By Stephen Mahle, Esq.
The following is excerpted from Sections 13.1 and 13.40 of Business Litigation Expert Testimony in Florida State and Federal Courts, a chapter in "Business Litigation in Florida," (Fla. Bar, 4th ed., 2001). By its nature, it references materials from other sections of the Chapter from which it is excerpted that are not also excerpted. In particular, the second half of chapter 9 and all of chapter 10 rely on discussions of hypothesis testing and error rate analysis, the scientific terms of art that are arguably the inspiration for Daubert's testing and error rate factors. Lawyers unfamiliar with those statistical notions can omit that discussion without loss of continuity.
It is current as of the middle of 2000 and makes no attempt to be exhaustive.
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Expert Testimony in Florida State Courts
A. [§13.1] Florida State Courts
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Florida [is] a "Frye state." The Florida Supreme Court has considered Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), found it wanting, and reaffirmed Florida's reliance on the Frye standard Brim v. State, 695 So.2d 268, 271 (Fla. 1997) (holding that "despite the federal adoption of a more lenient standard in Daubert . . . we have maintained the higher standard of reliability as dictated by Frye").
Two things are interesting about the Brim decision. The first is that it is far from clear that Daubert is a more lenient standard for admissibility of expert testimony than the Frye standard. If anything, there seems to be at least anecdotal evidence that Daubert, in practice, sets a stricter standard than the Frye standard that it displaced in so many jurisdictions.
The second thing that is interesting about this decision is that, having rejected Daubert, Florida courts are applying Frye in ways that make Florida's Frye standard look very much like the federal Daubert standard. In particular, the Florida courts have applied all of Daubert's well-known "four factors" to decisions on admissibility of expert testimony and in doing so, the Florida state courts appear to be applying the same strict attention to the scientific and statistical bases of the expert testimony before them as the federal courts apply.
VI. [§13.40] Florida's Frye Standard
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The admission of novel scientific evidence in Florida state courts involves a four-part test articulated in Ramirez v. State, 651 So.2d 1164 (Fla. 1995): (1) "the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue;" (2) "the trial judge must decide whether the expert's testimony is based on a scientific principle or discovery that is `sufficiently established to have gained general acceptance in the particular field in which it belongs.' Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.1923)"; (3) the trial judge must "determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue;" and, (4) "the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert's opinion, which it may either accept or reject." 651 So.2d at 1167. The court noted that the first three steps are for the trial judge alone.
Each part of the four-part Ramirez test must be satisfied for the expert's testimony to be admitted. That notwithstanding, the court singled out the Frye inquiry required by the second step as being of particular importance, noting that "[t]he principal inquiry under the Frye test is whether the scientific theory or discovery from which an expert derives an opinion is reliable." 651 So.2d at 1167.
Frye focuses on whether the science that underlies the proffered expert testimony is generally accepted, and Florida's Frye progeny rely on general acceptance as a proxy for evidentiary reliability such that in Florida "the Frye test is utilized . . . to guarantee the reliability of new or novel scientific evidence." Brim, supra, at 272; Hadden v. State, 690 So.2d 573 (Fla. 1997).
Publication in peer-reviewed journals is taken as an indication of that general acceptance. Williams v. State, 710 So.2d 24 (Fla. 3d DCA 1998); Berry v. CSX Transportation, Inc., 709 So.2d 552 (Fla. 1st DCA 1998). This accords well with a discussion of publication as part of the process by which a scientific technique becomes generally accepted. Faigman, Kaye, Saks & Sanders, Modern Scientific Evidence: The Law and Science of Expert Testimony §1-3.3.4 (West Group 1997).
