daubert
Amendment), which amended sections 90.702 (Testimony by experts) and 90.704
(Basis of opinion testimony by experts), Florida Statutes (2012), of the
Evidence Code to replace the Frye5 standard for admitting expert opinion
evidence with the Daubert6 standard. In addition to a separate
majority report on the Daubert Amendment, the Committee provides a
minority report urging the Court to adopt the Daubert Amendment. The
Committee also recommends, by a vote of 24-0-1, that the Court not adopt, to
the extent it is procedural, chapter 2013-108, section 2, Laws of Florida (Same
Specialty Amendment), which amended section 766.102 (Medical negligence;
standards of recovery; expert witness), Florida Statutes (2012), to require a
standard-of-care expert witness in a medical malpractice action to specialize
in the same specialty as the health care provider against whom or on whose
behalf the testimony is offered. Finally, the Committee recommends, by a vote
of 24-0-1, that the Court adopt, to the extent it is procedural, chapter
2014-200, section 1, Laws of Florida, which amended section 90.803(24), Florida
Statutes (2013) (Hearsay exceptions; availability of declarant immaterial;
Hearsay exception; statement of elderly person or disabled adult) of the
Evidence Code, the hearsay exception relating to reports of abuse by elderly
persons or disabled adults. The Board of Governors of The Florida Bar approved
the Committee’s recommendations.
Consistent
with Florida Rule of Judicial Administration 2.140(b)(2), before filing its
report with the Court, the Committee published its recommendations for comment.
According to the Committee’s report, the Committee received eighty-one comments
in support of the recommendation not to adopt the Daubert Amendment. The
Committee received twenty-nine comments opposing that recommendation. The
Committee also received two comments supporting the recommendation not to adopt
the Same Specialty Amendment and no comments against that recommendation. The
Committee did not receive any comments addressing its recommendation to adopt
the changes to section 90.803(24) of the Evidence Code.
with Florida Rule of Judicial Administration 2.140(b)(2), before filing its
report with the Court, the Committee published its recommendations for comment.
According to the Committee’s report, the Committee received eighty-one comments
in support of the recommendation not to adopt the Daubert Amendment. The
Committee received twenty-nine comments opposing that recommendation. The
Committee also received two comments supporting the recommendation not to adopt
the Same Specialty Amendment and no comments against that recommendation. The
Committee did not receive any comments addressing its recommendation to adopt
the changes to section 90.803(24) of the Evidence Code.
After
the Committee filed its report, the Court published the Committee’s
recommendations for comment. The Court received fifty-six comments in favor of
the Committee’s recommendation not to adopt the Daubert Amendment and
one hundred thirty-one comments in opposition to the Committee’s recommendation.7 All nine comments filed with the
Court addressing the Committee’s recommendation not to adopt the Same Specialty
Amendment support that recommendation. No comments were filed with the Court
concerning the amendments to section 90.803(24). The Committee filed a response
to the comments filed with the Court. The Court also heard oral argument in
this case.
the Committee filed its report, the Court published the Committee’s
recommendations for comment. The Court received fifty-six comments in favor of
the Committee’s recommendation not to adopt the Daubert Amendment and
one hundred thirty-one comments in opposition to the Committee’s recommendation.7 All nine comments filed with the
Court addressing the Committee’s recommendation not to adopt the Same Specialty
Amendment support that recommendation. No comments were filed with the Court
concerning the amendments to section 90.803(24). The Committee filed a response
to the comments filed with the Court. The Court also heard oral argument in
this case.
After
considering the numerous filings in this case, and having had the benefit of
oral argument, for the reasons discussed below, we follow the Committee’s
recommendation and decline 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. Also, as recommended by the Committee, we decline to adopt, to the
extent they are procedural, the amendments to section 766.102, Florida
Statutes, made by the Same Specialty Amendment. However, as further explained
below, we decline to follow the Committee’s recommendation to adopt the changes
made to section 90.803(24).
considering the numerous filings in this case, and having had the benefit of
oral argument, for the reasons discussed below, we follow the Committee’s
recommendation and decline 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. Also, as recommended by the Committee, we decline to adopt, to the
extent they are procedural, the amendments to section 766.102, Florida
Statutes, made by the Same Specialty Amendment. However, as further explained
below, we decline to follow the Committee’s recommendation to adopt the changes
made to section 90.803(24).
DISCUSSION
Daubert
Amendment
Amendment
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.’ ” Flanagan v. State, 625 So. 2d 827, 828
(Fla. 1993) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923)).8 In Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court
held that the Federal Rules of Evidence superseded Frye‘s general
acceptance test for the admissibility of scientific evidence. Id. at 586-87.
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.” Id.
at 589. Federal Rule of Evidence 702, as currently promulgated, intends to
ensure reliability of scientific opinion evidence with the following
requirements:
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.’ ” Flanagan v. State, 625 So. 2d 827, 828
(Fla. 1993) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923)).8 In Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United States Supreme Court
held that the Federal Rules of Evidence superseded Frye‘s general
acceptance test for the admissibility of scientific evidence. Id. at 586-87.
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.” Id.
at 589. Federal Rule of Evidence 702, as currently promulgated, intends to
ensure reliability of scientific opinion evidence with the following
requirements:
A witness who is qualified as
an expert by knowledge, skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
an expert by knowledge, skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a)
the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b)
the testimony is based on sufficient facts or data;
the testimony is based on sufficient facts or data;
(c)
the testimony is the product of reliable principles and methods; and
the testimony is the product of reliable principles and methods; and
(d)
the expert has reliably applied the principles and methods to the facts of the
case.
the expert has reliably applied the principles and methods to the facts of the
case.
Fed.
R. Evid. 702.
R. Evid. 702.
In
2013, Florida’s Legislature rejected the longstanding Frye standard and
adopted the Daubert standard and Federal Rule of Evidence 702 with two
amendments to the Evidence Code. First, the Legislature amended section 90.702
to mirror Federal Rule of Evidence 702 as follows:
2013, Florida’s Legislature rejected the longstanding Frye standard and
adopted the Daubert standard and Federal Rule of Evidence 702 with two
amendments to the Evidence Code. First, the Legislature amended section 90.702
to mirror Federal Rule of Evidence 702 as follows:
If scientific, technical, or
other specialized knowledge will assist the trier of fact in understanding the
evidence or in determining a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify about it in
the form of an opinion or otherwise, if:
other specialized knowledge will assist the trier of fact in understanding the
evidence or in determining a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify about it in
the form of an opinion or otherwise, if:
(1) The testimony is based
upon sufficient facts or data;
upon sufficient facts or data;
(2) The testimony is the
product of reliable principles and methods; and
product of reliable principles and methods; and
(3) The witness has applied
the principles and methods reliably to the facts of the case;
however, the opinion is admissible only if it can be applied to evidence at
trial.
the principles and methods reliably to the facts of the case
however, the opinion is admissible only if it can be applied to evidence at
trial
Ch.
2013-107, § 1, Laws of Fla. Next, the Legislature amended section 90.704 as
follows:
2013-107, § 1, Laws of Fla. Next, the Legislature amended section 90.704 as
follows:
The facts or data upon which
an expert bases an opinion or inference may be those perceived by, or made
known to, the expert at or before the trial. If the facts or data are of a type
reasonably relied upon by experts in the subject to support the opinion
expressed, the facts or data need not be admissible in evidence. Facts or
data that are otherwise inadmissible may not be disclosed to the jury by the proponent
of the opinion or inference unless the court determines that their probative
value in assisting the jury to evaluate the expert’s opinion substantially
outweighs their prejudicial effect.
an expert bases an opinion or inference may be those perceived by, or made
known to, the expert at or before the trial. If the facts or data are of a type
reasonably relied upon by experts in the subject to support the opinion
expressed, the facts or data need not be admissible in evidence. Facts or
data that are otherwise inadmissible may not be disclosed to the jury by the proponent
of the opinion or inference unless the court determines that their probative
value in assisting the jury to evaluate the expert’s opinion substantially
outweighs their prejudicial effect.
Ch.
2013-107, § 2, Laws of Fla.
2013-107, § 2, Laws of Fla.
The
Committee recommends the Court not adopt the Daubert Amendment, to the
extent it is procedural. In support of its recommendation, both the Committee
and commenters who support the recommendation raised what we consider “grave
constitutional concerns.” Those concerns include undermining the right to a
jury trial and denying access to the courts. While the Court does not address
the constitutionality of a statute or proposed rule within the context of a
rules case,9 the fact that there may be “grave
concerns about the constitutionality of the amendment” has been a basis
previously for the Court not adopting an amendment to the Evidence Code to the
extent it is procedural. See In re Amends. to Fla. Evidence Code, 782
So. 2d 339, 342 (Fla. 2000). Accordingly, having heard oral argument and
carefully considered the Committee’s recommendation and the numerous comments
both submitted to the Committee and filed with the Court, we decline to adopt
the Daubert Amendment to the extent that it is procedural, due to the
constitutional concerns raised, which must be left for a proper case or
controversy.