Finally, Ramirez puts on the proponent of the evidence the burden of proving "the general acceptance of both the underlying scientific principle and the testing procedures used . . . by a preponderance of the evidence." 651 So.2d at 1168. Ramirez does not discuss these testing procedures further, but in Brim, supra, the Supreme Court cites to this passage from Ramirez and undertakes a sophisticated inquiry into the statistical analyses that underlie the expert's testimony much like the federal courts did in Estate of Hill v. ConAgra Poultry Co., 1997 WL 538887 (N.D. Ga. 1997); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940 (7th Cir. 1997); and Sobel v. Yeshiva University, 566 F.Supp. 1166 (S.D.N.Y. 1983), rev'd and remanded, 797 F.2d 1478.
The Florida court's analysis relies on hypothesis testing and the error rates of those tests, much as did the United States Supreme Court's analysis in Daubert. Brim's Frye-test analysis notes that the "DNA testing process consists of two distinct steps," the second of which is a statistical step "needed to give significance" to a match." 695 So.2d at 269. This second step is necessary because "[t]o say that two patterns match, without any scientifically valid estimate . . . of the frequency with which such matches might occur by chance, is meaningless." 695 So.2d at 270, quoting The Evaluation of Forensic DNA Evidence (National Academy of Science 1996). This is classic hypothesis testing, precisely the testing that Daubert suggests. The "chance matching" is precisely the Type I error rate of the test of the hypothesis that the DNA profiles match. Because the calculation of such an error rate requires that the hypothesis be tested, the de facto requirement posed here by the court is that the expert conduct the hypothesis test and report its error rate.
In its discussion of the need for the statistical step, the Brim Court relies substantially on The Evaluation of Forensic DNA Evidence (1996) (hereafter DNA Evidence), published by the National Academy of Science and authored by a panel of scientists, professors, and lawyers. Chapter 5 of DNA Evidence describes the statistical techniques used in DNA research. These DNA techniques involve posing hypotheses, testing them, and specifying their error rates. DNA Evidence says that the scientist should "evaluate the probability of finding" a false positive, which is, again, the Type I error, or, in more common usage, the level of statistical significance at which a hypothesis is tested. Of course, because finding the probability of rejecting a true hypothesis requires testing that hypothesis, this necessarily tells DNA testers to test an appropriate hypothesis and report the results of the hypothesis test and its level of statistical significance, which is of course the probability of finding a false positive.
Even though Brim reaffirms the Florida Supreme Court's declaration of its rejection of Daubert, the opinion cites with approval scientific and statistical language that ultimately instructs the empirical scientist/state-court expert-witness to pose a hypothesis that is implied by generally accepted biology or chemistry and then to test that hypothesis, reporting the results of the test and the error rate associated with the test. In short, the sources that the Brim court cites tell experts to conform to Daubert's first two criteria. Because Florida's Frye test explicitly rests on Daubert's third and fourth criteria, it can be difficult to distinguish between testimony that will satisfy Daubert and testimony that will satisfy Florida's Frye progeny.
The overwhelming majority of Florida state court cases involving expert testimony involve either polygraph, DNA, or a variety of sobriety tests. Virtually none of them involves the type of statistics-based social science testimony that is plentiful in the federal opinions. There are, however, Florida cases in the general area of toxic torts.
In E.I. DuPont De Nemours & Co. v. Castillo, 748 So.2d 1108 (Fla. 3d DCA 2000), the District Court of Appeal, Third District, overturned a $4 million award to a plaintiff born with severe birth defects after his mother's contact with an allegedly teratogenic compound while pregnant. The court held "that the trial judge failed to make the finding required by Frye, to wit: `whether the expert's testimony is based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs."'" 748 So.2d at 1115. The court went on to state that "[b]ased on the record in this case we hold that plaintiffs' scientific evidence, and the conclusions it embraces, should have been excluded, as the methodology used to obtain them is not generally accepted in the relevant scientific community. In the absence of this evidence plaintiffs presented no proof of causation. Accordingly, [defendants'] motions for directed verdict should have been granted." 748 So.2d at 1121.