Committee recommends the Court not adopt the Daubert Amendment, to the
extent it is procedural. In support of its recommendation, both the Committee
and commenters who support the recommendation raised what we consider “grave
constitutional concerns.” Those concerns include undermining the right to a
jury trial and denying access to the courts. While the Court does not address
the constitutionality of a statute or proposed rule within the context of a
rules case,9 the fact that there may be “grave
concerns about the constitutionality of the amendment” has been a basis
previously for the Court not adopting an amendment to the Evidence Code to the
extent it is procedural. See In re Amends. to Fla. Evidence Code, 782
So. 2d 339, 342 (Fla. 2000). Accordingly, having heard oral argument and
carefully considered the Committee’s recommendation and the numerous comments
both submitted to the Committee and filed with the Court, we decline to adopt
the Daubert Amendment to the extent that it is procedural, due to the
constitutional concerns raised, which must be left for a proper case or
controversy.
Same
Specialty Amendment
Specialty Amendment
The
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,10 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.11 See ch. 2013-108, § 2, Laws
of Fla. The Committee, the Board of Governors, and all those who commented on
the Same Specialty Amendment urge the Court not to adopt that legislation, to
the extent it is procedural. Consistent with the Committee’s recommendation, we
decline to adopt the Same Specialty Amendment, for the same reasons we declined
to adopt section 766.102(12), 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. See In re Amends. to Fla. Evidence Code, 144 So. 3d at 537
(declining to adopt chapter 2011-233, section 10, Laws of Florida, creating
section 766.102(12), because of concerns that the statute “is unconstitutional,
[has] a chilling effect on the ability to obtain expert witnesses, and is
prejudicial to the administration of justice”).
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,10 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.11 See ch. 2013-108, § 2, Laws
of Fla. The Committee, the Board of Governors, and all those who commented on
the Same Specialty Amendment urge the Court not to adopt that legislation, to
the extent it is procedural. Consistent with the Committee’s recommendation, we
decline to adopt the Same Specialty Amendment, for the same reasons we declined
to adopt section 766.102(12), 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. See In re Amends. to Fla. Evidence Code, 144 So. 3d at 537
(declining to adopt chapter 2011-233, section 10, Laws of Florida, creating
section 766.102(12), because of concerns that the statute “is unconstitutional,
[has] a chilling effect on the ability to obtain expert witnesses, and is
prejudicial to the administration of justice”).
The
Committee and commenters in this case contend that requiring a standard-of-care
expert witness 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 has “a chilling effect on the ability to obtain expert
witnesses,” making it more difficult for a victim of medical negligence to
bring a medical malpractice action. This raises concerns that, like the
same-license requirement of section 766.102(12), the same-specialty requirement
limits access to courts and is prejudicial to the administration of justice. See
id.; cf. Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996)
(recognizing that “medical malpractice statutory scheme must be interpreted
liberally so as not to unduly restrict a Florida citizen’s constitutionally
guaranteed access to courts, while at the same time carrying out the
legislative policy of screening out frivolous lawsuits and defenses”).
Committee and commenters in this case contend that requiring a standard-of-care
expert witness 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 has “a chilling effect on the ability to obtain expert
witnesses,” making it more difficult for a victim of medical negligence to
bring a medical malpractice action. This raises concerns that, like the
same-license requirement of section 766.102(12), the same-specialty requirement
limits access to courts and is prejudicial to the administration of justice. See
id.; cf. Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996)
(recognizing that “medical malpractice statutory scheme must be interpreted
liberally so as not to unduly restrict a Florida citizen’s constitutionally
guaranteed access to courts, while at the same time carrying out the
legislative policy of screening out frivolous lawsuits and defenses”).
In
addition to the concerns raised by the Committee and the commenters, the
section 766.102(5)(a) same-specialty requirement and the various other section
766.102 expert-witness requirements12 are not part of chapter 90, Florida
Statutes, the Florida Evidence Code. See In re Fla. Evidence Code, 372
So. 2d 1369 (Fla. 1979) (adopting, as the Court’s rules of evidence, the
Evidence Code enacted by the Legislature, in part, to ensure that rules of
evidence were codified in one place and were no longer “derived from multiple
sources,” including case law, rules adopted by the Court, and statutes enacted
by the Legislature), clarified, In re Fla. Evidence Code, 376 So. 2d
1161 (Fla. 1979).13 Rather, the section 766.102
requirements, none of which this Court has adopted,14 are part of the legislative scheme
for medical malpractice actions codified in chapter 766, Florida Statutes.
addition to the concerns raised by the Committee and the commenters, the
section 766.102(5)(a) same-specialty requirement and the various other section
766.102 expert-witness requirements12 are not part of chapter 90, Florida
Statutes, the Florida Evidence Code. See In re Fla. Evidence Code, 372
So. 2d 1369 (Fla. 1979) (adopting, as the Court’s rules of evidence, the
Evidence Code enacted by the Legislature, in part, to ensure that rules of
evidence were codified in one place and were no longer “derived from multiple
sources,” including case law, rules adopted by the Court, and statutes enacted
by the Legislature), clarified, In re Fla. Evidence Code, 376 So. 2d
1161 (Fla. 1979).13 Rather, the section 766.102
requirements, none of which this Court has adopted,14 are part of the legislative scheme
for medical malpractice actions codified in chapter 766, Florida Statutes.
It
is likewise significant that this Court also has never adopted, to the extent it
may be procedural, the section 766.102(14), Florida Statutes (2012),
recognition of a trial court’s authority to qualify or disqualify an expert
witness in a medical malpractice case on grounds other than those specified in
section 766.102. Therefore, there is no reason for this Court to now adopt the
repeal of that legislation to the extent that repeal might impact court
procedure. Finally, we do not address the substantive/procedural issue raised
here because whether the Legislature’s amendments to section 766.102(5)(a) and
repeal of section 766.102(14) somehow run afoul of the trial court’s inherent
power or this Court’s rule-making authority must be left for a proper case or
controversy and not decided in this rules case. See In re Amends. to Fla.
Evidence Code, 782 So. 2d at 341.
is likewise significant that this Court also has never adopted, to the extent it
may be procedural, the section 766.102(14), Florida Statutes (2012),
recognition of a trial court’s authority to qualify or disqualify an expert
witness in a medical malpractice case on grounds other than those specified in
section 766.102. Therefore, there is no reason for this Court to now adopt the
repeal of that legislation to the extent that repeal might impact court
procedure. Finally, we do not address the substantive/procedural issue raised
here because whether the Legislature’s amendments to section 766.102(5)(a) and
repeal of section 766.102(14) somehow run afoul of the trial court’s inherent
power or this Court’s rule-making authority must be left for a proper case or
controversy and not decided in this rules case. See In re Amends. to Fla.
Evidence Code, 782 So. 2d at 341.
Amendments
to Section 90.803(24)
to Section 90.803(24)
Chapter
2014-200, section 1, Laws of Florida, amended section 90.803(24) (Hearsay
Exceptions; availability of declarant immaterial; Hearsay exception; statement
of elderly person or disabled adult), Florida Statutes, the hearsay exception
relating to reports of abuse by elderly persons or disabled adults. The
amendment to section 90.803(24) removes the alternative requirement that an
elderly person or disabled adult testify, only requiring that such individuals
be unavailable to do so. The Committee recommends that the Court adopt that
legislation, to the extent it is procedural.
2014-200, section 1, Laws of Florida, amended section 90.803(24) (Hearsay
Exceptions; availability of declarant immaterial; Hearsay exception; statement
of elderly person or disabled adult), Florida Statutes, the hearsay exception
relating to reports of abuse by elderly persons or disabled adults. The
amendment to section 90.803(24) removes the alternative requirement that an
elderly person or disabled adult testify, only requiring that such individuals
be unavailable to do so. The Committee recommends that the Court adopt that
legislation, to the extent it is procedural.
Notwithstanding
its recommendation, the Committee notes in its report that the statutory change
raises constitutional issues: “The amended statute would remain
unconstitutional as to testimonial[15] statements in criminal cases where
there has been no opportunity for prior cross-examination while it eliminates
(potentially) constitutionally permissible application to nontestimonial[16] statements in the criminal context
and all applicable statements in civil cases.” While the Committee concludes
that case law, including Crawford v. Washington, 541 U.S. 36 (2004), and
State v. Hosty, 944 So. 2d 255 (Fla. 2006), imposes the requirement of
an opportunity for cross-examination regarding testimonial statements in
criminal cases, we decline to adopt this amendment, to the extent it is
procedural, in light of constitutional concerns. See In re Amendments to
Fla. Evidence Code, 782 So. 2d at 342 (declining to adopt chapter 98-2,
section 1, Laws of Florida, amending section 90.803(22), Florida Statutes,
which allows the admission of former testimony although the declarant is
available as witness, in part because of concerns about its constitutionality).
its recommendation, the Committee notes in its report that the statutory change
raises constitutional issues: “The amended statute would remain
unconstitutional as to testimonial[15] statements in criminal cases where
there has been no opportunity for prior cross-examination while it eliminates
(potentially) constitutionally permissible application to nontestimonial[16] statements in the criminal context
and all applicable statements in civil cases.” While the Committee concludes
that case law, including Crawford v. Washington, 541 U.S. 36 (2004), and
State v. Hosty, 944 So. 2d 255 (Fla. 2006), imposes the requirement of
an opportunity for cross-examination regarding testimonial statements in
criminal cases, we decline to adopt this amendment, to the extent it is
procedural, in light of constitutional concerns. See In re Amendments to
Fla. Evidence Code, 782 So. 2d at 342 (declining to adopt chapter 98-2,
section 1, Laws of Florida, amending section 90.803(22), Florida Statutes,
which allows the admission of former testimony although the declarant is
available as witness, in part because of concerns about its constitutionality).