In Berry v. CSX Transportation, Inc., 709 So.2d 552 (Fla. 1st DCA 1998), the plaintiff/appellant was an employee of CSX and alleged that excessive exposure to organic solvents caused his toxic encephalopathy. The defendant CSX objected to the proposed testimony of the plaintiff's experts, asserting that their opinions did not meet the standards for admissibility articulated in Frye and its Florida progeny. The trial court disqualified all of the plaintiff's experts, despite the fact that the record reflected that "appellants' proposed expert testimony was grounded upon numerous peer-reviewed and published epidemiological studies demonstrating an association between exposure to organic solvents and toxic encephalopathy." 709 So.2d at 554. The court asserted that to decide the case it must also decide whether the experts' opinions must be Frye-tested or whether it is only the "underlying scientific principle or methodology utilized by the experts in arriving at their opinions" that is to be Frye-tested. 709 So.2d at 565. The court held that "under Frye and its Florida progeny, when the expert's opinion is well-founded and based upon generally accepted scientific principles and methodology, it is not necessary that the expert's opinion be generally accepted as well." 709 So.2d at 567. Because the proffered testimony was based upon scientific principles that were generally accepted by a clear majority of the relevant scientific community, the district court reversed the trial court's exclusion of the plaintiff's experts' testimony.
Post Script, 2004:
Two related issues raised here bear some further reflection. The first is that it is increasingly unclear that Frye imposes a higher standard of reliability that does Daubert. There appears to be at least one credible systematic study that refutes such a notion, and the anecdotal evidence, suspect as anecdotal evidence must be, seems to weigh against the notion of a more lenient Daubert standard. Even the U.S. Supreme Court has clarified the sloppy Daubert language that has given so many cursorily informed commentators the wrong idea about Daubert implying laxity. See, for example, Weisgram. Other states, most recently Nebraska, initially rejected Daubert for reasons similar to Florida's, but then came to reject the notion of a stricter Frye and reversed field to adopt Daubert. Philips v. Industrial Machine, 597 N.W.2d 377 (1999). Florida's rejection of Daubert was based upon a seemingly faulty premise. The premises defects are beginning to show, Florida's rejection of Daubert may be ripe for challenge, and your present author would be privileged to discuss this issue with anyone contemplating such a challenge.
Second, Daubert seems already to work in Florida. In rejecting Daubert, Brim and its progeny seem to move in the direction of construing Frye, itself a reliability-based test, into a sort of virtual Dauberthood. I have personally won Florida Frye issues using relabeled Daubert arguments.
Florida courts explicitly require Daubert's fourth factor, that the expert's methods be accorded general acceptance, and they seem to look to Daubert's second factor, publication in peer-reviewed journals, as evidence of that general acceptance. Since, in disciplines from economics to DNA analysis, the scientific-type peers who review for the peer-reviewed journals require well-articulated and properly executed hypothesis tests, Daubert's first factor, conducted at strict error rates, Daubert's third factor, as near preconditions for peer reviewed publication, all of Daubert's four factors can very easily be implicated in a Florida Frye hearing. But let me be clear about this: I do not mean to say that the majority rule in Florida is that Frye issues are to be litigated using Daubert criteria. I simply mean that from a lawyering point of view, if you are among the Daubert cognoscenti, those skills will tend to bear you up well in Florida Frye issues.
Florida's four-step process is really three steps, since the fourth is just "admit the testimony." That leaves three actual steps and, in perhaps simply a less parsed way, they are much like Daubert's steps: Determine if the expert is qualified to offer the opinion, determine if the testimony is relevant and determine whether the testimony is reliable. The Daubert "qualified" and "relevant" steps have apparent analogues in the Florida "qualified and relevant" steps, and there are pretty straight faced arguments that Daubert's reliability-indicating four factors are as much a parsing of Frye's reliability-indicating general acceptance criteria as they are a replacement of it. There are other issues such as whether it is the judge or the scientific community making the reliability determination but they may be as much form over function as not.