CONCLUSION
Accordingly,
for the forgoing reasons, we decline to adopt, to the extent they are
procedural, chapters 2013-107, sections 1 and 2; 2013-108, section 2; and
2014-200, section 1, Laws of Florida.
for the forgoing reasons, we decline to adopt, to the extent they are
procedural, chapters 2013-107, sections 1 and 2; 2013-108, section 2; and
2014-200, section 1, Laws of Florida.
It
is so ordered. (LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs. LAWSON, J., did not participate.)
is so ordered. (LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs. LAWSON, J., did not participate.)
__________________
(POLSTON,
J., concurring in part and dissenting in part.) I respectfully dissent because,
unlike the majority, I would adopt the Daubert standard as the
Legislature amended the Florida Evidence Code in 2013.17 The majority rejects replacing the Frye
standard with the Daubert standard and gives its reason for doing so as
“grave constitutional concerns” about the Daubert standard, including
undermining the right to a jury trial and denying access to courts. However,
the United States Supreme Court decided Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), in 1993, and the standard has
been routinely applied in federal courts ever since. The clear majority of
state jurisdictions also adhere to the Daubert standard. See 1 McCormick
on Evidence § 13 (7th ed. June 2016 Supp.). In fact, there are 36 states
that have rejected Frye in favor of Daubert to some extent. See
Charles Alan Wright & Victor Gold, 29 Federal Practice and Procedure
§ 6267, at 308-09 n.15 (2016). Has the entire federal court system for the last
23 years as well as 36 states denied parties’ rights to a jury trial and access
to courts? Do only Florida and a few other states have a constitutionally sound
standard for the admissibility of expert testimony? Of course not.
J., concurring in part and dissenting in part.) I respectfully dissent because,
unlike the majority, I would adopt the Daubert standard as the
Legislature amended the Florida Evidence Code in 2013.17 The majority rejects replacing the Frye
standard with the Daubert standard and gives its reason for doing so as
“grave constitutional concerns” about the Daubert standard, including
undermining the right to a jury trial and denying access to courts. However,
the United States Supreme Court decided Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), in 1993, and the standard has
been routinely applied in federal courts ever since. The clear majority of
state jurisdictions also adhere to the Daubert standard. See 1 McCormick
on Evidence § 13 (7th ed. June 2016 Supp.). In fact, there are 36 states
that have rejected Frye in favor of Daubert to some extent. See
Charles Alan Wright & Victor Gold, 29 Federal Practice and Procedure
§ 6267, at 308-09 n.15 (2016). Has the entire federal court system for the last
23 years as well as 36 states denied parties’ rights to a jury trial and access
to courts? Do only Florida and a few other states have a constitutionally sound
standard for the admissibility of expert testimony? Of course not.
As
a note to the federal rule of evidence explains, “[a] review of the caselaw
after Daubert shows that the rejection of expert testimony is the
exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s note to
2000 amendment. “Daubert did not work a ‘seachange over federal evidence
law,’ and ‘the trial court’s role as gatekeeper is not intended to serve as a
replacement for the adversary system.’ ” Id. (quoting United States
v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996)).
a note to the federal rule of evidence explains, “[a] review of the caselaw
after Daubert shows that the rejection of expert testimony is the
exception rather than the rule.” Fed. R. Evid. 702 advisory committee’s note to
2000 amendment. “Daubert did not work a ‘seachange over federal evidence
law,’ and ‘the trial court’s role as gatekeeper is not intended to serve as a
replacement for the adversary system.’ ” Id. (quoting United States
v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996)).
Furthermore,
I know of no reported decisions that have held that the Daubert standard
violates the constitutional guarantees of a jury trial and access to courts. To
the contrary, there is case law holding that the Daubert standard does
not violate the constitution. See, e.g., Junk v. Terminix Int’l Co., 628
F.3d 439, 450 (8th Cir. 2010) (rejecting legal merit of the constitutional
claim “that the district court violated [appellant’s] Seventh Amendment right
to a jury trial by improperly weighing evidence in the course of its Daubert
rulings” and explaining that “Junk does not cite any case for the notion that a
proper Daubert ruling violates a party’s right to a jury trial”); E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)
(rejecting claim “that allowing the trial judge to assess the reliability of
expert testimony violates [the parties’] federal and state constitutional
rights to a jury trial by infringing upon the jury’s inherent authority to
assess the credibility of witnesses and the weight to be given their
testimony”); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43
(1997) (rejecting “argument that because the granting of summary judgment in
this case was ‘outcome determinative,’ it should have been subjected to a more
searching standard of review” and explaining that, while “disputed issues of
fact are resolved against the moving party[,] . . . the question of
admissibility of expert testimony is not such an issue of fact”).
I know of no reported decisions that have held that the Daubert standard
violates the constitutional guarantees of a jury trial and access to courts. To
the contrary, there is case law holding that the Daubert standard does
not violate the constitution. See, e.g., Junk v. Terminix Int’l Co., 628
F.3d 439, 450 (8th Cir. 2010) (rejecting legal merit of the constitutional
claim “that the district court violated [appellant’s] Seventh Amendment right
to a jury trial by improperly weighing evidence in the course of its Daubert
rulings” and explaining that “Junk does not cite any case for the notion that a
proper Daubert ruling violates a party’s right to a jury trial”); E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)
(rejecting claim “that allowing the trial judge to assess the reliability of
expert testimony violates [the parties’] federal and state constitutional
rights to a jury trial by infringing upon the jury’s inherent authority to
assess the credibility of witnesses and the weight to be given their
testimony”); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43
(1997) (rejecting “argument that because the granting of summary judgment in
this case was ‘outcome determinative,’ it should have been subjected to a more
searching standard of review” and explaining that, while “disputed issues of
fact are resolved against the moving party[,] . . . the question of
admissibility of expert testimony is not such an issue of fact”).
Accordingly,
the majority’s and the committee’s “grave constitutional concerns” regarding
the Daubert standard are unfounded. We should adopt the Daubert
standard as amended in the Florida Evidence Code by the Legislature in 2013.
(CANADY, J., concurs.)
the majority’s and the committee’s “grave constitutional concerns” regarding
the Daubert standard are unfounded. We should adopt the Daubert
standard as amended in the Florida Evidence Code by the Legislature in 2013.
(CANADY, J., concurs.)
__________________
1See
Fla. R. Jud. Admin. 2.140(b).
Fla. R. Jud. Admin. 2.140(b).
2See
art. V, § 2(a), Fla. Const.
art. V, § 2(a), Fla. Const.
3See
In re Amends. to Fla. Evidence Code, 782 So. 2d 339, 342 (Fla.
2000) (recognizing Court’s policy to adopt amendments to the Code to the extent
they are procedural, but following Committee’s recommendation not to adopt one
amendment) (citing In re Fla. Evidence Code, 372 So. 2d 1369 (Fla. 1979)
(adopting Evidence Code enacted by Legislature to the extent it is procedural),
clarified, In re Fla. Evidence Code, 376 So. 2d 1161 (Fla. 1979)); see
also In re Amends. to Fla. Evidence Code, 53 So. 3d 1019 (Fla. 2011); In
re Amends. to Fla. Evidence Code, 960 So. 2d 762 (Fla. 2007); In re
Amends. to Fla. Evidence Code — Section 90.104, 914 So. 2d 940 (Fla.
2005); Amends. to Fla. Evidence Code, 891 So. 2d 1037 (Fla. 2004); In
re Amends. to Fla. Evidence Code, 825 So. 2d 339 (Fla. 2002); In re Fla.
Evidence Code, 675 So. 2d 584 (Fla. 1996); In re Fla. Evidence Code,
638 So. 2d 920 (Fla. 1993); In re Amend. of Fla. Evidence Code, 497 So.
2d 239 (Fla. 1986); In re Amend. of Fla. Evidence Code, 404 So. 2d 743
(Fla. 1981).
In re Amends. to Fla. Evidence Code, 782 So. 2d 339, 342 (Fla.
2000) (recognizing Court’s policy to adopt amendments to the Code to the extent
they are procedural, but following Committee’s recommendation not to adopt one
amendment) (citing In re Fla. Evidence Code, 372 So. 2d 1369 (Fla. 1979)
(adopting Evidence Code enacted by Legislature to the extent it is procedural),
clarified, In re Fla. Evidence Code, 376 So. 2d 1161 (Fla. 1979)); see
also In re Amends. to Fla. Evidence Code, 53 So. 3d 1019 (Fla. 2011); In
re Amends. to Fla. Evidence Code, 960 So. 2d 762 (Fla. 2007); In re
Amends. to Fla. Evidence Code — Section 90.104, 914 So. 2d 940 (Fla.
2005); Amends. to Fla. Evidence Code, 891 So. 2d 1037 (Fla. 2004); In
re Amends. to Fla. Evidence Code, 825 So. 2d 339 (Fla. 2002); In re Fla.
Evidence Code, 675 So. 2d 584 (Fla. 1996); In re Fla. Evidence Code,
638 So. 2d 920 (Fla. 1993); In re Amend. of Fla. Evidence Code, 497 So.
2d 239 (Fla. 1986); In re Amend. of Fla. Evidence Code, 404 So. 2d 743
(Fla. 1981).
4See,
e.g., In re Amends. to Fla. Evidence Code, 144 So. 3d 536 (Fla. 2014)
(declining to follow the Committee’s recommendation to adopt section 90.5021,
Florida Statutes (2014), which establishes a fiduciary lawyer-client
privilege); In re Amends. to Fla. Evidence Code, 782 So. 2d at 341-42
(declining to adopt amendments to section 90.803(22), Florida Statutes (1997),
which allows the admission of former testimony although the declarant is
available as a witness, in part because of concerns about its
constitutionality).
e.g., In re Amends. to Fla. Evidence Code, 144 So. 3d 536 (Fla. 2014)
(declining to follow the Committee’s recommendation to adopt section 90.5021,
Florida Statutes (2014), which establishes a fiduciary lawyer-client
privilege); In re Amends. to Fla. Evidence Code, 782 So. 2d at 341-42
(declining to adopt amendments to section 90.803(22), Florida Statutes (1997),
which allows the admission of former testimony although the declarant is
available as a witness, in part because of concerns about its
constitutionality).
5Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923); Bundy v. State, 471
So. 2d 9 (Fla. 1985) (adopting Frye standard); Stokes v. State,
548 So. 2d 188 (Fla. 1989) (same).
v. United States, 293 F. 1013 (D.C. Cir. 1923); Bundy v. State, 471
So. 2d 9 (Fla. 1985) (adopting Frye standard); Stokes v. State,
548 So. 2d 188 (Fla. 1989) (same).
6Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
7Of
those one hundred thirty-one comments, seventy-seven are form emails from
“small business owners” repeating the same request that the Court “retain the Daubert
expert witness standard that the Florida legislature passed in 2013.”
those one hundred thirty-one comments, seventy-seven are form emails from
“small business owners” repeating the same request that the Court “retain the Daubert
expert witness standard that the Florida legislature passed in 2013.”
8The
Court is aware that on October 20, 2016, the District of Columbia Court of
Appeals, in Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016), rejected
application of the Frye standard for the admissibility of scientific
testimony in favor of Federal Rule of Evidence 702.
Court is aware that on October 20, 2016, the District of Columbia Court of
Appeals, in Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016), rejected
application of the Frye standard for the admissibility of scientific
testimony in favor of Federal Rule of Evidence 702.
9See,
e.g., In re Amends. to Fla. Evidence Code, 144 So. 3d at 538
(Pariente, J., concurring in part and dissenting in part); In re Amend. to
Fla. Evidence Code, 825 So. 2d at 341; In re Amends. to Fla. Evidence
Code, 782 So. 2d at 341; In re Amends. to Fla. Rules of Crim. Pro. —
Final Arguments, 957 So. 2d 1164, 1167 (Fla. 2007).
e.g., In re Amends. to Fla. Evidence Code, 144 So. 3d at 538
(Pariente, J., concurring in part and dissenting in part); In re Amend. to
Fla. Evidence Code, 825 So. 2d at 341; In re Amends. to Fla. Evidence
Code, 782 So. 2d at 341; In re Amends. to Fla. Rules of Crim. Pro. —
Final Arguments, 957 So. 2d 1164, 1167 (Fla. 2007).
10Prior
to the Same Specialty Amendment, section 766.102(5)(a), Florida Statutes,
required an expert testifying about the prevailing standard of care in a
medical malpractice action to (1) specialize in the same specialty as the
health care provider against whom or on whose behalf the testimony is offered,
or (2) specialize in a similar specialty that includes the evaluation,
diagnosis, or treatment of the medical condition that is the subject of the
claim and have the prior experience treating similar patients. The Same
Specialty Amendment removed the similar specialty option for qualifying a
standard-of-care expert witness from the statute.
to the Same Specialty Amendment, section 766.102(5)(a), Florida Statutes,
required an expert testifying about the prevailing standard of care in a
medical malpractice action to (1) specialize in the same specialty as the
health care provider against whom or on whose behalf the testimony is offered,
or (2) specialize in a similar specialty that includes the evaluation,
diagnosis, or treatment of the medical condition that is the subject of the
claim and have the prior experience treating similar patients. The Same
Specialty Amendment removed the similar specialty option for qualifying a
standard-of-care expert witness from the statute.
11Before
its repeal, section 766.102(14), Florida Statutes, provided that section
766.102 did “not limit the power of the trial court to disqualify or qualify an
expert witness on grounds other than the qualifications in this section.”
its repeal, section 766.102(14), Florida Statutes, provided that section
766.102 did “not limit the power of the trial court to disqualify or qualify an
expert witness on grounds other than the qualifications in this section.”
12See,
e.g., § 766.102(5)(b), Fla. Stat. (2016) (providing requirements
for expert witnesses testifying on the standard of care for general
practitioners); § 766.102(6), Fla. Stat. (providing the requirements for expert
witnesses testifying on the standard of care for nurses and other medical
support staff); § 766.102(7), Fla. Stat. (providing the requirements for expert
witnesses testifying on the standard of care as to administrative and other
nonclinical issues in actions against hospitals or other medical facilities); §
766.102(9), Fla. Stat. (providing the requirements for expert witnesses
testifying on the standard of care for emergency room physicians).
e.g., § 766.102(5)(b), Fla. Stat. (2016) (providing requirements
for expert witnesses testifying on the standard of care for general
practitioners); § 766.102(6), Fla. Stat. (providing the requirements for expert
witnesses testifying on the standard of care for nurses and other medical
support staff); § 766.102(7), Fla. Stat. (providing the requirements for expert
witnesses testifying on the standard of care as to administrative and other
nonclinical issues in actions against hospitals or other medical facilities); §
766.102(9), Fla. Stat. (providing the requirements for expert witnesses
testifying on the standard of care for emergency room physicians).
13See
also Charles W. Ehrhardt, Ehrhardt’s Florida Evidence §
102.1 (2016 ed.) (recognizing that Court adopts, to the extent procedural,
provisions of the Evidence Code as they are adopted and amended by the
Legislature “to avoid having the evidence rules scattered in piece-meal fashion
in various statutes and rules of procedures” and to have “a single
comprehensive set of rules”).
also Charles W. Ehrhardt, Ehrhardt’s Florida Evidence §
102.1 (2016 ed.) (recognizing that Court adopts, to the extent procedural,
provisions of the Evidence Code as they are adopted and amended by the
Legislature “to avoid having the evidence rules scattered in piece-meal fashion
in various statutes and rules of procedures” and to have “a single
comprehensive set of rules”).
14Prior
to the Committee’s 2013 recommendation to adopt section 766.102(12), see In
re Amends. to the Fla. Evidence Code, 144 So. 3d at 536, the Committee had
only made recommendations to the Court concerning legislative changes to the
Evidence Code. The Committee had never made recommendations concerning any of
the section 766.102 expert-witness requirements. See Ehrhardt, supra,
at § 102.1 (as reporter and primary drafter of the Florida Evidence Code and
first chair of the Committee, recognizing that Committee’s recommendation
concerning the section 766.102(12) expert-witness requirement “was unique”
because “[s]ince its inception, the Committee believed its jurisdiction was limited
to provisions of the Evidence Code” and noting that, for example, “the many
amendments to the accident report privilege in section 316.066 and the rape
shield statute in section 794.022 were never within scope of the [C]ommittee’s
recommendations”).
to the Committee’s 2013 recommendation to adopt section 766.102(12), see In
re Amends. to the Fla. Evidence Code, 144 So. 3d at 536, the Committee had
only made recommendations to the Court concerning legislative changes to the
Evidence Code. The Committee had never made recommendations concerning any of
the section 766.102 expert-witness requirements. See Ehrhardt, supra,
at § 102.1 (as reporter and primary drafter of the Florida Evidence Code and
first chair of the Committee, recognizing that Committee’s recommendation
concerning the section 766.102(12) expert-witness requirement “was unique”
because “[s]ince its inception, the Committee believed its jurisdiction was limited
to provisions of the Evidence Code” and noting that, for example, “the many
amendments to the accident report privilege in section 316.066 and the rape
shield statute in section 794.022 were never within scope of the [C]ommittee’s
recommendations”).
15“Testimonial”
statements include but are not limited to “material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially” as well as extrajudicial statements
“contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions.” Crawford v. Washington,
541 U.S. 36, 51-52 (2004).
statements include but are not limited to “material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially” as well as extrajudicial statements
“contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions.” Crawford v. Washington,
541 U.S. 36, 51-52 (2004).
16“Nontestimonial”
statements include those that, objectively considered, were given to, for
example, police or a 911 operator describing what was actually happening at the
time and to enable police assistance to meet an ongoing emergency. See Davis
v. Washington, 547 U.S. 813, 826-27 (2006).
statements include those that, objectively considered, were given to, for
example, police or a 911 operator describing what was actually happening at the
time and to enable police assistance to meet an ongoing emergency. See Davis
v. Washington, 547 U.S. 813, 826-27 (2006).
17I
agree with the majority’s decision to decline to adopt the same specialty and
hearsay exception amendments.
agree with the majority’s decision to decline to adopt the same specialty and
hearsay exception amendments.
* *
*
*